Policing and Crime Bill (Sixth sitting)
Tuesday 12th April 2016
(10 years ago)
Public Bill CommitteesRead Full debate Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 12 April 2016 - (12 Apr 2016)
The Minister for Policing, Fire, Criminal Justice and Victims (Mike Penning)
I beg to move amendment 148, in clause 50, page 60, line 18, at end insert—
“(8) In the Criminal Justice Act 2003—
(a) in section 24A(5)(b) (purposes for which person may be kept in police detention) for “section 37D(1)” substitute “section 47(4A)”, and
(b) in section 24B(5) (application of provisions of the Police and Criminal Evidence Act 1984)—
(i) omit paragraph (a), and
(ii) in paragraph (c) at the end insert “except subsections (4D) and (4E)”.”
This amendment is consequential on the changes made in clause 50. It relates to persons who are arrested because they are believed to have failed to comply with conditions attached to a conditional caution.
The Chair
With this it will be convenient to discuss the following:
Government new clause 3—Release without bail: fingerprinting and samples.
Government new clause 4—Release under section 24A of the Criminal Justice Act 2003.
Government new clause 5—Duty to notify person released under section 34, 37 or 37CA of PACE that not to be prosecuted.
Government new clause 6—Duty to notify person released under any of sections 41 to 44 of PACE that not to be prosecuted.
New clause 48—Scrutiny of investigatory capabilities—
“(1) Police and crime plans produced under Chapter 3 of Part 1 of the Police Reform and Social Responsibility Act 2011, must include an annual assessment of the capability of the police to properly investigate crimes within the 28-day pre-charge bail time limit.
(2) The assessment must consider any—
(a) changes to the number of suspects released without bail,
(b) resource constraints, including staff numbers,
(c) safeguarding requirements of victims, witnesses and suspects, and
(d) issues around multiagency work.”
This new clause would make it mandatory for Police and Crime Commissioners to produce an annual assessment of the capability of police forces and other agencies to meet the mandated 28 day pre-charge bail limit.
New clause 49—Cooperation of relevant agencies in investigations—
“(1) The Secretary of State may by regulations require relevant agencies to cooperate promptly with police in carrying out investigations of suspects.
(2) Relevant agencies may include, but are not limited to—
(a) the Crown Prosecution Service,
(b) forensic examiners,
(c) health authorities, and
(d) banks and financial institutions.
(3) Alongside any additional duty to cooperate, the Home Secretary must carry out an assessment of the relevant agency’s resource capacity to provide relevant information or services within the 28 day limit for cases where suspects are released on pre-charge bail.”
This new clause would allow the Home Secretary to mandate cooperation of relevant agencies with police forces in conducting investigations, and would allow for scrutiny of whether relevant agencies have the necessary capacity and resource to cooperate within the required length of time.
Mike Penning
Briefly, the Government amendments and new clauses in this group are consequential, to ensure that we tidy up any loose ends. I know that the shadow Minister will speak in a moment to new clause 48 and, if I may, I will respond to his concerns when he has done so.
Jack Dromey (Birmingham, Erdington) (Lab)
Let me say at the start that we agree with the principle of what the Government are seeking to achieve. We want to raise issues of practicality that were cited, for example, in the evidence given to the Committee by both the National Police Chiefs Council and the chief superintendents.
New clause 48 would make it mandatory for police and crime commissioners to produce an annual assessment of the capability of police forces and other agencies to meet the mandated 28-day pre-charge bail limit. I stress again, as we said on Second Reading, that reform of police bail is absolutely overdue. The current system has been criticised from both sides, on the grounds that it unfairly leaves people under investigation for long periods before they have even been charged for an offence and that it does not offer the necessary safeguards in the cases of people who pose more of a risk to the public. I will say more on that later.
A more targeted approach is therefore needed that does not unfairly restrict the liberty of people whose guilt is far from proven but that has teeth when it needs to. The case of Paul Gambaccini is a stark example of why the system has to change. We are in complete agreement that we need a common-sense approach to cases in which people have been on bail continuously but no evidence is found. Investigations need to be conducted swiftly and fairly, yet a 2013 BBC freedom of information request, to which 40 police forces responded, found that 71,256 people were on pre-charge bail and 5,480 had been on bail for more than six months. Our concern is that the Government are mandating a 28-day pre-charge bail limit, the aim of which is welcome, but are not addressing the root causes of delays in investigations.
Let us start with the key problem with cases such as that of Paul Gambaccini: individuals who are suspected of a crime but who are not ultimately charged can be under investigation for a long time before a decision not to charge is reached. As we are well aware, that can have a hugely negative impact on the lives of suspects and their families, and in cases where charges are brought and suspects are eventually found guilty, we do not want a system that involves prolonged periods before victims see any kind of justice. We therefore need to tackle why these investigations take so long.
Alongside the measures contained in this Bill, the Government need to have a careful look at where the system can be improved, where extra capacity is needed and what impact reductions in resources are having. For example, Home Office workforce figures show that 40,000 police jobs were cut between 2010 and 2015, with a 30% cut in police community support officers, 20% fewer police staff jobs and 13% fewer police officers. The police are therefore juggling carrying out investigations with patrols, immediate response to emergency incidents and life-saving preventive work. Resources will inevitably have an impact on how quickly police forces can get things done and how able they feel to prioritise investigative work.
Do the Government have any considered idea of what impact resource reductions are having on the capability of forces to carry out timely investigations? What resources will be required under this clause? For example, as regards a super structure of police superintendents to oversee the changes proposed by the Government, the point has been made very strongly by the chief superintendents that it would take out several of their number whose job it would be to supervise the new arrangements that the Government seek to put in place. Crucially, our amendment would require an assessment of this question by police and crime commissioners themselves.
Similarly, cuts to the Crown Prosecution Service and to other agencies are being seen to have a knock-on effect, and I will come back to that point shortly. We do not want the outcome of these proposals to be simply that more people are released not on bail. Chief Constable Alex Marshall noted in his evidence to the Committee that, according to the College of Policing’s bail pilot, early indications of the data were that 70% of those released on pre-charge bail
“were bailed for more than 28 days.”
This was because officers were waiting, while
“getting professional statements from doctors and others, getting phones and computers analysed, taking detailed statements from vulnerable victims of crime, getting banking information and details, and getting forensics analysed”.
He went on:
“We agree that the time limits should be closely monitored…The onus will rest on many people across the system to respond much more quickly to requests from the police conducting their investigation.”––[Official Report, Policing and Crime Public Bill Committee, 15 March 2016; c. 78, Q45.]
He is absolutely right. We do not want a situation in which, due to factors beyond their control, police have no choice but to release not on bail in order to meet the time limit. Clearly, in cases where bail conditions play a necessary role in safeguarding, this would have serious consequences for victims, witnesses and the general public.
In the Government’s consultation, suggestions from respondents included consideration of the needs of the victims of crime, including safeguarding requirements and special interview requirements. The need to safeguard complex investigations was also raised. Early indications of the College of Policing’s pilot were that, of the 950,000 arrests in a year, about 30% were released on pre-charge bail. If that starts to change dramatically, and many more people are released not on bail due to the proposals in the Bill, the Government will have to reflect on and address that. That is why the part of this amendment that requires an assessment of any changes in the number of people released not on bail is so important. Alex Marshall’s comments relate very closely to new clause 49 and the issue of third-party delays preventing police officers from taking critical decisions within the required timeframe in an investigation.
This amendment would allow the Home Secretary to mandate co-operation of relevant agencies with police forces in conducting investigations, and would allow for scrutiny of whether relevant agencies have the necessary capacity and resource to co-operate within the required length of time. The Crown Prosecution Service, forensic examiners, health authorities, banks and financial institutions, to name but a few, are all third parties that the police rely on in the preparation of a case, so the Government’s proposals in the Bill address only one part of the investigatory process.
In the Government’s own consultation on the proposal, they found that the most commonly raised suggestion was that matters outside police control should be taken into account, such as Crown Prosecution Service timescales, forensic examinations—including digital—and international inquiries.
In the 119 responses—or 40% of those who responded —highlighting the resource implications of each model, the most commonly raised issues were on the need for increased resources, including greater staff numbers. As Committee members will be aware, a number of pieces of existing legislation impose statutory duties on third parties to provide reports or information within a set timeframe, such as the Coroners and Justice Act 2009, the Coroners (Investigations) Regulations 2013, the National Health Service Act 2006 and the Female Genital Mutilation Act 2003. However, as we have argued with pre-charge bail limits, the Government must not just mandate co-operation by third parties, they must also assess the relevant agencies’ capacity and, crucially, take a proactive approach to ensuring that agencies have the tools at their disposal to provide relevant information or services within the limit. For example, when consulted on the proposals, the Ministry of Justice highlighted concerns that the numbers of cases that would fall to be considered in the Crown court will exceed the available capacity in Crown court centres. Further to that, the Government proposed to have all pre-charge bail hearings dealt with in the magistrates court. I would be interested in the Government’s assessment of the capacity of magistrates courts and the ability of the Ministry of Justice to accommodate the projected costs of the additional hearings.
The Government need to listen on this important issue. In principle, they are doing the right thing in terms of the direction of travel, but they need to listen to the widespread concerns about the practicalities of implementing their proposals; they need to listen to what the police and other agencies are telling them about the major constraints on timely investigation, address those constraints and take a comprehensive approach to scrutinising the role of all agencies in the investigatory process, including, but not limited to, the police. That is what these two new clauses seek to achieve, and I urge the Government to take further action in parallel with their proposals in the Bill.
Mike Penning
May I say at the outset that I acknowledge and understand where the shadow Minister is coming from, even though I disagree on the need for the new clauses? We acknowledge that the new system will put pressures on the forces. We accept that, but at the moment we have a situation where the police can have unlimited police bail. That is unacceptable. We have consulted, listened carefully and 28 days should be the marker going forward. Of course, a superintendent or above can authorise extensions, and magistrates can authorise beyond that. We absolutely accept that the police will need more time in some complex cases and where the crime changes, but they have to explain why, unlike in the present system.
Whether and how the new system is working will be assessed by Her Majesty’s inspectorate of constabulary within its police effectiveness, efficiency and legitimacy reviews. That is a robust system. I do not think there is a PCC or chief constable in the country who would argue that Tom Winsor’s regime is not fair and robust. Sometimes they say to me that it is not fair and robust—but it is independent, it is there, and that is exactly right. We will keep the need for further reporting under review, but I do not want to put further bureaucracy on to the PCCs.
I fully understand the inter-agency point. We need to break down the silos so that we work more closely together. However, the shadow Minister referred to the consultation in his comments; a clear majority—two thirds—of consultation responses were in favour of establishing memorandums of understanding between the agencies rather than a statutory review. That is what the consultation said, and that is why we have gone down this route rather than the statutory one. I say again that we will keep that under review—but if there is a consultation where two thirds respond in favour of one way, and they are then completely ignored in favour of the statutory route, they will argue, “What is the point of a consultation?”.
It is so early in the morning to disagree already, but although I understand where the shadow Minister is coming from, the Government, sadly, do not feel the need for new clauses 48 and 49.
Jack Dromey
First, the Police Minister is right to be frank: this set of proposals will put pressure on not just the police but a whole range of other agencies. I note what he said of Her Majesty’s inspectorate of constabulary and its PEEL reports, and I add that the College of Policing and the Home Affairs Committee will keep this matter under review. I also welcome the proposed memorandum of understanding so that we can make the new system work. On that basis, and given those assurances, we will not press our amendments to a vote.
Amendment 148 agreed to.
Clause 50, as amended, ordered to stand part of the Bill.
Clauses 51 to 59 ordered to stand part of the Bill.
Clause 60
Restrictions on places that may be used as places of safety
Mr Kevan Jones (North Durham) (Lab)
I beg to move amendment 157, in clause 60, page 68, line 29, at end insert—
“( ) Before a house, flat or room where a person is living is used as a place of safety the patient must first be offered one of the following locations as an alternative place of safety—
(a) a residential accommodation provided by a local social services authority under Part III of the National Assistance Act 1948 or under paragraph 2 of Schedule 8 to the National Health Service Act 1977;
(b) a hospital as defined by the Mental Health Act 1983; or
(c) a mental health care home.”
This amendment would require that a patient was offered a health-based place of safety as an alternative to their, or someone else’s, home being used as a place of safety.
The Chair
With this it will be convenient to discuss the following:
Amendment 159, in clause 61, page 69, leave out lines 31 to 38 and insert—
“the point at which the decision is taken to remove a person to a place of safety, or keep them at the current place of safety.”
This amendment would mean that the permitted period of detention started when the decision was taken to remove a person to a place of safety, rather than the point at which they arrived at the place of safety.
Amendment 158, in clause 61, page 69, line 31, leave out “24” and insert “12”.
This amendment reduces the permitted period of detention to 12 hours.
Government new clause 28—Protective searches: individuals removed etc under section 135 or 136 of the Mental Health Act 1983.
New clause 11—Detention in places of safety: annual reporting—
“(1) Police forces in England and Wales must publish an annual report containing statistics on the usage of the power to detain a person in a place of safety.
(2) This report shall contain, but need not be limited to, information on—
(a) the number of detentions;
(b) the age of detainees;
(c) the length of detention; and
(d) the location of the detention.”
This new clause would require police forces to report annually on the number of detentions in places of safety, including information on the age of the detainee and the location and duration of the detention.
New clause 12—Access to Independent Mental Health Advocates—
“(1) A person detained in a place of safety under section 135 or 136 of the Mental Health Act 1983 shall have the right to an independent mental health advocate (see section 130A of the Mental Health Act 1983).”
This new clause would extend the right to an independent mental health advocate to those detained under sections 135 or 136 of the Mental Health Act 1983.
New clause 50—Powers under the Mental Health Act 1983: reporting and review—
“(1) One year after section 59, 60 and 61 of this Act come into force the Secretary of State must lay before parliament a report on the impact of the changes to powers under the Mental Health Act 1983 on mental health assessment and outcomes.
(2) This report shall contain, but need not be limited to, information on—
(a) length of time taken from commencement of mental health assessment of an individual under sections 135 or 136 of the Mental Health Act, to either the discharge, admittance to hospital or extension of period of detention of these individuals,
(b) availability of trained medical professionals to carry out assessments, and
(c) availability of hospital beds for persons deemed to require inpatient care.
(3) In producing this review the Home Secretary must consult the Secretary of State for Health.”
This new clause would make it mandatory for the Home Secretary to report on the impact of Section 59, 60 and 61 on mental health assessment and outcomes. This would allow for scrutiny of whether the proposals improve the outcomes for those subject to police detention and mental health assessment, and whether health providers have the capacity to carry out timely assessments and provide any necessary inpatient care.
Mr Kevan Jones
It is a pleasure to serve under your chairmanship, Mr Howarth. I have said in Committee, and on the Floor of the House, that I recognise that the Government are trying to make progress on ensuring that the way in which people with mental illness are treated by the police is both compassionate and secures them the help that they deserve. The problem that is evident today, and will be as the Bill continues its journey through this House and the other place, is that although the Home Department is trying to improve the situation, the elephant in the room is the resources and activities of the Department of Health. This is an area in which two Departments are intertwined, because the issues are quite clearly not, in essence, a police matter, although the police are left to resolve the problem.
Amendment 157 recognises that the Government have tried to emphasise that a police cell is the worst place for not only a young person but an adult. I commend the Government’s initiative in trying to ensure that few adults, and certainly no children, are detained in a police cell. We have to ask why they are currently detained, which is—I am going to be very political—because of the reduction of beds and facilities by the Department of Health. I have tabled amendment 157 because the Government, quite helpfully, have no objection to a place of safety, under the Mental Health Act 1983, being someone’s flat or home, because that is a place in which those individuals can be supported by mental health services and other agencies. That is important. The problem is that it might become the default position that people are forced to stay in their homes if an alternative is not available. I put it to the Committee that most of us, given the choice between staying at home or being in a police cell, would stay at home. However, that does not guarantee that home is the best place of safety.
James Berry (Kingston and Surbiton) (Con)
The hon. Gentleman makes a good point and speaks with authority on the subject. Does he recognise that there are some excellent local examples of clinical commissioning groups working well with the police? In Kingston we have a new project where the mental health trusts, the clinical commissioning group and the Met police have come together to provide just the kind of facility we are talking about. Although there is more to do nationally, there are some good local examples of the policy working.
Mr Kevan Jones
I agree with the hon. Gentleman. One of the few good things that came out of the Health and Social Care Bill was that it allowed local providers to develop contracts out of the box, perhaps with the third sector and others, to provide good local services. I am on record as having said that. I have to say that in my own area and nationally that has not happened in practice because unfortunately the default position is that the contracts that have been awarded are so large that a lot of small, good voluntary organisations that could provide those services are not getting a look in.
The hon. Gentleman makes a good point about the project in his constituency, but we need to ensure that there is uniformity across the piece. If we have a situation where the only option is for people to go to a police station or stay at home, that is not satisfactory.
Amendment 159 is also probing, aiming to explore and again bring pressure on the Department of Health. With regard to the time limits put in place around the place of safety, it is important that people are assessed quickly. It is no good waiting, in a police cell, hospital or any other facility, for a long time without assessment.
When being removed to a place of safety, it is important that the assessment is made quickly and undue time limits are not in place, for example, if someone has to travel a long distance to access a service. At the point of detention, a decision would start with the removal of the individual, certainly in terms of Lord Crisp’s report for the Commission on Acute Adult Psychiatric Care. That gives examples of people having to travel up to 50 km to access a mental health bed. If that were done in the back of a police car or van, it could take a long time and add to that individual’s distress. Again, I want to get the Minister’s thinking; I do not think for one minute that she wants anyone to be detained for an unduly long time without assessment. We are probing to find out what the Government are thinking in terms of trying to put pressure on the services that provide assessments. Can we get intervention at an earlier stage?
Amendment 158 is linked to the previous amendment and is another probing amendment. I welcome the reduction from 72 to 24 hours, showing again that the Government want to improve the situation. This probing amendment would further reduce the time from 24 to 12 hours. I would like to understand the Government’s rationale for agreeing to 24 hours. Under existing and proposed legislation, if someone is clearly incapable of assessment, that period can be extended. The Royal College of Psychiatrists has a target of three hours for someone to be assessed. I accept that there are difficulties: for example, if someone is intoxicated or has some other issue, with drugs or anything else, an assessment may not be possible for a long time, but I think that 24 hours is too long.
I have tabled these amendments to assist the Minister to press her Health colleagues to push the boundary. I accept what the hon. Member for Kingston and Surbiton said about some excellent local provision. We do need a uniform service, but it would be completely wrong for individuals to be detained longer than necessary. I would not, for one minute, suggest that any healthcare professional, police officer or the Government, for that matter, want to detain people. Early diagnosis and assessment are in the interest of the individual and help to ensure an efficient use of time.
Let me deal with new clauses 11 and 12. I may push new clause 11 to a vote because it is important. One fear I have is that we have before us a Home Office Bill which deals with the problem faced by police forces up and down the country of people being detained under the Mental Health Act. The right aim of the Home Secretary is to ensure that no one is detained in a police cell. Certainly, her target for young people is welcome and she clearly wants to get to a position whereby no adult is detained in a police cell either. The problem I have with that is that we may achieve the target in terms of the police—a police authority or a police and crime commissioner may be able to stand up and say, “We have nobody in police cells who has been detained under the Mental Health Act”, but unless we have some indication of what has actually happened to those individuals, it could mask a problem. It could move away from the clear spotlight that has been put on this, certainly in terms of young people being detained in police cells.
If the answer to the written question that we ask every year is that nobody is being detained in police cells, that is good, but if people are languishing in the community without support, or are unable to access the treatment that they want, that would let the Department of Health—again, not the Home Office—off the hook in terms of its responsibility to those individuals. It is important that we have reliable statistics, because we need to see where there are pressures, which there certainly are. Having talked to my local police force, I know that forces throughout the country are dealing with a lot of mental illness problems that they are not qualified to deal with. The system has failed when people with such problems turn up in police cells, so we need to address that.
I feel passionately about new clause 12, because, very strangely, the only people who are not allowed advocates under the Mental Health Act are people who are sectioned under section 135 or 136. I am not sure why that was agreed when that Act passed through this place. It may have been to do with cost, and I understand that if we offer everyone who is sectioned an advocate, costs will be incurred, but we are talking about ensuring that people with mental illness are given the right approach and support. If someone is arrested for any other crime, they should have an advocate to speak on their behalf. Many people think that those with mental illness will have family members or others to help them, but there are clearly individuals who do not, so there is no one there to speak on their behalf. There are also individuals who go into crisis whose family members have never experienced anyone with mental illness and so will not know the right questions to ask or the rights of the individual.
The need for an advocate is particularly relevant to the issue I mentioned earlier: the home becoming a place of safety. Is someone really going to object to their home becoming the “place of safety” if they have no one to advocate for them or understand their position? I do not think they would. The default position would be that the easiest option is to stay at home, even though it might not be the best option for some individuals, so advocacy is very important.
As I said on Second Reading, sections 135 and 136 are unique powers that are, quite rightly, not used lightly. They are used to protect either the individual themselves or the people who might be in danger from their actions, but that still leads to people’s liberties being taken away from them. If the default position in this country is that someone who is arrested for a crime is entitled to legal representation, it is not too much to ask in this day and age that people who are detained—we are not talking about a massive number of cases—should at least, within a permitted period, be allowed an advocate to speak on their behalf and advise them. Properly done, that may well save time and money by ensuring that the individual takes the advice they are offered and by allowing the system—the police and health services—to ensure that that person is directed to the help they require.
The Chair
As I understand it, the hon. Gentleman has expressed his intention to press new clause 11 to a Division.
The Chair
It might be helpful to the Committee if I point out that although both new clauses can be debated at this point, any Divisions will come later when we deal with new clauses.
Jack Dromey
I pay tribute to my hon. Friend the Member for North Durham, who is a brave and doughty champion of those who have suffered from mental illness. There is no question but that real progress has been made in recent years, and he can take credit for the outstanding role that he has played in that process, which we see the benefits of in our constituencies and across the country.
I have seen non-custodial places of safety at the Oleaster suite in Birmingham and in the form of street triage arrangements around the country, including one team of three outstanding police officers in the east midlands. One of them took me to one side and said, “I’m passionate about what I do because my brother was diagnosed as a paranoid schizophrenic eight years ago. I’ve supported him; I now want to support others like him.” The Home Secretary is absolutely right to say that a police cell is no place for an ill person. I therefore completely support everything that my hon. Friend the Member for North Durham has said.
I want to speak only to new clause 50, although we support what has been said in respect of new clauses 11 and 12 and I will briefly refer to them. In our country there is a right to be represented, and that is all the more important in circumstances where there is a vulnerable individual—often one who is going through a terrible trauma in their life—who requires the support and advice that an independent representative or advocate can give. We therefore strongly support what my hon. Friend has said in respect of new clauses 11 and 12.
Returning to new clause 50, I will take this opportunity to repeat the concerns that were expressed across the House on Second Reading—the debate on these issues was excellent—and the concerns of medical professionals and the police. Although we welcome the objective of the proposals, the combination of the changes could put professionals in a difficult position. Assessments of those detained under the Mental Health Act 1983 cannot be completed until a bed has been identified. Professionals should not have to choose between breaking the law by exceeding the 24-hour period if a bed cannot be identified and not breaking the law but releasing someone who should be detained. Yet HMIC has found that some of the most common reasons why the police used custody as a place of safety include
“insufficient staff at a health-based place of safety”
and
“the absence of available beds at the health-based place of safety”.
I am sure that the Minister recognises that such problems will not be fixed by the Bill or even by the Home Office. It is therefore essential that, alongside the Bill, the Home Secretary and the Health Secretary work together to ensure that health service commissioners open sufficient beds and train sufficient professionals to deliver these welcome new commitments. New clause 50 would make it mandatory for the Home Secretary to report on the impact of the proposals in the Bill on mental health assessment and outcomes.
The hon. Member for Broxbourne (Mr Walker) spoke eloquently on Second Reading. He said:
“We cannot make demands on the police to change the way they do things in providing places of safety unless we actually provide places of safety.”—[Official Report, 7 March 2016; Vol. 607, c. 59.]
He is absolutely right. There are not enough beds in this country for mentally ill people who are suffering real crises and, as my hon. Friend the Member for North Durham has said, where beds are made available, long distances sometimes have to be travelled to take the individual in question to a safe place where they can be looked after. We therefore need cast-iron guarantees from the Department of Health that it is in a position to support police officers in treating those suffering from mental health crises with the dignity and support that they deserve.
The mental health crisis care concordat requires NHS commissioners to commission health-based places of safety for that purpose. It states:
“These should be provided at a level that allows for around the clock availability, and that meets the needs of the local population. Arrangements should be in place to handle multiple cases.”
However, there is not a specific statutory duty to commission health-based places of safety. In theory, the Mental Health Act could be amended to introduce a duty for clinical commissioning groups to commission suitable and sufficient health-based places of safety for persons detained under sections 135 or 136. Have the Home Office or the Department of Health considered that? We understand that, strictly speaking, such legislation is outside the scope of the Bill, but in parallel with the provisions here, the Home Office must have assurances from the Department of Health that they are going to make available the necessary capacity. That is why it is crucial to our amendment that the Secretary of State for Health is consulted. The Home Secretary and the Health Secretary should work together to ensure that the proposals improve the outcome for those subject to police detention and mental health assessment, and that health providers have the capacity to carry out timely assessments and provide any necessary in-patient care.
In conclusion, is there welcome progress in the right direction? On that there is absolutely no hesitation. However, on the issues that I have raised, the Government have yet to give assurances. I urge the Minister to act, to give Parliament, the public and the police whatever assurances are possible to ensure that the proposals in the Bill are not only brought forward with worthwhile intentions but implemented in practice, and that we avoid the possibility that in some cases they will do more harm than good.
The Parliamentary Under-Secretary of State for the Home Department (Karen Bradley)
It is a pleasure to serve under your chairmanship, Mr Howarth, and to be back from Easter recess; I hope you had a pleasant break. I also pay tribute to the hon. Member for North Durham, who has campaigned tirelessly on this issue for many years and who is known as a leading advocate for those suffering with mental health conditions, be they crises or long-term conditions. I respect him enormously; I look forward to meeting him soon to discuss the many points he has raised today and to ensuring that the Government take notice of his experience and expertise and that we can work together on these matters.
I also want to make a point about what we are dealing with here. In a section 135 or section 136 detention, we are not dealing with a long-term condition that is being managed; we are dealing with a crisis—with somebody who, for whatever reason, either for their own protection or that of others, needs to be detained under the Mental Health Act. This has to be a short-term detention, and it should be one in which they are treated with dignity and respect. Somebody who breaks their legs does not get taken to a police cell, and nor should somebody having a mental health crisis. They have committed no crime, but for their own safety and that of others, they need a short-term temporary detention. That is not the same as being sectioned long term under the 1983 Act; it is a short-term issue. It might arise, for example, as a result of alcohol or drug abuse, because of some personal issue that has happened, or—let us admit it—because there has been a failure, where something has been identified from a health perspective but without identifying that the individual may go into crisis. It is about the crisis.
I want to pay tribute to my own police and crime commissioner, Matthew Ellis in Staffordshire, who I think was the first police and crime commissioner to identify how much police time was being taken to deal with people in a mental health crisis. He estimated that it was 20%: one in five police days were taken up with dealing people in a mental health crisis. It says a lot about the system that was in place, in which it was easier for police to deal with this than it was for health workers. We know that we are dealing with a problem that has grown up over many years; we are tackling it and ensuring that it is dealt with appropriately.
I want to assure the Committee that this issue is not just dealt with by the Home Office. I work very closely with other Departments: not just the Department of Health, where my right hon. Friend the Minister for Community and Social Care is as absolutely determined as I am to ensure that this matter is dealt with, but the Department for Communities and Local Government, the Department for Education and others. We need to ensure that we are all working together to identify the signs of mental health issues and ensure they are dealt with so they do not lead to a crisis. That is the important point.
The crisis care concordat, a cross-Government initiative, has led to a halving of the number of people being detained in police custody, but that is not good enough. That is why we are taking the steps in the Bill. We want to see this practice as the very rare exception when somebody in a mental health crisis ends up in police custody. We want the vast majority, and certainly those under 18, to be in a health-based place of safety.
The shadow Minister made a point about the east midlands police officer’s family member. Since I took on this brief, a number of people have spoken to me about their personal experiences of mental health in their families. This is something we are all waking up to in many ways. The issue has not been recognised for many years and I am glad we are talking about it and recognising the scale of the problem and ensuring that support is available.
I will turn to the amendments tabled by the hon. Member for North Durham. As he said, amendment 157 seeks to introduce a requirement to offer a health-based place of safety before a private home is used. When a person is in a mental health crisis, it is important that they have access to the appropriate medical care at the earliest stage. I know we all agree on that.
In most section 136 cases people will be taken to a health-based place of safety, as is the case today. Usually, that will be a bespoke facility provided by the NHS that meets the national standards set out by the Royal College of Psychiatrists. The shadow Minister and I and my colleague who previously dealt with mental health have all visited health-based places of safety and been incredibly impressed by the work to provide somewhere safe and secure but also does not feel like a police cell. It feels like a medical setting and is comfortable. I visited one in Sussex—I know I have a Sussex MP behind me—where Katy Bourne, the excellent police and crime commissioner, has done incredible work on ensuring that there are sufficient and appropriate places of safety.
That facility at Crawley hospital has private access; the patient does not walk through the main hospital and A&E. The patient comes through a private door at the back into the mental health unit but in a secure section 136 facility where there is a bed, a private room and a bathroom. That is somewhere where someone can be treated with dignity while they experience the crisis, and can be diagnosed appropriately. Great credit should be paid to the many clinical commissioning groups and police and crime commissioners who are working together to ensure that those places of safety are there.
Maria Caulfield (Lewes) (Con)
I am slightly concerned by Opposition amendments that want to create a national picture. Having a bespoke local model has meant that Sussex has gone from having one of the highest levels of detention of people in crisis to one of the lowest. That is working very well for the police, the health service professionals and, most of all, for the patients.
Karen Bradley
My hon. Friend, who represents her Sussex constituency extremely well, is right. When we looked at the figures, we asked why Sussex has a problem. It has Beachy Head and that is a particular problem. There is no Beachy Head in Staffordshire. There is a particular problem that the police and crime commissioner and the health services in Sussex have to deal with. The work that has been done there should be commended. Katy Bourne has worked not just to provide the health-based places of safety but with the Richmond Fellowship to understand the problems. That includes understanding why people are not always able to go to a health-based place of safety. It is shocking to discover that there are many health-based places of safety that will not take a person under the influence of alcohol.
We know that the majority of crises occur when somebody is under the influence of alcohol or drugs, so it is important to educate and have appropriate facilities. I visited an excellent facility in Merseyside where they are able to cope with somebody under the influence of alcohol, give them time to sober up and recover from the alcohol or drugs, and then assess them appropriately as to their ongoing medical care needs.
Jack Dromey
The Minister speaks with authority and sincerity, and we welcome the progress that has been made. Unusually, what we want to do on this occasion is strengthen the arm of the Home Office because, while it is true that there are excellent examples of good provision all over the country, it is uneven and patchy, and too many people who suffer mental illness are still being let down. The crucial point—she may be coming to this—is how the Home Office addresses the reality that, ultimately, it is the Department of Health that funds this provision. Unless the Department of Health is compelled to work with the Home Office, the Home Office will forever have problems.
Karen Bradley
I know that it will seem odd to the shadow Minister for a Home Office Minister to refuse further powers, but I will at this stage. I will return to that point later.
I will deal first with whether a health-based place of safety is the most suitable place of safety in every case, which goes to the nub of amendment 157. As the hon. Member for North Durham knows, a private home can already be used as a place of safety for a person detained under section 136 of the 1983 Act if the occupier consents. Clause 60 will make it possible to use a private home as a place of safety after a section 135 warrant has been used to enter those premises.
Where consideration is given to using a private home, it should be because it is the most appropriate place of safety for meeting that person’s needs, and not due to a lack of better health-based alternatives. In determining which place of safety to take a person to, those involved will need to consider all the relevant circumstances in the round. However, if the person concerned is particularly frail or likely to be very distressed if away from familiar surroundings, removing them from a home setting may be judged to be, on balance, more harmful than helpful. Conducting the mental health assessment in the home may therefore prove both quicker and a more satisfactory experience for all concerned. Similarly, it may be preferable to take a young person to their family home, rather than detaining them in a strange place where they know no one.
There is no question of a person being taken to a private residence or forced to remain there against their will. The use of a private dwelling as a place of safety will require the active consent of both the person detained and the occupiers of the residence.
The shadow Minister talked of street triage. When I have met street triage teams across the country and seen mental health clinicians working with law enforcement, the best cases have been where the law enforcement officer has allowed the mental health professional to take responsibility for the necessary decisions. I have seen examples of the mental health professional, rather than the police officer, going into the place where the individual in crisis is, assessing them and determining whether they should be arrested or detained, whether at their own home, at somebody else’s home or in a health-based place of safety.
Anybody who has been in a police custody suite—I hasten to add that it was not as an inmate, in my case—will know that it is stark and brightly lit, with no shade and nowhere to hide. It is a horrible environment for somebody who is ill to find themselves in. Going to a health-based place of safety is a much better option, but it may be that some people can be treated better and get the appropriate care in their own home. I assure the hon. Gentleman that we are not saying that there is no need for health-based places of safety—absolutely not. We are determined that health-based places of safety will be available as they are needed, but for some people it is better to be treated in their own home. In the majority of cases I genuinely believe that the health-based place of safety is the best place, but for a small number that will not be the case.
The Bill is designed to increase the flexibility that police and medical professionals have to act in the best interests of the person concerned in a wide range of circumstances, while ensuring that appropriate safeguards remain in place to prevent abuses of such a system.
Amendment 159 seeks to provide that the period of detention would commence when a decision to detain was made, rather than on the person’s arrival at a place of safety. As the hon. Member for North Durham will know, sections 135 and 136 enable someone to be removed to a place of safety if that is required. Once they arrive at the place of safety, it is essential that the mental health professionals have sufficient time to conduct the assessment and arrange any further care and treatment that are required. Any individual in such a circumstance must have the opportunity to have a thorough assessment that is not driven by detention deadlines.
Amendment 159 would unfairly penalise both the people in need of care and the health professionals assessing them if the decision to remove them was taken in an isolated place and if getting them to a place of safety would take some time. I know from my constituency that in isolated rural constituencies, things just take more time. As it happens, one also cannot give birth in Staffordshire Moorlands because there is no maternity facility. If one goes into labour, it will take at least half an hour to reach a maternity hospital. That is the reality of isolated rural communities.
Similarly, what about situations in which removal is difficult and risky for all concerned—for example, when someone is threatening to jump off a bridge? An attending police officer would probably make the decision to detain very soon after arriving on the scene, but it might take time to get the individual off the bridge. Would it be reasonable to require the police officer, in that highly pressured situation, to think about the clock ticking towards a time when they would have to release the person, whether or not they had managed to get them to a suitable place for a mental health assessment?
I do not think that that is what the hon. Gentleman intends with his amendment. I think he intends to ensure that the person is transported to a place of safety as quickly as is reasonable. That can be addressed through guidance and the performance management of ambulance response times, rather than through legislation. Front-line professionals need to make the right decisions, taking account of the circumstances and the individual’s best interests.
Amendment 158 seeks to reduce further the permitted period of detention. As far as I can see, there is no disagreement among members of the Committee that the current period of up to 72 hours is much too long. It was put in place to take into account bank holidays, weekends and so on, but that is not good enough. We cannot have a situation in which, because someone has a mental health crisis on the Friday night of a bank holiday weekend, they find themselves in a police cell for 72 hours. That is simply unacceptable. It cannot be right to hold someone who is suffering a crisis and is in urgent need of a mental health assessment against their will for up to three days anywhere, not just in a police cell.
Clause 61 deals with that issue by introducing the concept of a permitted period of detention, and setting that period at 24 hours. We have also allowed for an extension by a further 12 hours if—and only if—the person’s clinical condition merits it. This is not a target time. Just as they are now, we expect that the vast majority of cases will be resolved much more quickly. The Royal College of Psychiatrists has recommended, as a matter of good practice, that the assessment should start within three hours of the person being detained, and that has been built into the Mental Health Act code of practice. I want to be clear that 24 hours is not a target. We do not expect that a mental health assessment will start at 23 hours. We want it to start as soon as is reasonably practical, to ensure that the person gets the assessment and treatment that they need as soon as it is required.
We have been told by stakeholders that there will be occasions when the clinical condition of the person is such that they simply cannot be assessed immediately—for example, because they are intoxicated through drugs or alcohol. We have listened to that advice, and the maximum permitted period of detention has been set at 24 hours so that time is built in for the effects of intoxication to wear off. Otherwise, we would risk creating a situation in which the assessment process was made difficult or impossible because the person was unable to participate fully.
Equally, a shorter maximum detention period would risk the person having to be released before they had been assessed because they were not yet clinically fit to participate. Clearly, that would be in no one’s best interests. For those reasons, we have set the permitted period of detention at 24 hours. In the Government’s view, that provides a good balance between keeping periods of detention as short as reasonably possible and making sure that the assessment can be carried out in the most effective way.
The provision for an extension of not more than 12 hours over and above the original 24 hours, is for the very rare cases where the clinician responsible for carrying out the assessment is satisfied that the person’s clinical condition is such that the assessment cannot be started or completed within the 24-hour period. I want to be clear here: the provision to extend beyond 24 hours will be based solely on the person’s clinical condition. There is no scope for it to be used in any other circumstance, such as staffing problems.
In practice, the average period of detention is now less than 11 hours. That time includes the person being detained, the assessment being made and any future care or treatment arrangements arising out of that assessment being put in place. In the majority of cases, the necessary processes are already completed well within 24 hours. Of course, we recognise that the reduction to 24 hours may represent more of a challenge in some areas than others, but the work that is going on across England to improve mental health crisis care services, backed by both the national crisis care concordat and the 94 local concordat groups, is helping to develop services that can respond to the changing needs of the areas they serve.
I hope that I have reassured the hon. Member for North Durham that the 24-hour time limit is not some arbitrary figure that has been chosen for convenience, but a deliberate decision that seeks to establish the balance between compulsion and care that I mentioned earlier.
New clause 11 seeks to introduce an annual reporting requirement in respect of detention in places of safety. The Government agree that the police should be transparent about the use of their powers under the Mental Health Act, so that we can see how often these sensitive powers are used, who they are used for and what further actions are taken. That will enable the changes being made through the Bill to be monitored effectively. It is only through looking at the data that we are in the position we are in. When my right hon. Friend the Policing Minister had responsibility for this area, he was determined to get to the bottom of what was and was not working well, and to make the decisions and changes that were needed to get to things working well across the country.
The Health and Social Care Information Centre and the National Police Chiefs Council publish annual data on detentions under sections 135 and 136 of the 1983 Act. For section 135, data are provided by health services covering the volume of detentions in which people are taken to a health-based place of safety. For section 136, the data include the numbers of people taken to police custody and health-based places of safety and are provided by the police and health services respectively.
However, we know that police data in this area have varied in quality. As a result, the Home Office is working with forces across England and Wales on a new data collection system for section 135 and 136 detentions to raise the level of consistency across the country. The new data set is voluntary in 2015-16, but will become a mandatory part of the Home Office’s annual data requirement for all forces in England and Wales from April this year—this month.
The annual data requirement will capture not only the number of detentions, but the age, ethnicity and gender of the people detained; the place of safety used, including, where applicable, the reason for using police custody; and the method of transportation and, where a police vehicle is used, the reason why. We intend to publish the data annually to ensure that there is full transparency, so I hope the hon. Member for North Durham will not need to ask written questions at that point.
Mr Kevan Jones
I welcome what the Minister has said, as it goes to the core of what new clause 11 aims to achieve. In what format will those data be published? Will there be a consistent approach, as she suggests, so that areas can be compared? That is the other important point to consider as this legislation progresses: we must ensure that it is working, that people do not end up in police cells and that we have comparable data from different areas.
Karen Bradley
The hon. Gentleman is absolutely right. If we do not have comparable data, we cannot compare. My right hon. Friend the Policing Minister, who set this work in train, was adamant that we needed comparable, appropriate data, which would be available online, so that we could make a fair comparison.
It is a fair suggestion that the length of time for which people are detained should be recorded, but there are practical difficulties. It would be incredibly difficult for the police to keep such information, because, quite frankly, we do not want police officers to be part of the process once somebody has been detained under section 135 or 136 of the Mental Health Act, apart from in the very rare cases where a police station is used.
Mr Kevan Jones
As I said, my amendments are probing amendments. I thank the Minister for the full way in which she has responded to them. I know, and I want to put it on the record, that she, too, has a genuine interest in this subject and wants to do the best for individuals who suffer mental health problems.
I welcome the Minister’s response to new clause 11. The data are going to be very important, because they will attest to whether the changes are working. By comparing areas with one another, local scrutiny will allow areas to improve their situations and to learn from best practice. As she said in response to an intervention, what happens in one area can be transferred to another.
I hear what the Minister says about new clause 12. I accept her point that this situation is very different from being sectioned under section 2 of the Mental Health Act, but for people to be detained without any right to advocacy is unique. Like her, I do not want to overburden or inhibit the system, but there needs to be a basic right for individuals to have access to information. Given her commitment to further discussions on new clause 12, I shall not press it to a vote, but we may come back to it on Report. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 60 ordered to stand part of the Bill.
Clause 61 ordered to stand part of the Bill.
Clause 62
Application of maritime enforcement powers: general
Amendment made: 214, in clause 62, page 71, line 29, at end insert—
“( ) a National Crime Agency officer having the powers and privileges of a constable in England and Wales under the Crime and Courts Act 2013, or”.—(Karen Bradley.)
This amendment makes express provision for National Crime Agency officers to come within the definition of law enforcement officer that applies for the purposes of Chapter 4 of Part 4.
Clause 62, as amended, ordered to stand part of the Bill.
Clauses 63 to 76 ordered to stand part of the Bill.
Clause 77
Firearms Act 1968: meaning of “firearm” etc.
Lyn Brown (West Ham) (Lab)
I beg to move amendment 227, in clause 77, page 81, line 7, leave out subsection (5).
This amendment would remove the exception for airsoft guns from the definition of a lethal barrelled weapon.
It is a pleasure to serve under your chairmanship, Mr Howarth. I, too, hope that you had a really happy holiday—I am learning from the Minister how to do these things.
The amendment would remove the exemption for airsoft guns from the definition of a lethal barrelled weapon from the Bill. It has been tabled as a probing amendment to understand why the Government have allowed an exemption in this case.
Lyn Brown
Oh heavens!
The Bill exempts airsoft weapons from the 1 J limit. If we pass the Bill without making the amendment, airsoft weapons will be allowed to exceed that limit; instead, they will not be able legally to exceed 1.3 J, or 2.5 J for a single-shot weapon. Why has the exemption for airsoft weapons been put in place? If the Home Office is of the view that a 1 J threshold successfully identifies a lethal weapon in other instances, why are airsoft weapons any different?
Deputy Chief Constable Andy Marsh has cited evidence from the Forensic Science Service that the 1.3 J and 2.5 J thresholds would not be lethal for airsoft weapons, as was noted by the Law Commission, but that research is from 2001 and therefore more than 14 years old. There must surely be something more recent. If there is not, why is that? Why have we not commissioned something?
Mike Penning
Unless my information is wrong, that research was done in 2011.
Lyn Brown
Well, my research tells me it was in 2001. We will wait for some inspiration on that.
There is some dispute about whether airsoft guns can be converted into weapons that can shoot lethal ammunition. I am told that numerous YouTube videos exist in which enthusiasts claim that they can do exactly that. It was revealed by a 2013 freedom of information request that the American Bureau of Alcohol, Tobacco, Firearms and Explosives believes that some airsoft weapons can be converted. Given that, the Minister needs to explain the rationale behind the exemption of airsoft weapons from the standard 1 J limit. If 1 J is the definition of lethality and airsoft weapons can, as we understand, be converted to be lethal, it seems to me that they should comply with the 1 J limit and not be allowed a 1.3 J limit.
I accept that the Minister might well talk about the fun he has on his holidays playing these weird games.
The Chair
Order. The Committee will be fascinated to hear about the Minister’s holiday activities, provided that they are germane to the Bill.
Lyn Brown
Absolutely, Mr Howarth. My mind is boggling. I think I need to get back to the issue at hand.
The Minister may argue that the 1.3 J threshold is necessary to protect the airsoft industry, but the truth is that airsoft weapons could still be produced and carried without a firearms licence without this exemption; they would just have to be below the 1 J threshold of lethality. If airsoft guns are toys and not weapons, I do not see the problem with them being less powerful than lethal weapons. If airsoft enthusiasts still wish to have a powerful airsoft gun over the 1 J threshold, they could still do so without the exemption; they would just have to apply for the same licence and subject themselves to the same checks that we would expect for any other weapon that powerful. It does not seem to be too onerous a set of regulations to comply with.
Britain rightly prides itself on having among the most stringent gun control laws in the world. We see the public and their safety as the primary clients of gun control legislation. Elsewhere in the world, the so-called rights of gun owners are given preference, with tragic consequences. In this context, the Committee will be interested to know that Japan—where airsoft was invented and is profoundly popular—imposes a single 0.98 J limit on all guns, including airsoft weapons. Japanese manufacturers of airsoft weapons were happy to sign up to those regulations so, again, I do not see the need to exempt airsoft.
There must be a case for saying that a single power limit for all weapons, without exemptions or loopholes, would be legally preferable and more enforceable. That is what our amendment would achieve, and I know it is something for which the Gun Control Network, which was founded in the aftermath of the Dunblane tragedy, has campaigned. I look forward with interest to hearing what the Minister has to say.
Before I finish, I will talk about the use of airsoft weapons as realistic imitation firearms. These weapons are designed to look almost exactly like real firearms, and are only exempt from laws against the manufacture of realistic imitation firearms because of a set of defences provided in the Violent Crime Reduction Act 2006. In other countries, such as Canada, airsoft weapons are treated as realistic replica weapons and regulated as such.
On seeing these guns, I was immediately worried that they could easily be used to threaten and intimidate. There is no doubt that the owners and manufacturers of these weapons pride themselves on their guns looking exactly like the most deadly of weapons. I urge members of the Committee to go online and look for themselves. Websites such as Patrol Base sell guns that look exactly like military assault rifles.
I was not surprised to read that a cache of airsoft weapons was seized in December from an ISIS terror cell in Belgium. Two men were arrested and military fatigues, airsoft weapons and ISIS propaganda were found in their property. Brussels’s main new year’s eve fireworks display was cancelled as a result of the find.
Let’s face it: if a terrorist walked down Whitehall with one of these guns and threatened to shoot us, we would fear for our lives and comply with the instructions given by the bearer of the gun if we were unable to run for our lives. Even if these weapons are not lethal, they can certainly bring fear and terror. I ask the Minister whether any thought has been given to reviewing the exemption for airsoft guns from the laws against realistic imitation firearms in the light of the incident in Belgium. If not, I strongly urge him to think about it.
I feel so passionately about this matter that if the Minister is unable to help us today, I would be happy if he would consider it further, write to me and perhaps come back to it on Report.
Mike Penning
As the shadow Minister indicated, we have some of the toughest firearms laws in the world. That is how it should be, and we will continue to strengthen and tighten the laws, providing clarity for the police and the public. I have looked at several aspects related to this matter.
I have two girls and I used to see toy guns when I went to toy shops with them when they were very young. Even as an ex-military man, I would not know the damn difference, from a distance, if someone came down Whitehall with one. Nevertheless, we are not going to ban all children’s toy guns. It is an offence to use a toy gun, or any other kind of replica, in that way. There are powers on the statute book.
I should declare that I have never used an airsoft weapon and I have never been to one of the play sites, but nearly 50,000 people do have the kind of fun that I have not enjoyed. Given the days I spent with real weapons, I would not fancy taking up such an invitation, but plenty of people do.
We looked carefully at proportionality and whether or not the 1 J limit recommended in the Law Commission’s report would have an adverse effect on the public’s enjoyment. We looked carefully at whether the police or the National Ballistics Intelligence Service had reported any instances of airsoft guns causing serious injuries, and they had not. We had to look at whether the effect would be proportionate on people who were enjoying an activity against which there was no evidence whatever. The Law Commission itself discussed in its report whether changing the limit would be proportionate. We have looked into the matter and can find no evidence of injuries.
We already have restrictions. I accept that other countries have made different legal decisions. I lived in Canada for a short time. Interestingly, hunting rifles and other weapons are freely available there, yet the velocity of airsoft weapons is restricted. We think that the existing legislation is proportionate. If someone wants to adapt one of these guns, other legislation is immediately triggered. For example, if it becomes a weapon and they are unlicensed, the sanction is five years or a fine. If someone creates a weapon from something that is not designed to be one and it becomes a firearm, that is captured by a completely different piece of legislation. If someone comes wandering down the street with a toy gun, let alone one of the weapons we are discussing, it is an offence if they use it inappropriately or in a threatening manner.
We do not want to prevent 50,000-odd people from enjoying themselves, even if they are enjoying themselves in ways that are slightly different from how the shadow Minister and I enjoy ourselves.
Jake Berry (Rossendale and Darwen) (Con)
Was any research undertaken into what difference such a change would make? Airsoft weapons have been known to cause injuries, even when used in safe, recreational settings. Did the Department undertake any research into the likelihood of reduced injury if the power of the weapons was reduced from the proposed 1.3 J limit to 1 J or even 0.98 J, which is the limit in Japan?
Mike Penning
We looked at the evidence from the police and the National Ballistics Intelligence Service. Yes, there have been injuries, in which there might have been other factors, but the police have not reported any instances of serious injuries.
I understand the shadow Minister’s concern about something that neither of us are likely ever to enjoy, but 50,000-odd people do and I do not want to prevent them from doing so. I hope she will withdraw her amendment.
Lyn Brown
I hear what the Minister says, but I have not heard an explanation of why an airsoft weapon could not be 1 J or less than 1 J, as is the case in Japan. No evidence has been put forward today to suggest that that would stop the enjoyment of people who want to run through forests waving firearms. The other point that I do not understand is why it would spoil their enjoyment if airsoft weapons were a different colour—pink, red or green—so that they did not look as realistic as they do at the moment.
Mike Penning
I have finished. I am sorry, but I do not agree.
Amendment 227 negatived.
Clause 77 ordered to stand part of the Bill.
Clauses 78 and 79 ordered to stand part of the Bill.
Clause 80
Applications under the Firearms Acts: fees
Lyn Brown
I beg to move amendment 228, in clause 80, page 83, line 31, leave out
“the amount of any fee that may be charged”
and insert
“that the fee charged must be equal to the full cost to the tax payer of issuing a licence.”.
This amendment would ensure that the firearms licensing system achieves full cost recovery.
The Chair
With this it will be convenient to discuss the following:
Amendment 229, in clause 80, page 84, line 7, leave out
“the amount of any fee that may be charged”
and insert
“that the fee charged must be equal to the full cost to the tax payer of issuing a licence.”.
This amendment would ensure that the firearms licensing system achieves full cost recovery.
Amendment 230, in clause 80, page 84, line 27, leave out
“the amount of any fee that may be charged”
and insert
“that the fee charged must be equal to the full cost to the tax payer of issuing a licence.”.
This amendment would ensure that the firearms licensing system achieves full cost recovery.
Lyn Brown
These amendments would be a first step towards ending state subsidy of gun ownership. They would achieve that goal by ensuring that the full costs of licensing prohibited weapons, pistol clubs and museums are recovered.
Full cost recovery was a Labour manifesto pledge. It is a key objective of the Gun Control Network, and it is even stated as a policy goal in the explanatory notes accompanying the Bill. It would therefore appear that we are all united in wanting to achieve the same end. However, the Bill would bring the licensing fee regime of prohibited weapons, pistol clubs and museums in line with the fees regime that exists for standard section 1 firearms. That is a problem. I do not believe that the fees regime for section 1 firearms provides for full cost recovery, so I do not have the confidence that these proposals will achieve full cost recovery for the licences that they control.
The Bill deals with relatively narrow issues around licensing fees. At the moment, there is no system to recover costs from the licensing of prohibited weapons. Subsection (1) will allow authorities to set fees for very powerful, prohibited weapons, such as rocket launchers, which can only be obtained with the permission of the UK Defence Council. The fee will be variable and set by the Secretary of State by regulations, just as is presently the case for ordinary section 1 firearms.
Subsections (2) and (3) deal with the licensing of pistol clubs and museums respectively. At the moment, such fees are fixed under the Firearms (Amendment) Act 1988, and the Secretary of State does not have the power to change them by secondary legislation. The Bill will bring the licensing system for those institutions in line with the licensing system for individual firearm owners by granting the Secretary of State the power to change the fees by regulation and by allowing variable fees. The Bill does not actually propose any change in the fees for pistol clubs or museums, and as a result the amount of money that these proposals involve is relatively small.
The Government estimate that these changes will bring in £570,000 a year for the Home Office, £78,000 for the English and Welsh police, £42,000 for the Scottish Government and £6,000 for Police Scotland. As it is said, every little helps. That increased revenue is welcome, as is the capacity for the Secretary of State to change the fees when the costs of licensing increase; but however welcome these changes are, the unfortunate truth is that these proposals will only make a small dent in the gun ownership subsidy that still persists in this country.
In the previous Parliament, the Labour party campaigned on full cost recovery. Fees for section 1 firearms had remained frozen for too long, and as a result the taxpayer was subsidising gun ownership to the tune of £17 million a year. That is insane. The police estimated that the cost of licensing a firearm was £196, yet the fee was stuck at £50. The taxpayer was paying three quarters of the cost of a gun owner getting a licence.
To be fair to the coalition Government, they did respond to the pressure. A working group was set up by the Home Office, the police and the British Association for Shooting and Conservation to consider the matter. After negotiations, it proposed that an £88 fee would be mutually acceptable to the police and shooters. The £88 fee was considerably short of the £196 that the police had independently estimated to be the true cost of licensing guns, but it was still a welcome increase. The £88 fee was finally introduced just before the general election. However, the fee was frozen for 14 years before it was finally increased. The £88 fee was arrived at only after negotiations with BASC and was not imposed following independent estimates.
Our amendments to the Bill would mandate the Secretary of State to set the cost of a licence for prohibited weapons, pistol clubs and museums at the full cost to the taxpayer. A legal requirement that the fee match the full cost would take some of the politics out of the process. The fee decisions would be based on an evidential analysis, conducted by the Home Office, of the true cost to the taxpayer. If the process proved to be successful for prohibited weapons, pistol clubs and museums, the Minister could consider extending it to section 1 firearms. This legislation could be a first step to true full cost recovery.
I will be interested to hear the Minister’s views on the issue. I urge him to accept amendments 228, 229 and 230. The taxpayer should not have to subsidise gun ownership, as it currently does. Our amendments would be a first step to bringing that unfairness to an end once and for all. Labour pushed hard for full cost recovery in the previous Parliament, and we have seen some movement from the Government on the issue. I urge the Minister to work with us, both by accepting our amendments today and by looking at the issue of section 1 licences in the future, to achieve what seems to be a realistic and realisable common goal.
Mike Penning
We are as one on the fact that the taxpayer should not subsidise licensing. The Bill, which is about Home Office licences, will not have an effect on police fees. However, given that the shadow Minister referred to police licence fees, I will respond to that as well. I completely agree that this should have been done years and years ago, under several Administrations. I will therefore look at police licence fees, which the Bill does not do, but which the hon. Lady was referring to.
The legislation has been changed. As from April 2015, police licence fees increased by between 23% and 76%, depending on the certificate type. That is the first increase since 2001. Once the new police online system, eCommerce, is introduced, fees will recover the full costs of licensing. That is specific: it is in the legislation. I had problems myself with the coalition Government, along with several of my colleagues.
Let us look briefly at the Home Office licence fees. I completely agree that it is wrong that the taxpayer is subsidising other organisations. Currently, combined, the authorisation and licensing of prohibited weapons, shooting clubs and museums costs the taxpayer an estimated £700,000 a year. I do not feel that the amendment is necessary: I will explain why. Clause 80 will create a consistent set of charging powers across all Home Office firearms licences and authorities. The Government’s intention is that licence holders, and not the taxpayer, should pay the full cost. The Government will set fees at the appropriate level, based on clause 80, but with agreement from the Treasury. Fees will be set out in a public consultation later this year, which will give affected organisations the chance to raise any issues. Final fee amounts will be introduced via regulations subject to the negative procedure.
Lyn Brown
What is the need for consultation on this? If the Home Office is going to impose the full cost of the licence fee on the person who is applying for the licence, what are we consulting about? If the consultation comes back with some interested group saying, “We can’t afford this—we only really want 50% or 30%,” might the Government be minded to agree with that, rather than impose the full 100% of the cost?
Mike Penning
There are frustrations in being a Minister, as former Ministers know. Consultation is a requirement, because we are likely to be challenged in law. That is why we consult. We will say what we want to do and then consult. One area where there may be real concern is the cost to museums. That is right. Other organisations may want to put their four pennyworth in, as often happens in consultations. We would not want to have a massively adverse effect on museums, though, so we will need to look at that. When proposing changes to legislation or to use delegated powers, it is always best to consult.
Jake Berry
Other people affected by this will be gamekeepers. For example, several gamekeepers in my constituency require a firearm for their job; so I hope that the Government will consider extremely widely. I do not think that, as a matter of principle, we should be saying that the Government should never subsidise sports. I am not particularly interested in volleyball, but I am very happy that we had the London Olympics, with £9 billion of Government money spent on hosting them. I do not think that the principle that we should never subsidise sport should be set out in law, so I hope that the Government will consider this and consult widely.
Mike Penning
I fully understand what my hon. Friend is saying. There is now a confusion between police licence fees and Home Office licensing fees. Gamekeepers will be dealt with under police licensing for shotguns for the control of vermin and so on. This part of the legislation is different: it is to do with Home Office licensing, for armed guards or merchant shipping, for example. Whether a museum is holding weapons—they are still tangible weapons—is separate. I understand that there is confusion: we look at police fees and licensing and think of that as one thing, but they are two different things. Police licensing fees have been set for the first time since 2001, but that is a different issue altogether. I will write to my hon. Friend to confirm exactly what I just said. However, with that and what I propose about using delegated legislation powers later in the year in mind, I hope that the hon. Lady will withdraw her amendment.
Lyn Brown
I am grateful to the Minister for making my day—that is a great birthday present for tomorrow. I look forward to receiving his letter, which will provide clarification. I will bring this back on Report if everything is not as hunky-dory as we think. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 80 ordered to stand part of the Bill.
Clause 81
Guidance to police officers in respect of firearms
Amendment made: 215, in clause 81, page 85, line 20, leave out from “must” to end of line 22 and insert
“have regard to any guidance issued under section 55A that is relevant to the appeal.”.—(Mike Penning.)
This amendment requires a court or sheriff hearing an appeal against a decision by the police under the Firearms Act 1968 to have regard to any guidance issued to chief officers of police under the new section 55A of that Act inserted by clause 81.
Clause 81, as amended, ordered to stand part of the Bill.
Clauses 82 to 90 ordered to stand part of the Bill.
Clause 91
Power to impose monetary penalties
Lyn Brown
I beg to move amendment 231, in clause 91, page 94, line 37, leave out “50%” and insert “200%”.
This amendment would increase the maximum civil penalty for breaking financial sanctions from half the value of the funds or resources involved to double the value.
The Opposition support the measures in the Bill that will toughen up the enforcement of financial sanctions. We appreciate that financial sanctions are an important diplomatic and strategic power, but we are concerned that the penalties proposed are too light and may not deter an individual from taking a calculated risk.
I am sure we all welcome the news that in recent weeks ISIS has been in retreat in parts and has lost the ancient city of Palmyra. I have no doubt that the financial sanctions that the UK and other countries have placed on 258 individuals and 75 entities that support ISIS have played their part, but, as the executive director of the Iraq Energy Institute told the Foreign Affairs Sub-Committee last month, ISIS’s spending patterns suggest that it must still be receiving substantial donations and outside financial assistance. That is an important reminder that those who break financial sanctions can be a serious threat to national security and to British interests. Those people must be stopped and punished.
The Bill introduces sensible and welcome measures on enforcing financial sanctions, which we support. For example, we support the changes in clause 89, which will allow the Secretary of State to increase the penalty for breaking EU financial sanctions to seven years’ imprisonment. That matches the maximum penalty for breaking an asset freeze under the Terrorist Asset-Freezing etc. Act 2010. Given the severity of the crime, that is a far more fitting penalty than the two years currently provided for.
Clauses 97 and 98 address the gap in time between the UN passing a financial sanction resolution and our Government adopting the EU regulations needed to implement it. The Bill will allow the Treasury to enforce United Nations financial sanction resolutions immediately by introducing temporary sanctions as an interim measure. This sort of interim measure seems entirely reasonable, given the importance of financial sanctions to national security. It was, indeed, recommended by Lord Rodger in the Supreme Court when reviewing the case of Mohammed Jabar Ahmed.
Although I support the general thrust of the measures on financial sanctions, there are a few areas in the Bill where I seek assurances from the Minister. In particular, I am concerned that the civil penalties introduced by clause 91 might be perceived as a mere slap on the wrist by those contemplating illegal business activity: that the civil penalties might be light enough that breaking sanctions might be considered to be a risk worth taking. Clause 91(3) states that the maximum civil penalty for breaking financial sanctions is either £1 million or
“50% of the estimated value of the funds or resources”,
if that is more than £1 million. I wonder whether this is insufficient.
I know that £1 million sounds a lot—it is for me—but imagine an individual selling a property in the London property market with a value well in excess of £1 million to a foreign buyer who is subject to financial sanctions. Members of the Committee may have seen last year’s Channel 4 documentary that showed a buyer posing as a Russian official who told the vendors of London properties that his funds were embezzled. Those dealing with him seemed completely and utterly unperturbed. We were not told by the journalists that they were subsequently contacted by any of the vendors to withdraw their interest in the sale, in reconsideration of the fact that the funds were embezzled.
Of the Mossack Fonseca companies tied up in the Panama papers leak, 2,800 appear on the UK Land Registry list of overseas property owners and have assets worth more than £7 billion. It is little wonder that Donald Toon of the National Crime Agency has said that
“the London property market has been skewed by laundered money.”
There is little doubt that London property is seen as a safe haven for both legitimate and illegitimate investors. So my contention is that the threat of being fined 50% of the value of the property might not be sufficient deterrent to stop an individual seller undertaking a sale. As I understand the Bill, the vendor would still be able to keep 50% of the proceeds of a sale even if they are caught. That, if they received it in cash, might be more valuable to them than alternative revenue streams they could have received from the property. I would be grateful if the Minister let me know whether my reading of the Bill is correct. If it is, I would be grateful if she explained why she thinks that that is reasonable. If we want to discourage people who are contemplating engaging with an illegal business, the civil penalties need to be stronger.
I accept that the Minister—getting all my arguments in at once—may stand up and say that these are only civil sanctions and that anyone engaging in illegal business activity will still be subject to criminal sanctions, which include custodial punishments. That may well be the case, but the civil standard of proof of “the balance of probabilities” is a lot easier to meet than the criminal standard of “beyond reasonable doubt”. That is particularly true with regards to financial crime, where the complexities of the financial system have seen calls for fraud cases to sit outside the jury system. That is not a call I agree with, as an individual, but it has been considered and debated in the recent past.
There is a danger that the new Office of Financial Sanctions Implementation, run by the Treasury, will rely on civil punishments rather than on the more difficult to achieve criminal punishments. If that is the case, the low level of civil penalties might actually only make the problem worse. Financial sanctions are an important diplomatic and strategic power. Individuals or companies breaking financial sanctions are a serious threat to the national interest and must be stopped.
Policing and Crime Bill (Seventh sitting)
Tuesday 12th April 2016
(10 years ago)
Public Bill CommitteesRead Full debate Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 12 April 2016 - (12 Apr 2016)
The Committee divided: - Ayes: 9 / Noes: 6 - Question accordingly agreed to.
Lyn Brown (West Ham) (Lab)
In conclusion [Laughter.] Financial sanctions are an important diplomatic and strategic power. Individuals or companies breaking financial sanctions are a serious threat to the national interest and must be stopped. We cannot allow the civil penalties introduced under the Bill to be perceived as a mere slap on the wrist, and a reasonable risk to take for those who would do business with people they should not. By accepting our amendments, the Minister could prevent that from happening.
The Parliamentary Under-Secretary of State for the Home Department (Karen Bradley)
May I start by wishing the hon. Member for West Ham happy birthday for tomorrow? I hope we will not be sitting down to do this the day after her birthday, so I hope she enjoys her day without having to worry about getting up for Committee the next day, although she will obviously continue to represent her constituents in the excellent way that she does.
The enforcement of financial sanctions is vital to our foreign policy and national security, but it is also important to note that the size of a breach and the culpability of those involved in a breach will vary from case to case. It is therefore important to ensure that the enforcement of financial sanctions is both appropriately targeted and proportionate.
I will respond to some of the points made by the hon. Lady. I welcome her support for these measures. I reassure her that the new Office of Financial Sanctions Implementation, or OFSI, and the increased resource behind sanctions enforcement will ensure that financial sanctions make the fullest possible contribution to the UK’s foreign policy and national security goals, as well as helping to maintain the integrity of and confidence in the UK financial services sector.
I would also like to reassure her that OFSI will not seek to use monetary penalties as an alternative to a criminal prosecution. Where a serious breach of the kind described by the hon. Lady is identified by OFSI, the full range of potential enforcement mechanisms will be considered. Although the monetary penalties set out in the Bill will provide a valuable contribution, prosecution and asset seizure under the Proceeds of Crime Act 2002 will also be available.
I note that the Crown court will, on conviction, be able to impose an unlimited fine. We intend to consult shortly on where and when to use monetary penalties. The proposed maximum limits of £1 million or 50% of the value of the breach are based on evidence about the value of breaches reported to the Treasury over the past two years. We believe that those levels are both proportionate and adequate to remove profits made from breaches of financial sanctions and provide a sufficient deterrent.
The hon. Lady will also be aware that the clause already obliges the Treasury to keep the maximum limits under review, and it includes a power to vary that figure by regulations. Clearly, if it turns out that the provisions are not appropriate, based on the evidence we have today, we can always vary that figure. Finally, I would like to reassure the hon. Lady that if evidence shows that the limits should be set at a higher level we can, and we will, change them.
In the context of the civil sanction regime, it is right that the legislation should provide clear and proportionate limits on the amount of the financial penalty. We believe that, based on the evidence, £1 million or 50% of the estimated value of the funds is an appropriate limit and, accordingly, I urge the hon. Lady to withdraw her amendment.
Lyn Brown
I am grateful to the Minister for that clear and concise answer to the points that I made. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 91 ordered to stand part of the Bill.
Clauses 92 to 102 ordered to stand part of the Bill.
Schedule 12 agreed to.
Clauses 103 to 107 ordered to stand part of the Bill.
New Clause 1
Initiation of investigations by IPCC
‘(1) Schedule 3 to the Police Reform Act 2002 (handling of complaints and conduct matters etc) is amended as follows.
(2) In paragraph 4 (reference of complaints to the Commission), in sub-paragraph (7), in the words before paragraph (a), after “occasion” insert “, or that has been treated as having been so referred by virtue of paragraph 4A”.
(3) After paragraph 4 insert—
“Power of Commission to treat complaint as having been referred
4A (1) The Commission may treat a complaint that comes to its attention otherwise than by having been referred to it under paragraph 4 as having been so referred.
(2) Where the Commission treats a complaint as having been referred to it—
(a) paragraphs 2 and 4 do not apply, or cease to apply, in relation to the complaint except to the extent provided for by paragraph 4(7), and
(b) paragraphs 5, 6, 6A, 15 and 25 apply in relation to the complaint as if it had been referred to the Commission by the appropriate authority under paragraph 4.
(3) The Commission must notify the following that it is treating a complaint as having been referred to it—
(a) the appropriate authority;
(b) the complainant;
(c) except in a case where it appears to the Commission that to do so might prejudice an investigation of the complaint (whether an existing investigation or a possible future one), the person complained against (if any).
(4) Where an appropriate authority receives a notification under sub-paragraph (3) in respect of a complaint and the complaint has not yet been recorded, the appropriate authority must record the complaint.”
(4) In paragraph 11 (recording etc of conduct matters otherwise than where conduct matters arise in civil proceedings), omit sub-paragraph (5).
(5) In paragraph 13 (reference of conduct matters to the Commission), in sub-paragraph (7), in the words before paragraph (a), after “occasion” insert “, or that has been treated as having been so referred by virtue of paragraph 13A”.
(6) After paragraph 13 insert—
“Power of Commission to treat conduct matter as having been referred
13A (1) The Commission may treat a conduct matter that comes to its attention otherwise than by having been referred to it under paragraph 13 as having been so referred.
(2) Where the Commission treats a conduct matter as having been referred to it—
(a) paragraphs 10, 11 and 13 do not apply, or cease to apply, in relation to the matter except to the extent provided for by paragraph 13(7), and
(b) paragraphs 14 and 15 apply in relation to the matter as if it had been referred to the Commission by the appropriate authority under paragraph 13.
(3) The Commission must notify the following that it is treating a conduct matter as having been referred to it—
(a) the appropriate authority;
(b) except in a case where it appears to the Commission that to do so might prejudice an investigation of the matter (whether an existing investigation or a possible future one), the person to whose conduct the matter relates.
(4) Where an appropriate authority receives a notification under sub-paragraph (3) in respect of a conduct matter and the matter has not yet been recorded, the appropriate authority must record the matter.”
(7) In paragraph 14A (duty to record DSI matters), omit sub-paragraph (2).
(8) In paragraph 14C (reference of DSI matters to the Commission), in sub-paragraph (3), after “occasion” insert “, or that has been treated as having been so referred by virtue of paragraph 14CA,”.
(9) After paragraph 14C insert—
“Power of Commission to treat DSI matter as having been referred
14CA (1) The Commission may treat a DSI matter that comes to its attention otherwise than by having been referred to it under paragraph 14C as having been so referred.
(2) Where the Commission treats a DSI matter as having been referred to it—
(a) paragraphs 14A and 14C do not apply, or cease to apply, in relation to the matter except to the extent provided for by paragraph 14C(3), and
(b) paragraphs 14D and 15 apply in relation to the matter as if it had been referred to the Commission by the appropriate authority under paragraph 14C.
(3) The Commission must notify the appropriate authority that it is treating a DSI matter as having been referred to it.
(4) Where an appropriate authority receives a notification under sub-paragraph (3) in respect of a DSI matter and the matter has not yet been recorded, the appropriate authority must record the matter.”
(10) In section 29 of the Police Reform Act 2002 (interpretation of Part 2 of that Act), in subsection (1), in paragraph (a) of the definition of “recordable conduct matter”, for “or 11” substitute “, 11 or 13A”. —(Karen Bradley.)
This new clause is intended to take the place of clause 14. The amendments of Schedule 3 to the Police Reform Act 2002 in the new clause are aimed at giving the IPCC the ability to consider whether or not it is necessary for a complaint, conduct matter or DSI matter to be investigated and, if so, to determine what form the investigation should take, as soon as the IPCC becomes aware of the complaint or matter.
Brought up, read the First and Second time, and added to the Bill.
New Clause 2
Sensitive information received by IPCC: restriction on disclosure
‘(1) Part 2 of the Police Reform Act 2002 (complaints and misconduct) is amended as follows.
(2) After section 21 insert—
“21A Restriction on disclosure of sensitive information
(1) Where the Commission receives information within subsection (3), the Commission must not disclose (whether under section 11, 20 or 21 or otherwise) the information, or the fact that it has been received, unless the relevant authority consents to the disclosure.
(2) Where a person appointed under paragraph 18 of Schedule 3 to investigate a complaint or matter (a “paragraph 18 investigator”) receives information within subsection (3), the paragraph 18 investigator must not disclose the information, or the fact that it has been received, to any person other than the Commission unless the relevant authority consents to the disclosure.
(3) The information is—
(a) intelligence service information;
(b) intercept information;
(c) information obtained from a government department which, at the time it is provided to the Commission or the paragraph 18 investigator, is identified by the department as information the disclosure of which may, in the opinion of the relevant authority—
(i) cause damage to national security, international relations or the economic interests of the United Kingdom or any part of the United Kingdom, or
(ii) jeopardise the safety of any person.
(4) Where the Commission or a paragraph 18 investigator discloses to another person information within subsection (3), or the fact that the Commission or the paragraph 18 investigator has received it, the other person must not disclose that information or that fact unless the relevant authority consents to the disclosure.
(5) In this section—
“government department” means a department of Her Majesty’s Government but does not include—
(a) the Security Service,
(b) the Secret Intelligence Service, or
(c) the Government Communications Headquarters (“GCHQ”);
“intelligence service information” means information that was obtained (directly or indirectly) from or that relates to—
(a) the Security Service,
(b) the Secret Intelligence Service,
(c) GCHQ, or
(d) any part of Her Majesty’s forces, or of the Ministry of Defence, which engages in intelligence activities;
“intercept information” means information relating to any of the matters mentioned in section 19(3) of the Regulation of Investigatory Powers Act 2000;
“Minister of the Crown” includes the Treasury;
“paragraph 18 investigator” has the meaning given by subsection (2);
“relevant authority” means—
(a) in the case of intelligence service information obtained (directly or indirectly) from or relating to the Security Service, the Director-General of the Security Service;
(b) in the case of intelligence service information obtained (directly or indirectly) from or relating to the Secret Intelligence Service, the Chief of the Secret Intelligence Service;
(c) in the case of intelligence service information obtained (directly or indirectly) from or relating to GCHQ, the Director of GCHQ;
(d) in the case of intelligence service information obtained (directly or indirectly) from or relating to Her Majesty’s forces or the Ministry of Defence, the Secretary of State;
(e) in the case of intercept information, the person to whom the relevant interception warrant is or was addressed;
(f) in the case of information within subsection (3)(c)—
“relevant interception warrant” means the interception warrant issued under section 5 of the Regulation of Investigatory Powers Act 2000 that relates to the intercept information.
21B Provision of sensitive information to the Commission and certain investigators
‘(1) A person who provides information that is intelligence service information or intercept information to the Commission or a paragraph 18 investigator (whether under a provision of this Part or otherwise) must—
(a) make the Commission or the paragraph 18 investigator aware that the information is intelligence service information or (as the case may be) intercept information, and
(b) provide the Commission or the paragraph 18 investigator with such additional information as will enable the Commission or the paragraph 18 investigator to identify the relevant authority in relation to the information.
(2) In this section, “intelligence service information”, “intercept information”, “paragraph 18 investigator” and “relevant authority” have the same meaning as in section 21A.”
(3) In Schedule 3 (handling of complaints and conduct matters etc), in Part 3 (investigations and subsequent proceedings)—
(a) omit paragraph 19ZD (sensitive information: restriction on further disclosure of information received under an information notice);
(b) in paragraph 22 (final reports on investigations: complaints, conduct matters and certain DSI matters)—
(i) after sub-paragraph (6) insert—
“(6A) Where a person would contravene section 21A by submitting, or (as the case may be) sending a copy of, a report in its entirety to the appropriate authority under sub-paragraph (2) or (3)(b), the person must instead submit, or send a copy of, the report after having removed or obscured the information which by virtue of section 21A the person must not disclose.”;
(ii) in sub-paragraph (8), at the end insert “except so far as the person is prevented from doing so by section 21A”;
(c) in paragraph 23 (action by the Commission in response to an investigation report under paragraph 22), after sub-paragraph (2) insert—
“(2ZA) Where the Commission would contravene section 21A by sending a copy of a report in its entirety to the appropriate authority under sub-paragraph (2)(a) or to the Director of Public Prosecutions under sub-paragraph (2)(c), the Commission must instead send a copy of the report after having removed or obscured the information which by virtue of section 21A the Commission must not disclose.”;
(d) in paragraph 24A (final reports on investigations: other DSI matters), after sub-paragraph (3) insert—
“(3A) Where a person would contravene section 21A by sending a copy of a report in its entirety to the appropriate authority under sub-paragraph (2)(b), the person must instead send a copy of the report after having removed or obscured the information which by virtue of section 21A the person must not disclose.”” —(Karen Bradley.)
Paragraph 19ZD of Schedule 3 to the Police Reform Act 2002 currently imposes restrictions on the further disclosure by the IPCC of certain sensitive information received by it under an information notice. This new clause replaces paragraph 19ZD with new section 21A of the 2002 Act, which applies irrespective of how the IPCC has obtained the information. New section 21A also applies to investigators appointed under paragraph 18 of Schedule 3 to the 2002 Act (investigations by an appropriate authority under the IPCC’s direction). New section 21A is supplemented by new section 21B, which is intended to assist those needing to comply with section 21A.
Brought up, read the First and Second time, and added to the Bill.
New Clause 3
Release without bail: fingerprinting and samples
(1) The Police and Criminal Evidence Act 1984 is amended as follows.
(2) In section 61(5A) (fingerprinting of person arrested for a recordable offence) —
(a) in paragraph (a) omit “in the case of a person who is on bail,”, and
(b) in paragraph (b) omit “in any case,”.
(3) In section 63(3ZA) (taking of non-intimate sample from person arrested for a recordable offence)—
(a) in paragraph (a) omit “in the case of a person who is on bail,”, and
(b) in paragraph (b) omit “in any case,”.—(Karen Bradley.)
Sections 61(5A) and 63(3ZA) of PACE allow fingerprints and samples to be taken from persons released on bail. Because of changes in the Bill, persons will be released without bail (rather than on bail) unless pre-conditions are met. The amendments change those sections so they cover persons released without bail too.
Brought up, read the First and Second time, and added to the Bill.
New Clause 4
Release under section 24A of the Criminal Justice Act 2003
(1) Section 24A of the Criminal Justice Act 2003 (arrest for failure to comply with conditions attached to conditional caution) is amended as follows.
(2) In subsection (2) for paragraphs (b) and (c) substitute—
“(b) released without charge and without bail (with or without any variation in the conditions attached to the caution) unless paragraph (c)(i) and (ii) applies, or
(c) released without charge and on bail if—
(i) the release is to enable a decision to be made as to whether the person should be charged with the offence, and
(ii) the pre-conditions for bail are satisfied.”
(3) In subsections (3)(a) and (4) for “subsection (2)(b)” substitute “subsection (2)(c)”.
(4) After subsection (8) insert—
(8A) In subsection (2) the reference to the pre-conditions for bail is to be read in accordance with section 50A of the 1984 Act.”—(Karen Bradley.)
This new clause changes the provisions in the Criminal Justice Act 2003 relating to persons who are arrested because they are believed to have failed to comply with conditions attached to a conditional caution. To reflect the changes made in the Bill, those persons will be released without bail (rather than on bail) unless pre-conditions are met.
Brought up, read the First and Second time, and added to the Bill.
New Clause 5
Duty to notify person released under section 34, 37 or 37CA of PACE that not to be prosecuted
(1) The Police and Criminal Evidence Act 1984 is amended as follows.
(2) In section 34 (limitations on police detention) after subsection (5A) (inserted by section 42 of this Act) insert—
(5B) Subsection (5C) applies where—
(a) a person is released under subsection (5), and
(b) the custody officer determines that—
(i) there is not sufficient evidence to charge the person with an offence, or
(ii) there is sufficient evidence to charge the person with an offence but the person should not be charged with an offence or given a caution in respect of an offence.
(5C) The custody officer must give the person notice in writing that the person is not to be prosecuted.
(5D) Subsection (5C) does not prevent the prosecution of the person for an offence if new evidence comes to light after the notice was given.
(5E) In this Part “caution” includes—
(a) a conditional caution within the meaning of Part 3 of the Criminal Justice Act 2003;
(b) a youth conditional caution within the meaning of Chapter 1 of Part 4 of the Crime and Disorder Act 1998;
(c) a youth caution under section 66ZA of that Act.”
(3) Section 37 (duties of custody officer before charge) is amended as follows.
(4) After subsection (6) insert——
(6A) Subsection (6B) applies where—
(a) a person is released under subsection (2), and
(b) the custody officer determines that—
(i) there is not sufficient evidence to charge the person with an offence, or
(ii) there is sufficient evidence to charge the person with an offence but the person should not be charged with an offence or given a caution in respect of an offence.
(6B) The custody officer must give the person notice in writing that the person is not to be prosecuted.
(6C) Subsection (6B) does not prevent the prosecution of the person for an offence if new evidence comes to light after the notice was given.”
(5) After subsection (8) insert—
(8ZA) Where—
(a) a person is released under subsection (7)(b) or (c), and
(b) the custody officer makes a determination as mentioned in subsection (6A)(b),
subsections (6B) and (6C) apply.”
(6) Section 37B (consultation with Director of Public Prosecutions) is amended as follows.
(7) After subsection (5) insert—
(5A) Subsection (5) does not prevent the prosecution of the person for an offence if new evidence comes to light after the notice was given.”
(8) Omit subsection (9).
(9) In section 37CA (release following arrest for breach of bail) after subsection (4) insert——
(5) Subsection (6) applies where—
(a) a person is released under subsection (2), and
(b) a custody officer determines that—
(i) there is not sufficient evidence to charge the person with an offence, or
(ii) there is sufficient evidence to charge the person with an offence but the person should not be charged with an offence or given a caution in respect of an offence.
(6) The custody officer must give the person notice in writing that the person is not to be prosecuted.
(7) Subsection (6) does not prevent the prosecution of the person for an offence if new evidence comes to light after the notice was given.”
(10) In section 24B(2) of the Criminal Justice Act 2003 (application of provisions of Police and Criminal Evidence Act 1984)—
(a) in paragraph (d) for “(5)” substitute “(5E)”, and
(b) in paragraph (f) for “(6)” substitute “(6C)”.—(Karen Bradley.)
This new clause requires a custody officer to notify a person released under section 34(5), 37(2) or (7)(b) or (c) or 37CA(2) of PACE if it is decided not to prosecute. So the person is put in the same position as a person released under section 37(7)(a) (who is notified under section 37B(5)).
Brought up, read the First and Second time, and added to the Bill.
New Clause 6
Duty to notify person released under any of sections 41 to 44 of PACE that not to be prosecuted
(1) The Police and Criminal Evidence Act 1984 is amended as follows.
(2) In section 41 (limits on period of detention without charge) after subsection (9) insert—
(10) Subsection (11) applies where—
(a) a person is released under subsection (7), and
(b) a custody officer determines that—
(i) there is not sufficient evidence to charge the person with an offence, or
(ii) there is sufficient evidence to charge the person with an offence but the person should not be charged with an offence or given a caution in respect of an offence.
(11) The custody officer must give the person notice in writing that the person is not to be prosecuted.
(12) Subsection (11) does not prevent the prosecution of the person for an offence if new evidence comes to light after the notice was given.”
(3) In section 42 (authorisation of continued detention) after subsection (11) insert—
(12) Subsection (13) applies where—
(a) a person is released under subsection (10), and
(b) a custody officer determines that—
(i) there is not sufficient evidence to charge the person with an offence, or
(ii) there is sufficient evidence to charge the person with an offence but the person should not be charged with an offence or given a caution in respect of an offence.
(13) The custody officer must give the person notice in writing that the person is not to be prosecuted.
(14) Subsection (13) does not prevent the prosecution of the person for an offence if new evidence comes to light after the notice was given.”
(4) In section 43 (warrants of further detention) after subsection (19) insert——
(20) Subsection (21) applies where—
(a) a person is released under subsection (15) or (18), and
(b) a custody officer determines that—
(i) there is not sufficient evidence to charge the person with an offence, or
(ii) there is sufficient evidence to charge the person with an offence but the person should not be charged with an offence or given a caution in respect of an offence.
(21) The custody officer must give the person notice in writing that the person is not to be prosecuted.
(22) Subsection (21) does not prevent the prosecution of the person for an offence if new evidence comes to light after the notice was given.”
(5) In section 44 (extension of warrants of further detention) after subsection (8) insert——
(9) Subsection (10) applies where—
(a) a person is released under subsection (7), and
(b) a custody officer determines that—
(i) there is not sufficient evidence to charge the person with an offence, or
(ii) there is sufficient evidence to charge the person with an offence but the person should not be charged with an offence or given a caution in respect of an offence.
(10) The custody officer must give the person notice in writing that the person is not to be prosecuted.
(11) Subsection (10) does not prevent the prosecution of the person for an offence if new evidence comes to light after the notice was given.” —(Karen Bradley.)
This new clause requires a custody officer to notify a person released under section 41(7), 42(10), 43(15) or (18) or 44(7) of PACE if it is decided not to prosecute. So the person is put in the same position as a person released under section 37(7)(a) (who is notified under section 37B(5)).
Brought up, read the First and Second time, and added to the Bill.
New Clause 22
Combined authority mayors: exercise of fire and rescue functions
‘(1) The Local Democracy, Economic Development and Construction Act 2009 is amended in accordance with subsections (2) to (4).
(2) After section 107E insert—
“107EA Exercise of fire and rescue functions
(1) This section applies to a mayor for the area of a combined authority who—
(a) by virtue of section 107D(1), may exercise functions which are conferred on a fire and rescue authority in that name (“fire and rescue functions”), and
(b) by virtue of section 107F(1), may exercise functions of a police and crime commissioner.
(2) The Secretary of State may by order make provision—
(a) authorising the mayor to arrange for the chief constable of the police force for the police area which corresponds to the area of the combined authority to exercise fire and rescue functions exercisable by the mayor;
(b) authorising that chief constable to arrange for a person within subsection (4) to exercise functions exercisable by the chief constable under arrangements made by virtue of paragraph (a).
(3) An order under subsection (2) may provide that arrangements made under the order—
(a) may authorise the exercise of any fire and rescue functions exercisable by the mayor;
(b) may authorise the exercise of any fire and rescue functions exercisable by the mayor other than those specified or described in the order;
(c) may authorise the exercise of fire and rescue functions exercisable by the mayor which are specified or described in the order.
(4) The persons mentioned in subsection (2)(b) are—
(a) members of the chief constable’s police force;
(b) the civilian staff of that police force, as defined by section 102(4) of the Police Reform and Social Responsibility Act 2011;
(c) members of staff transferred to the chief constable under a scheme made by virtue of section 107EC(1);
(d) members of staff appointed by the chief constable under section 107EC(2).
(5) Provision in an order under section 107D(1) for a function to be exercisable only by the mayor for the area of a combined authority is subject to provision made by virtue of subsection (2).
(6) This section is subject to—
(a) section 107EB (section 107EA orders: procedure), and
(b) section 37 of the Fire and Rescue Services Act 2004 (prohibition on employment of police in fire-fighting).
107EB Section 107EA orders: procedure
‘(1) An order under section 107EA(2) may be made in relation to the mayor for the area of a combined authority only if the mayor has requested the Secretary of State to make the order.
(2) A request under subsection (1) must be accompanied by a report which contains—
(a) an assessment of why—
(i) it is in the interests of economy, efficiency and effectiveness for the order to be made, or
(ii) it is in the interests of public safety for the order to be made,
(b) a description of any public consultation which the mayor has carried out on the proposal for the order to be made,
(c) a summary of the responses to any such consultation, and
(d) a summary of the representations (if any) which the mayor has received about that proposal from the constituent members of the combined authority.
(3) Subsections (4) and (5) apply if—
(a) the mayor for the area of a combined authority has made a request under subsection (1) for the Secretary of State to make an order under section 107EA(2), and
(b) at least two thirds of the constituent members of the combined authority have indicated that they disagree with the proposal for the order to be made.
(4) The mayor must, in providing the report under subsection (2), provide the Secretary of State with—
(a) copies of the representations (if any) made by the constituent members of the combined authority about that proposal, and
(b) the mayor’s response to those representations and to the responses to any public consultation which the mayor has carried out on that proposal.
(5) The Secretary of State must—
(a) obtain an independent assessment of that proposal, and
(b) in deciding whether to make the order, have regard to that assessment and to the material provided under subsection (4) (as well as the material provided under subsection (2)).
(6) An order under section 107EA(2) may be made only if it appears to the Secretary of State that—
(a) it is in the interests of economy, efficiency and effectiveness for the order to be made, or
(b) it is in the interest of public safety for the order to be made.
(7) The Secretary of State may, in making an order under section 107EA(2) in relation to the mayor for the area of a combined authority, give effect to the mayor’s proposal for the order with such modifications as the Secretary of State thinks appropriate.
(8) Before making an order which gives effect to such a proposal with modifications, the Secretary of State must consult the mayor and the combined authority on the modifications.
(9) In this section—
“constituent council”, in relation to a combined authority, means—
(a) a county council the whole or any part of whose area is within the area of the combined authority, or
(b) a district council whose area is within the area of the combined authority;
“constituent member”, in relation to a combined authority, means a member of the authority appointed by a constituent council (but does not include the mayor for the area of the combined authority).
107EC Section 107EA orders: further provision
‘(1) An order under section 107EA(2) may make provision for the making of a scheme to transfer property, rights and liabilities (including criminal liabilities) from a fire and rescue authority or the combined authority to the chief constable (including provision corresponding to any provision made by section 17(4) to (6) of the Localism Act 2011).
(2) A chief constable to whom an order under section 107EA(2) applies may appoint staff for the purpose of the exercise of functions exercisable by the chief constable by virtue of the order.
(3) A chief constable to whom an order under section 107EA(2) applies may—
(a) pay remuneration, allowances and gratuities to members of the chief constable’s fire and rescue staff;
(b) pay pensions to, or in respect of, persons who are or have been such members of staff;
(c) pay amounts for or towards the provision of pensions to, or in respect of, persons who are or have been such members of staff.
(4) In subsection (3) “allowances”, in relation to a member of staff, means allowances in respect of expenses incurred by the member of staff in the course of employment as such a member of staff.
(5) Subject to subsections (6) to (8), a person who is employed pursuant to a transfer by virtue of subsection (1) or an appointment under subsection (2) may not at the same time be employed pursuant to an appointment by a chief constable of the police force for a police area under Schedule 2 to the Police Reform and Social Responsibility Act 2011.
(6) Where an order under section 107EA(2) is in force in relation to the chief constable of the police force for a police area, the person who is for the time being the police force’s chief finance officer is to be responsible for the proper administration of financial affairs relating to the exercise of functions exercisable by the chief constable by virtue of the order.
(7) Subsection (5) does not prevent a person who is employed as a finance officer for fire functions from being at the same time employed as a finance officer for police functions.
(8) In subsection (7)—
“finance officer for fire functions” means a member of a chief constable’s fire and rescue staff who—
(a) is not a chief finance officer of the kind mentioned in subsection (6), and
(b) is employed to carry out duties relating to the proper administration of financial affairs relating to the exercise of functions exercisable by the chief constable by virtue of an order under section 107EA(2);
“finance officer for police functions” means a member of a chief constable’s civilian staff within the meaning of the Police Reform and Social Responsibility Act 2011 who—
(a) is not a chief finance officer of the kind mentioned in subsection (6), and
(b) is employed to carry out duties relating to the proper administration of a police force’s financial affairs.
(9) Where an order under section 107EA(2) is in force, the combined authority to which the order applies must pay—
(a) any damages or costs awarded against the chief constable to whom the order applies in any proceedings brought against the chief constable in respect of the acts or omissions of a member of the chief constable’s fire and rescue staff;
(b) any costs incurred by the chief constable in any such proceedings so far as not recovered by the chief constable in the proceedings;
(c) any sum required in connection with the settlement of any claim made against the chief constable in respect of the acts or omissions of a member of the chief constable’s fire and rescue staff, if the settlement is approved by the authority.
(10) Where an order under section 107EA(2) is in force, the combined authority to which the order applies may, in such cases and to such extent as appears to the authority to be appropriate, pay—
(a) any damages or costs awarded against a member of the fire and rescue staff of the chief constable to whom the order applies in proceedings for any unlawful conduct of that member of staff;
(b) costs incurred and not recovered by such a member of staff in such proceedings;
(c) sums required in connection with the settlement of a claim that has or might have given rise to such proceedings.
(11) In this section “fire and rescue staff”, in relation to a chief constable to whom an order under section 107EA(2) applies, means—
(a) staff transferred to the chief constable under a scheme made by virtue of subsection (1);
(b) staff appointed by the chief constable under subsection (2).
107ED Section 107EA orders: exercise of fire and rescue functions
‘(1) This section applies if—
(a) an order under section 107EA(2) makes provision in relation to the area of a combined authority, and
(b) by virtue of the order, fire and rescue functions exercisable by the mayor for the area of the combined authority are exercisable by the chief constable of the police force for the police area which corresponds to that area.
(2) The chief constable must secure that good value for money is obtained in exercising—
(a) functions which are exercisable by the chief constable by virtue of the order, and
(b) functions relating to fire and rescue services which are conferred on the chief constable by or by virtue of any enactment.
(3) The chief constable must secure that other persons exercising functions by virtue of the order obtain good value for money in exercising those functions.
(4) The mayor must—
(a) secure the exercise of the duties which are exercisable by the chief constable or another person by virtue of the order,
(b) secure the exercise of the duties relating to fire and rescue services which are imposed on the chief constable by or by virtue of any enactment,
(c) secure that functions which are exercisable by the chief constable or another person by virtue of the order are exercised efficiently and effectively, and
(d) secure that functions relating to fire and rescue services which are conferred or imposed on the chief constable by or by virtue of any enactment are exercised efficiently and effectively.
(5) The mayor must hold the chief constable to account for the exercise of such functions.
107EE Section 107EA orders: complaints and conduct matters etc
‘(1) If an order is made under 107EA(2) that enables arrangements to be made for the exercise of functions by members of a police force or the civilian staff of a police force, the Secretary of State may by order amend Part 2 of the Police Reform Act 2002 (persons serving with the police: complaints and conduct matters etc) in consequence of that provision.
(2) If an order is made under section 107EA(2) that enables arrangements to be made for the exercise of functions by members of staff transferred to a chief constable under a scheme made by virtue of section 107EC(1) or appointed by a chief constable under section 107EC(2), the Secretary of State may by order make provision of the type described in subsection (3) in relation to those members of staff.
(3) The provision referred to in subsection (2) is—
(a) provision corresponding or similar to any provision made by or under Part 2 of the Police Reform Act 2002;
(b) provision applying (with or without modifications) any provision made by or under Part 2 of that Act.
(4) The Secretary of State may by order, in consequence of any provision made under subsection (2), amend Part 2 of the Police Reform Act 2002.
(5) Before making an order under this section the Secretary of State must consult—
(a) the Police Advisory Board for England and Wales,
(b) the Independent Police Complaints Commission,
(c) such persons as appear to the Secretary of State to represent the views of police and crime commissioners,
(d) such persons as appear to the Secretary of State to represent the views of fire and rescue authorities, and
(e) such other persons as the Secretary of State considers appropriate.
107EF Section 107EA orders: application of local policing provisions
‘(1) The Secretary of State may by order—
(a) apply (with or without modifications) any provision of a local policing enactment in relation to a person within subsection (2);
(b) make, in relation to such a person, provision corresponding or similar to any provision of a local policing enactment.
(2) Those persons are—
(a) a mayor for the area of a combined authority to which an order under section 107EA(2) applies,
(b) a chief constable to which such an order applies, and
(c) a panel established by virtue of an order under paragraph 4 of Schedule 5C for such an area.
(3) The power conferred by subsection (1)(a) or (b) includes power to apply (with or without modifications) any provision made by or under a local policing enactment or make provision corresponding or similar to any such provision.
(4) The Secretary of State may by order amend, revoke or repeal a provision of or made under an enactment in consequence of provision made by virtue of subsection (1).
(5) In this section “local policing enactment” means an Act relating to a police and crime commissioner.
(3) In section 107D(6)(b) (general functions exercisable by the mayor for the area of a combined authority) after “section 107E” insert “or 107EA”.
(4) In section 120 (interpretation) after the definition of “EPB” insert—
““fire and rescue authority” means a fire and rescue authority under the Fire and Rescue Services Act 2004;”.
(5) In section 26 of the Fire Services Act 1947 (firefighters’ pension scheme) (as continued in force by order under section 36 of the Fire and Rescue Services Act 2004) in subsection (5A) (as inserted by paragraph 12 of Schedule 1)—
(a) omit the “or” at the end of paragraph (a), and
(b) after paragraph (b) insert—
“(c) a transfer to the chief constable under a scheme made by virtue of section 107EC(1) of the Local Democracy, Economic Development and Construction Act 2009, or
(d) an appointment by the chief constable under section 107EC(2) of that Act.”
(6) In section 63 of the Police Act 1996 (Police Advisory Board for England and Wales) in subsection (4) (as inserted by paragraph 15 of Schedule 1) for “also imposes a requirement” substitute “and section 107EE of the Local Democracy, Economic Development and Construction Act 2009 also impose requirements”.
(7) In section 38 of the Police Reform Act 2002 (police powers for civilian staff) in subsection (11A) (as inserted by paragraph 17 of Schedule 1) after paragraph (b) insert—
“(c) any member of staff transferred to that chief constable under a scheme made by virtue of section 107EC(1) of the Local Democracy, Economic Development and Construction Act 2009 (transfer of property, rights and liabilities to chief constable to whom fire functions of combined authority may be delegated);
(d) any member of staff appointed by that chief constable under section 107EC(2) of that Act (appointment of staff by chief constable to whom fire functions of combined authority may be delegated).”
(8) In section 34 of the Fire and Rescue Services Act 2004 (pensions etc) in subsection (11) (as inserted by paragraph 9 of Schedule 1)—
(a) omit the “or” at the end of paragraph (a), and
(b) after paragraph (b) insert—
“(c) transferred to the chief constable under a scheme made by virtue of section 107EC(1) of the Local Democracy, Economic Development and Construction Act 2009, or
(d) appointed by the chief constable under section 107EC(2) of that Act.”
(9) In section 37 of the Fire and Rescue Services Act 2004 (prohibition on employment of police in fire-fighting) (as substituted by paragraph 10 of Schedule 1) in subsection (3)—
(a) after “whom” insert “—(a)”, and
(b) after paragraph (a) insert “, or
(b) functions of a fire and rescue authority which are exercisable by the mayor of a combined authority have been delegated under an order under section 107EA(2) of the Local Democracy, Economic Development and Construction Act 2009.”
(10) In Schedule 8 to the Police Reform and Social Responsibility Act 2011 (appointment, suspension and removal of senior police officers) in paragraph 2 (no appointment until end of confirmation process) in sub-paragraph (1AA) (as inserted by paragraph 23 of Schedule 1) after “section 4F of the Fire and Rescue Services Act 2004” insert “or section 107EA(2) of the Local Democracy, Economic Development and Construction Act 2009”.
(11) In Schedule 1 to the Public Service Pensions Act 2013 (persons in public service: definitions) in paragraph 6 (fire and rescue workers) in paragraph (aa) (as inserted by paragraph 24 of Schedule 1)—
(a) omit the “or” at the end of sub-paragraph (i), and
(b) for the “or” at the end of sub-paragraph (ii) substitute—transferred to the chief constable under a scheme made by virtue of section 107EC(1) of the Local Democracy, Economic Development and Construction Act 2009, orappointed by the chief constable under section 107EC(2) of that Act, or”.”
(i) transferred to the chief constable under a scheme made by virtue of section 107EC(1) of the Local Democracy, Economic Development and Construction Act 2009, or
(ii) appointed by the chief constable under section 107EC(2) of that Act, or”.” —(Mike Penning.)
This new clause makes provision for and in connection with enabling the mayor of a combined authority by whom fire and rescue functions are exercisable to delegate those functions to the chief constable for the police area which corresponds to the area of the combined authority.
Brought up, and read the First time.
The Minister for Policing, Fire, Criminal Justice and Victims (Mike Penning)
I beg to move, That the clause be read a Second time.
Mike Penning
New clause 22 applies the single employer model to combined authority mayors to enable mayors with both policing and fire functions to delegate fire functions to a single chief officer, who will employ both police and fire personnel. This allows combined authority mayors to realise the core benefits of collaboration between the police and fire services, for example by bringing together a senior management team or allowing rapid consolidation of back-office functions. The candidates for metro mayor who are coming forward are particularly looking for that collaboration: it will be essential to producing the efficiencies, economy and effectiveness needed. The new clause will give metro mayors the ability to function in the way we all expect them to.
Lyn Brown
The new clause will give metro mayors the power to put in place a single employer model for the fire service and for the police force, where they have taken on the role of fire and rescue authority and police and crime commissioner. There are already provisions in the Bill that enable metro mayors to take on responsibility for the governance of policing and fire, but there is no existing legislation to give a mayor who has taken on both roles the power to implement the single employer model.
As we discussed in a previous sitting, the Bill provides for police and crime commissioners who have taken responsibility for fire and rescue to put in place a single employer model; the new clause extends this power to mayors. Since we were opposed to the single employer model then, it will be no surprise to the Minister or the Committee that we are still opposed to it now. The Committee will be relieved to hear that I am not going to repeat the arguments I made on the first day against the single employer model in quite as much detail today—the Committee has heard my concerns, and I am sure the Minister took note of them—but I would like to re-address the important arguments.
A large proportion of the work carried out by the fire service is preventive: smoke alarms are checked, sprinklers are fitted and homes are made safer. This preventive work is not an add-on to the fire service’s work; it is at the core of what it does. We need to be honest: there are some people who would not welcome a policeman into their homes without a warrant. Police officers turning up at their door can be a scary experience. There are fears that under the single employer model it may be more difficult for the fire service to carry out vital preventive work if a member of the public is concerned that the firefighters coming into their home may have to share information with or report back to their boss, the police.
There is a fundamental difference between the humanitarian service that the fire and rescue service provides and the law enforcement service carried out by the police. This is not an attack on our police, who provide an important public service, as we all know. However, for the public to allow firefighters into their homes for preventive checks, there has to be a level of trust in the fire service, which is quite simply not paralleled elsewhere.
There is also the issue of workers in the police force and the fire and rescue service enjoying different terms and conditions of employment, not least around the right to strike. I think there are legitimate fears that the single employer model will be used as a means of cutting back on the workers’ rights of those in the fire service.
Finally, I am concerned about extending the power of the single employer model to metro mayors at this late stage in the legislative process. By including that in a late amendment, the Government have not given those living in metropolitan areas the time to consider and be consulted about what is on offer. Will the Minister explain why this important part of the Government’s reform is being made via an amendment at this late stage?
Mike Penning
I am, sadly, not surprised that Her Majesty’s Opposition continue with the concern that they raised about the PCCs. The principle here is pretty simple: that it will have no operational effect on the fire service. There are two separate pillars of funding—two separate positions to be in. We have tabled numerous amendments, which is quite normal; we are making sure that there is no anomaly between PCCs and mayors.
There was initial support from Her Majesty’s Opposition. The shadow Policing Minister said:
“I think that police and fire services logically sit within the context of a combined authority.”—[Official Report, 14 October 2015; Vol. 600, c. 376.]
I agreed with him at the time. What we are now discussing—who trusts whom going into homes—has nothing to do with that; it is to do with whether we have the same system for PCCs as we have for mayors. That is the reason for the amendments.
Jack Dromey (Birmingham, Erdington) (Lab)
This point has been raised previously. It is one thing to seek to get all the statutory agencies effectively to collaborate as part of a combined authority. It is another thing altogether to merge the police and the fire service. We have no problem with the former, but we are opposed to the latter.
Mike Penning
I respect the shadow Policing Minister’s position. There are very few things we disagree on, particularly in the Bill, but on this particular point we disagree. There will be plenty of time on Report and in the other place to discuss that further, but it would be wrong to leave an anomaly between PCCs and mayors, which is why the Government have tabled these amendments. I hope the Committee will approve them.
Question put, That the clause be read a Second time.
The Chair
With this it will be convenient to discuss the following:
Government new clause 42—Offence of breach of pre-charge bail conditions relating to travel: interpretation.
New clause 43—Breach of pre-charge bail—
“(1) A person commits an offence if, having been released on bail under sections 37, 37C(2)(b) or 37CA(2)(b) of the Police and Criminal Evidence Act 1984 under investigation for a terrorism offence or serious crime offence they breach any of the terms of their bail specified that place restriction on their ability to travel including surrendering their passport and/or place conditions on their residency.
(2) A person guilty of an offence under this section shall be liable on summary conviction to 6 months imprisonment or a fine or to both.
(3) For the purposes of this section, serious crime shall be specified of the Secretary of State by order.”
This new clause would make it an offence for those suspected of serious crimes and terrorism to break bail conditions linked to travel.
Government amendment 226
Mike Penning
This is a very important Government new clause and amendment, which I discussed with the shadow Minister outside the room, but I think it is particularly important that we debate them properly in Committee. The issue of suspected terrorists absconding from pre-charge bail was quite rightly raised on Second Reading. In January, the Prime Minister indicated to the Liaison Committee that the Government would look very carefully at the issue to avoid a repeat of instances in which somebody is not charged, released on police bail and then breaks the conditions of that police bail within the counter-terrorism context.
This new clause is about counter-terrorism suspects, a subject on which I know the Opposition would like to expand. Although I will keep under review any other offences that are alleged against somebody who has been released on pre-charge bail, the Counter-Terrorism Act 2008 already lists a range of offences, including membership of proscribed organisations, that would prevent bail from being granted. The new clause relates to people for whom bail has been granted because the police need to continue with their investigations and do not have evidence to give them concern about a more serious offence taking place. The breach of this bail would carry a maximum penalty of 12 months imprisonment. This very important Government new clause enacts the commitment that we made, and I look forward to the Opposition’s response.
Jack Dromey
The starting point for us is that we may have our disagreements on other fronts but there is unity across the House in opposition to the grotesque threat posed to our nation by terrorist violence. There is utter determination that we rise to the challenge of keeping our communities safe. On Second Reading, my right hon. Friend the Member for Leigh (Andy Burnham), the shadow Home Secretary, called on the Government to toughen the police bail regime for terror suspects, and we are pleased that the Government have listened and are now taking action.
James Berry (Kingston and Surbiton) (Con)
Is the hon. Gentleman aware that that was in fact a recommendation of the Select Committee on Home Affairs? The right hon. Member for Leicester East (Keith Vaz) circulated something to the Committee this morning saying that it was his cross-party Committee that brought the issue to the Government’s attention, and it is something on which we all agree.
Jack Dromey
All I would say is that this measure was not part of the original Bill. It is certainly true that the Home Affairs Committee has done valuable work on this matter, but ultimately it was our proposal on Second Reading that led to the Government’s welcome shift. The fact that there is cross-party support is also welcome.
If we believe that the Government have moved, we are not convinced that they have yet gone far enough. The issue of principle is simple: it should not be right that terror suspects on pre-charge police bail have previously been able to leave the country with ease to escape justice, and it is essential that the loophole is closed as a matter of urgency. The Government’s new clause would make it an offence for those suspected of terrorism to break bail conditions linked to travel.
On Second Reading, my right hon. Friend the Member for Leigh referred to the case of Siddhartha Dhar, who absconded while on police bail and went to Syria via Dover, as a prime example of the unacceptable loophole in the current system. In reference to what the hon. Member for Kingston and Surbiton said earlier, the Home Affairs Committee investigated forensically and collected evidence on this important issue. That was strongly buttressed by the compelling evidence given by the head of counter-terrorism, Mark Rowley, and Sara Thornton, the chair of the National Police Chiefs Council, when they came before this Committee. They both made it absolutely clear that they wanted to see the removal of the limitations currently obtaining, which are operational constraints.
Although we welcome the Government’s amendment and new clause, we want to ensure that in cases such as that of Siddhartha Dhar the police are able to insist on a suspect’s passports being handed over when they are in the custody suite. We should not wait to write to them after they have been released to say, “Please, would you hand over your passport?” because we risk that they may have already used the opportunity to leave the country, as Mr Dhar did. The Home Affairs Committee recommended that to the Government some considerable time ago, and we welcome the fact that Ministers are now acting, but their proposal does not set out how exactly the police can seize travel documentation, where necessary. For example, will the police be able to accompany the suspect to wherever his or her passport is being stored? Could they prevent a suspect from leaving until documentation is brought to the station? Will the police be able to request the surrender of passports and travel documents as a condition of release from custody? What exactly does the Policing Minister envisage happening next time the police arrest a terrorist suspect who inconveniently does not have his travel documentation on him at the time of arrest? I would be grateful if the Government would set out in some detail how they see this working.
Mike Penning
The new clause is about breach of a bail condition that carries a 12-month sentence. The police already have the power to set police bail conditions and, if they wish, they could say that a person cannot be released on bail until their travel documents have been surrendered. That could be part of the bail. It could be seven days. They already have the powers. It is not within the Bill because it does not need to be.
Jack Dromey
I have looked at what the Minister said in our earlier discussions, in particular in relation to the Terrorism Act 2000. There is no provision for bail, before or after charge, under the Terrorism Act. Under the Act it boils down to either charging or releasing a suspect; the initial detention limit is 48 hours, which is extendable, and there is no existing terrorist legislation, therefore, that provides for the police to seize a passport from a terrorist suspect or relates to the enforcement of pre-charge bail conditions.
Jake Berry (Rossendale and Darwen) (Con)
An interesting point in the case of terrorism is that many—not all—people accused of terrorism offences will have dual nationality and more than one passport. Has there been any thought as to how that would be discovered by the police, if the information was not volunteered, and what provisions may be required to get someone to surrender passports of another country as well as their British passport?
Jack Dromey
The hon. Gentleman makes a very good point. That is precisely why I referred earlier to “passports”. There have been a number of cases of people having dual nationality in the way the hon. Gentleman has suggested. Fundamentally, this is about making sure that we do not have somebody like Dhar who walks out of the police station, says, “Yeah, okay, I will surrender my passports, I will be back tomorrow” and is then on the first plane to get out of the country. It is about certainty beyond any doubt that that simply cannot happen in future. Relatedly, have the Government looked at the issue of the ability of agencies to communicate immediately when passports are to be surrendered—for example, crucially, the Border Force? We look forward to clarification on these crucial points.
On another issue, the Government proposal applies only to terrorist suspects and not to those suspected of serious crimes. There is no question but that there is something uniquely awful about the terrorist threat to our country but, having said that, our new clause includes serious crime offences to be specified by the Secretary of State in regulation and so would address cases where, for example, suspects have fled the country before standing trial over rape allegations. The Minister has very helpfully said that he will keep this matter under review. We hope, however, that the Government will now give the Home Secretary that power; of course, it is for the Home Secretary to determine, in consultation, how that power is exercised thereafter.
The Minister was right when he said that the National Police Chiefs Council highlighted that it would like this power not to be confined to counter-terrorism. We urge the Government to include suspects of other offences in their proposals. As such, in circumstances where the Government are taking action, we will not press our new clause to a vote today. We seek assurances from the Government on the points I have raised as soon as possible, however, and we stand ready for further dialogue before Report. I very much hope that we can go to Report with a common position. In that dialogue, we will seek a strengthened clause and we will work with the Government to make sure that the pre-charge bail regime truly has teeth. We will return to this on Report; for now, on this crucial issue, we urge the Government to reflect and I stress, once again, that we very much hope that we are able to make common progress by the time of Report. The way we vote on Report will depend on whether we can put our hand on our hearts and say that never again will there be a case like that of Dhar.
Mike Penning
I am genuinely pleased that the shadow Minister is not going to push this to a vote. Perhaps it is right that a subject of this seriousness is debated on the Floor of the House on Report. Yet again, I offer the shadow Minister my help and that of my Bill team to see if we can come to a consensus.
The shadow Minister asked specifically whether the police can accompany the person who was still under arrest before they were given police bail, to ascertain their travel documents; under the Police and Criminal Evidence Act 1984, they can do that. Where police have already requested under the arrest warrant their immediate surrender, they can accompany the individual to their place of residence. If they breach that—in other words, they try to abscond and so on—that is where the sanctions in the new clause apply.
Of course, the shadow Minister is absolutely right that under the Terrorism Act 2000, there is no bail—a point that I made earlier on. This proposal relates to other alleged offences. Let us see what position we can come to. It is very important, because we are all as one in wanting to protect the public. We are as one in wanting people who are suspected of terrorism offences not to abscond. But the police have substantial powers at the moment. I have discussed that with them extensively to make sure that they use their existing powers, including making sure that they have the travel documents.
I do not want to go into individual cases. It is for officers in an operation to make operational decisions, not for politicians, but it is for us to give them the powers and to say to them, sometimes, “By the way, you already have the powers and you should use them.” I am pleased that new clause 43 will not be moved and we offer as much assistance as possible to reach consensus, as we have done throughout the progress of the Bill.
Question put and agreed to.
New clause 41 accordingly read a Second time, and added to the Bill.
New Clause 42
Offence of breach of pre-charge bail conditions relating to travel: interpretation
“(1) This section defines words used in section (Offence of breach of pre-charge bail conditions relating to travel)(2).
(2) “Travel document” means anything that is or appears to be—
(a) a passport, or
(b) a ticket or other document that permits a person to make a journey by any means from a place within the United Kingdom to a place outside the United Kingdom.
(3) “Passport” means—
(a) a United Kingdom passport (within the meaning of the Immigration Act 1971),
(b) a passport issued by or on behalf of the authorities of a country or territory outside the United Kingdom, or by or on behalf of an international organisation, or
(c) a document that can be used (in some or all circumstances) instead of a passport.
(4) “Port” means—
(a) an airport,
(b) a sea port,
(c) a hoverport,
(d) a heliport,
(e) a railway station where passenger trains depart for places outside the United Kingdom, or
(f) any other place at which a person is able, or attempting, to get on or off any craft, vessel or vehicle in connection with leaving the United Kingdom.”.—(Mike Penning.)
This new clause defines certain terms used in NC41.
Brought up, read the First and Second time, and added to the Bill.
New Clause 7
National Assembly for Wales: devolution of responsibility for policing
“(1) In Schedule 7 to the Government of Wales Act 2006 after paragraph 20 insert—
Policing
21 Policing, police pay, probation, community safety, crime prevention.
Exceptions—
National Crime Agency
Police pensions
National security”.—(Liz Saville Roberts.)
Brought up, and read the First time.
Liz Saville Roberts (Dwyfor Meirionnydd)
: I beg to move, That the clause be read a Second time.
Diolch yn fawr, Mr Cadeirydd. It is a pleasure to serve under your chairmanship, Mr Howarth. This is a probing new clause, and I do not intend to press it to a Division. None the less, I draw the Committee’s attention to the fact that policing in Wales is an anomaly in the UK. Although policing is a devolved power in Northern Ireland and Scotland, Welsh policing remains reserved to Westminster. At the same time, the Welsh police forces are unique in the UK in that they are non-devolved bodies operating within a largely devolved public services landscape.
When we were discussing the police and fire authorities earlier in Committee, I was aware that there were perhaps cost implications for the police forces in Wales that are not necessarily appreciated. We are seeing changes happening even during the progress of the Bill. It is as important to draw attention to that as much as to the principle of devolving policing.
The Welsh police forces are unique in the sense that they are required to follow the agenda of two Governments; crucially, that means that Welsh police forces operate on the basis of English priorities, such as knife crime. Some of these issues are major problems in England but less so in Wales; correspondingly, issues that are significant in Wales have a lower priority here. Thus, while there are clear and numerous benefits to devolving policing, the arguments for keeping it reserved to Westminster appear to be comparably weak—and weakening, given that it is already devolved to Scotland and Northern Ireland.
That was, of course, reflected in the recommendations of the Silk commission, which was set up by the previous coalition Government and comprised a nominee from each of the four main parties, academics and industry experts. It received written evidence, heard oral evidence and visited every corner of Wales; it was a very broad consultation project. It heard evidence from the police themselves calling for the devolution of policing, and the report recommended as such. All four parties represented on the Silk commission recommended that policing be devolved, as has every Member of the National Assembly.
Jack Dromey
Wales is a proud nation, well served on the one hand by some excellent Labour Members of Parliament on this Committee, including my hon. Friends the Members for Swansea East and for Merthyr Tydfil and Rhymney, and on the other hand by a first-class police service. Like the Policing Minister, I have seen that first hand in Wales—more recently in north Wales with David Taylor, looking at the good work being done to tackle rural crime.
In south Wales, only last weekend, together with my hon. Friend the Member for Swansea East, I was looking at how the police safeguard public order at major public events, in that case a football match. I was deeply impressed by the police officers that we met—Jason, Steve and Joe—who were all doing a first-class job together with their police and crime commissioner Alun Michael. They are rooted in the community and talk about the community. That is a style of policing that has evolved over the past 20 years and is popular with the people of Britain as a whole, and Wales in particular.
So Wales is a proud nation, well served. It is right, nevertheless, that the people of Wales have a greater say over the policing of Wales. It is also right that the Welsh Assembly has the right to draw up in partnership a policing plan for Wales. That would be in partnership, on the one hand, with the four forces and their police and crime commissioners and, on the other hand, a range of statutory agencies.
Historically, Labour is the party of devolution. We do support the devolution of greater powers over policing to Wales but time and thought are necessary to get it right. I was speaking only last night with Carwyn Jones, and he has talked about a 10-year process of evolution of the arrangements in Wales and those between Wales and the rest of the UK.
Time and thought are necessary due to the sometimes complex interface with other areas in the criminal justice system and Government, but they are also necessary because I do not believe that anyone is proposing that all powers be devolved to Wales. The hon. Member for Dwyfor Meirionnydd made the point that the work of the National Crime Agency on serious and organised crime would clearly not be devolved. Likewise, counter-terrorism strategy would clearly not be devolved. As an example at the extreme end, when I was in Swansea with my hon. Friend the Member for Swansea East, we talked at length about the policing of the NATO summit and how to keep safe Heads of State from all over the world. Clearly, that would not be devolved either.
It is therefore a question of working through those crucial principles at the next stages. How can the people of Wales have a greater say in their policing? How best can the Welsh Assembly have the right to draw up a policing plan for Wales, in consultation with others? Then comes a process of evolution of the existing arrangements to achieve those objectives. I am grateful to the hon. Lady for her comments, including that she would not push the amendment to a vote. She has raised important and complex issues, but the amendment is not the appropriate vehicle to resolve them; they will require resolving in the next stages.
Finally, I could not let an opportunity like this go by without reminding the Committee that in Labour Wales, a Labour Administration has made a difference to policing, with 500 extra PCSOs, 200 of them in south Wales. It was a privilege to meet some of them at the weekend. They are good men and women on the ground keeping our communities safe, thanks to what a Labour Administration did.
Mike Penning
I reiterate the comments made by the shadow Policing Minister about the tone of how the hon. Member for Dwyfor Meirionnydd introduced her amendments. It has been useful. The issue is enormously complicated for Wales as part of the United Kingdom. The obvious references to Scotland and Northern Ireland are difficult to add to a report, not least because they have completely independent and different criminal justice systems. There is only one police force in Scotland now, and there has been only one police force in Northern Ireland for many years.
This issue must be decided by the people of Wales. The Government have made it clear that if there is not consensus within the Silk commission’s proposals, we will not consider devolving full powers to the Government of Wales and the Welsh Assembly. I heard the hon. Lady say that there is consensus, and that is certainly true of the correspondence and conversations that I have been having. I reiterate what the shadow Police Minister said. I have visited Wales on many occasions. There are many Conservative MPs there, not least the Secretary of State for Work and Pensions. What I am trying to indicate politely is that it is not a one-party state.
PCC elections will be held in Wales imminently. They will give the people of Wales the best chance to decide what sort of policing they want in their part of the world. That is devolution, and that is democracy. Although I understand that this is a probing amendment, I am also pleased that new clause 7 will not be pressed to a vote.
Liz Saville Roberts
I welcome the change of standpoint by Labour MPs. Possibly it indicates a shift since the process undertaken through the St David’s day negotiation resulted in not all the recommendations of the Silk report being adopted, even though they were cross-party.
On devolution and the issues to be decided by the people of Wales, when I was discussing the draft Wales Bill, we were told that in the St David’s day discussions certain issues had been brought ahead or otherwise. I note that the people of Wales did not support the police commissioners in that state when that decision was made.
Finally, another issue that is developing as we speak, in the nature of devolution, is the development of a distinct legal jurisdiction, with a separate legislature in Wales able to produce its own legislation. Although we are talking about 10 years, I anticipate and very much hope that we will see policing devolved to Wales before then. I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 10
Annual Report by Chief Inspector of Constabulary
“In Part 2 of the Police Act 1996, omit section (4A) and insert—
“(4A) A report under subsection (4) must include the chief inspector’s assessment of—
(a) The efficiency and effectiveness of policing, and
(b) The crime and non-crime demand on police in England and Wales for the year in respect of which the report is prepared.”.”—(Jack Dromey.)
This new clause would add a duty for HMIC to assess demand on police on a yearly basis in addition to the efficiency and effectiveness of policing.
Brought up, and read the First time.
Jack Dromey
I beg to move, That the clause be read a Second time.
We believe it is appropriate to charge the chief inspector of constabulary with producing reports on a regular basis, not just on the efficiency and effectiveness of policing but, crucially, on the crime and non-crime demand on police in England and Wales for the year in respect of which the report is prepared and for two and five years ahead. For example, we may disagree on how to handle cybercrime, but it is common ground across the House that it is a major and growing area of crime and a relatively new development; we must therefore always properly assess the demand on the police service before making decisions about how best to meet that demand.
To be quite frank, the problem is that things are increasingly difficult for the police. Some 18,000 police officers and some 5,000 police community support officers have gone. The thin blue line has been stretched ever thinner; ever fewer are being asked to do ever more, on four fronts in particular.
First, following scandals in recent years, there is now a great national will to do everything necessary to protect children in our society. Only last week, Simon Bailey, the chief constable who heads up the police’s multi-faceted strategy on the protection of children, said that it was already costing the police £1 billion, and that that would rise to £3 billion by 2020, such are the scale and complexity of the cases involved, both current and historical, and the investigation necessary.
Secondly, there has been an enormous increase in cybercrime. As we were rehearsing only yesterday, someone is more likely to be mugged online than in the street. Some of the major banks have estimated 20% or 30% increases in attempted crime against their customers every year. The scale of it is enormous.
Thirdly, there is the sheer scale of what is required for counter-terrorism. Last November, the Government decided not to go ahead with what would have been 22% cuts on top of 25% cuts. One reason for that decision was the strong representations, made by people like Mark Rowley and Bernard Hogan-Howe, that numbers matter, both for surge capacity in the event of a Paris-style attack and for neighbourhood policing, which was described by Peter Clarke, the former head of counter-terrorism, as the “golden thread” that runs from the local to the global. The patient building of community relationships is key to gaining intelligence; as a consequence, arrests for terrorism are now happening at the rate of almost one a day. As Bernard Hogan-Howe and Mark Rowley have said before the House, that is a consequence of good neighbourhood policing, but it is incredibly resource-intensive.
Fourthly, there is the wider problem of the police being increasingly seen as the force of last resort. In his powerful contribution this morning, my hon. Friend the Member for North Durham rightly made the point that, if there are no other agencies ready to respond, the police are the force of last resort. Sara Thornton, the chair of the National Police Chiefs Council, said recently that the police tend to be the people who, after 5 o’clock on a Friday, can be counted on to turn out when others perhaps do not because they no longer have the resources. Classically that includes going after looked-after children.
Mike Penning
Let me say from the outset that I recognise the importance of understanding the demand on police forces, which is exactly where the shadow Policing Minister is coming from. However, I do not see the need for new clause 10, as we are actually doing many of the things that the shadow Minister has asked for.
It is for a chief constable to assess the demands that their forces face and ensure that resources are allocated accordingly. The purpose of inspectors of constabulary is clearly set out in section 54(2) of the Police Act 1996. Their role is to inspect the “efficiency and effectiveness” of every force. Section 54(4) and section 54(4)(a) of the 1996 Act require the chief inspector of constabulary to prepare an annual report, and for that report to include his assessment of the efficiency and effectiveness of policing in England and Wales.
Reliable, independent information is crucial in understanding the demands on the police force. It is for this reason that the Home Secretary asked the inspectorate to introduce annual, all-force inspections, which has led to the development of the Police Effectiveness, Efficiency and Legitimacy—commonly called PEEL—programme. As part of the efficiency assessment, the inspectorate assesses how effectively each force understands and is responding to the demand that it faces. The inspectorate also works with forces to support them to better understand the demand that they face. There is work going on as we speak, including from the College of Policing, which I think everybody accepts has been a great success.
That includes the development of force management statements, which will be prepared with chief constables, and are intended to ensure that information on a force’s available resources and the demand they face is produced annually to an agreed standard—ensuring the same across all forces—and is accessible to chief constables, PCCs and, most importantly, the public. I accept that this is a work in progress, but it is in progress, and the police are doing it themselves with the inspectorate and the College of Policing so, respectfully, I do not see the need for new clause 10. I hope that the shadow Minister understands that.
Jack Dromey
Some of the things that the Minister said were helpful. We have common ground on wanting to understand the nature of need. I hope that the Minister’s comments on what the Government are doing and will do in the next stages will contribute to exactly that. In those circumstances we will not push the amendment to a vote. I beg to ask leave to withdraw it.
Clause, by leave, withdrawn.
New Clause 16
Digital Crime Review
“(1) The Secretary of State shall have a duty to provide for a review of legislation which contains powers to prosecute individuals who may have been involved in the commission of digital crime in order to consolidate such powers in a single statute.
(2) In the conduct of the review under subsection (1), the Secretary of State must have regard to the statutes and measures that he deems appropriate, including but not limited to—
(a) Malicious Communications Act 1988, section 1,
(b) Protection from Harassment Act 1997, section 2, 2a, 4, 4a,
(c) Offences against the Person Act 1861, section 16, 20, 39, 47,
(d) Data Protection Act 1998, section 10, 13 and 55,
(e) Criminal Justice Act 1998, section 160,
(f) Regulation of Investigatory Powers Act 2000, section 30(1), (3),(5),(6), 78(5),
(g) Computer Misuse Act 1990, as amended by Serious Crime Act 2015 and Police and Justice Act 2006,
(h) Contempt of Court Act 1981,
(i) Human Rights Act 1998,
(j) Public Order Act 1986, section 4, 4a, 5, 16(b), 18,
(k) Serious Organised Crime Act 2005, section 145, 46,
(l) Wireless Telegraphy Act 2006, section 48,
(m) Criminal Justice and Courts Act 2014, section 32, 34, 35, 36, 37,
(n) Protection of Children Act 1978,
(o) Obscene Publications Act 1959,
(p) Crime and Disorder Act 1998, section 28, 29-32,
(q) Criminal Justice Act 2003, section 145, 146,
(r) Communications Act 2003, section 127, 128-131,
(s) Data retention and Investigatory Powers Act 2014, section 4,
(t) Sexual Offences Amendment Act 1992, section 5,
(u) Counter Terrorism and Security Act 2015,
(v) Protection of Freedoms Act 2012, section 33(5), 29(6),
(w) Criminal Damage Act 1971, section 2,
(x) Sexual Offences Act 2003, section 4, 8, 10, 62,
(y) Criminal Justice and Police Act 2001, section 43,
(z) Magistrates Court Act 1980, section 127,
(aa) Suicide Act 1961, section 2(1) as amended by Coroners and Justice Act 2009,
(ab) Criminal Justice and Immigration Act 2008, section 63,
(ac) Theft Act 1968, section 21, and
(ad) Criminal Law Act 1977, section 51(2)
(3) It shall be a duty of the Secretary of State to determine for the review any other statute under which persons have been prosecuted for a crime falling under section 1 of this Act.
(4) In the conduct of the review under subsection (1), the Secretary of State must consult with any person or body he deems appropriate, including but not limited to—
(a) the Police,
(b) Crown Prosecution Service,
(c) judiciary, and
(d) relevant community organisations.”—(Liz Saville Roberts.)
Brought up, and read the First time.
The Chair
With this it will be convenient to discuss the following:
New clause 17—Surveillance and monitoring: offences—
“(1) A person commits an offence if the person—
(a) uses a digital device to repeatedly locate, listen to or watch a person without legitimate purpose,
(b) installs spyware, a webcam or any other device or software on another person’s property or digital device without the user’s agreement or without legitimate reason,
(c) takes multiple images of an individual unless it is in the public interest to do so without that individual’s permission and where the intent was not legitimate nor lawful,
(d) repeatedly orders goods or services for another person if the purpose of such actions is to cause distress, anxiety or to disrupt that person’s daily life,
(e) erases data remotely whilst a digital device is being examined by the police or any other lawful investigation,
(f) monitors a digital device registered to a person aged 17 or less if the purpose of that monitoring is to obtain information about a third person,
(g) monitors any other person’s digital device if the intent of the monitor is either to damage or steal data from that person, or
(h) creates a false persona on line without lawful reason if the purpose of such a creation is to intend to attempt to defraud, groom, impersonate or seriously damage the reputation of any other person.
(2) A person guilty of an offence under subsections (1)(a) or (b) is liable on conviction to a term of imprisonment not exceeding 12 months or a fine.
(3) For the purpose of subsection (1)(a) “repeatedly” shall be deemed as on two occasions or more.
(4) A person guilty of an offence under subsection (1)(d) is liable on conviction to a fine not exceeding the statutory limit.
(5) A person guilty of an offence under subsections (1)(e), (f), (g) or (h) is liable on conviction to a term of imprisonment not exceeding 12 months.
(6) The Secretary of State shall introduce restrictions on the sale of spyware to persons under the age of 16 and requests all persons who are purchasing such equipment to state their intended use of such equipment.”
New clause 18—Digital crime training and education—
“(1) It shall be the responsibility of the Home Department to ensure that each Police Service shall invest in training on the prioritisation, investigation and evidence gathering in respect of digital crime and abuse.
(2) It shall be the responsibility of the Home Department to ensure that all Police services record complaints and outcomes of complaints of digital crime and abuse.
(3) It shall be the responsibility of the Secretary of State for the Home Department to publish annual statistics on complaints and outcomes of digital crime and abuse.”
Liz Saville Roberts
Diolch yn fawr. Forgive me if my understanding of procedure is incorrect; I am learning as I go along. I speak about these three new clauses and then I take a response, if I understand correctly.
Liz Saville Roberts
Thank you very much. I am just covering myself in case something goes terribly wrong.
New clause 16 would place a duty on the Secretary of State to undertake a review of all relevant legislation that contains powers to prosecute people involved in digital crime, and to consolidate those powers in a consolidation Bill. This is because prosecution can currently be initiated using a confusing array of criminal legislation. There are 30 Acts listed here; there are actually more than that but these are the most relevant. Some date back to the 19th century. Existing provision is therefore evidently fragmentary and inadequate, and that is a hindrance to effective prosecution. It allows abuse—which, interestingly, we are talking about, from all directions, more and more—to continue unchecked, up to a point.
A very high threshold is set for the prosecution of hate crime over the internet, and this is understandable, but the way this threshold is interpreted varies between police forces across the country. Indeed, this is true of many aspects of digital crime. People’s experiences when they approach the police can vary widely under these interpretations, and the fact that so many pieces of legislation have to be referred to does not bring any additional clarity when clarity is what we need, first and foremost. So consolidation is the theme of new clause 16.
New clause 17 relates to offences associated with surveillance and monitoring. It would make it an offence, for example, to post messages or images that are discriminatory, threatening or would cause distress or anxiety. It would make it illegal to install spyware or webcams without good reason. It would also place further responsibilities on social media platforms to block offensive postings or postings inciting violence, for example. Current legislation is insufficient to deal with actions whereby people are now using digital means to harass or carry out crime.
New clause 18 is concerned with digital crime training and education. Given that the College of Policing estimates that half of all crimes reported to front-line officers now has a cyber element, there is a real need to consider how we prepare police personnel at all levels to deal with this problem. It is estimated that there are 7 million online frauds a year and 3 million other online crimes. The Chief Constable of Essex, Stephen Kavanagh, has warned that the police risk being swamped with digital crime cases. None the less—this is where training is important—I have been informed that only 7,500 police officers out of a total of 100,000 across Wales and England have been trained to investigate digital crime. This is a particularly significant area because it is extremely new to senior police officers in particular; it has not been part of their training in the past. There is also an issue for the police in that those who are particularly efficient at dealing with digital crime are often offered posts outside the police service.
To summarise this simplistically, it appears that the police, historically, were trained to deal with 20th century crimes, while we are now seeing crime shifting online. From those answering phones in call centres to those dealing with front-line issues, they all need training to respond appropriately to what threatens to become overwhelming. How do we identify what is crime that needs to be addressed and what is unfortunate social behaviour, which we would not condone but we would not necessarily associate with the police? There have been instances in the past of misinterpretation of the most adequate approach. I do not intend to push these new clauses to a Division, but I await the Minister’s response with interest.
Jack Dromey
The hon. Lady made a compelling case. I have three points. First, there is the nature of the growing threat and, I hate to say it, the terrible things that people do in the privacy of their homes, including, for example, hate crime and abuse on social media, which are absolutely unacceptable.
Secondly, the hon. Lady is right when she says that there is a real problem of capacity in the police force. Stephen Kavanagh is an impressive chief constable. Some of us struggle with digital literacy, but the figure to which he referred of fewer than one in 10 people being digitally literate is chilling given the scale and rapid rise of digital crime and cybercrime.
Thirdly and finally, the hon. Lady makes a good point about strategy in the police service. For example, with the national fraud strategy, the police have been moving down the path of a national product but local delivery. Local delivery means the work that the police do in terms of prevention and their being more digitally literate in future. Indeed, Gavin Thomas, the new chairman of the Police Superintendents Association, recently said that many more younger police officers who understand the technology need to be recruited. The hon. Lady has put her finger on a very important set of issues relating to a rapidly growing area of crime, the sheer scale of which the police are struggling to cope with.
Karen Bradley
I am very grateful to the hon. Lady, whose constituency I am going to try to pronounce correctly. I last dealt with this pronunciation when we considered the Serious Crime Bill last year. I have the luxury of the Solicitor General, who is a very adept Welsh speaker, to prompt me on how to pronounce this: Dwyfor Meirionnydd.
Karen Bradley
Not bad. I will not try again, but at least I have got that far. I am very grateful to the hon. Lady for tabling the new clauses, because they give the Committee the opportunity to debate these important issues. I hope to reassure her that the Government are absolutely committed to tackling them.
Digital crime and cybercrime are threats that we take very seriously. The Government continue to invest in law enforcement capabilities nationally, regionally and locally to ensure that law enforcement agencies have the capacity to deal with the increasing volume and sophistication of online crime. Through the national cyber-security programme, we invested more than £90 million in the previous Parliament to bolster the law enforcement response, and we will continue to invest. As the Chancellor announced in November, the Government have committed to spending £1.9 billion on cyber-security over the next five years, including for tackling cybercrime.
Additionally, we have invested in the national cybercrime unit in the National Crime Agency and created cyber teams in each of the regional organised crime units. Those teams provide access to specialist capabilities at a regional level. I think that we can all accept that it is expensive to have such technical support available to every force at a local level, and that is why the regional organised crime units, with their fantastic cyber units that are accessible to all forces, are incredibly impressive.
I remember visiting the south-east regional organised crime unit during the last Parliament, when organised crime was part of my portfolio, and meeting the young lady who had sat in that unit and cracked the case—I do not know if hon. Members remember it—of the Xboxes that no one could access at Christmas because of the activity of some hackers. A young lady working in one of our regional organised crime units here in the UK solved that crime and found the individuals responsible. We should be proud of the work that those forces do and the fact that we have such incredibly talented individuals working in the ROCUs.
James Berry
Does my hon. Friend agree that a lot of this online crime—online fraud—is not local crime but happens in boiler rooms that sell, or mis-sell, things across the whole of the UK, and that there needs to be a collective national approach to it? A lot of this work is done by Action Fraud, which is based in the City of London police, so that the people committing these crimes that affect people across the UK are investigated in a single place here in London.
Karen Bradley
My hon. Friend gets this absolutely right. As a central repository of intelligence and information, Action Fraud can work out which force is best placed to investigate. It may well be that that is the National Crime Agency or an international force. I will give an example. One of my constituents could go to the marketplace in Leek in Staffordshire Moorlands and have a fraud committed on them there. It would be very clear that that had happened in Staffordshire Moorlands and that Staffordshire police should investigate. But if that happens online, the criminal could be based in eastern Europe, or the far east, or anywhere in the UK. Action Fraud can put that information into a central repository and get the links; that means that we have an excellent facility for finding the right force to investigate and for finding the criminal.
Mr Kevan Jones (North Durham)
I do not disagree with what the hon. Member for Kingston and Surbiton was saying. These things are best looked at nationally—some of the conspiracies are clearly international as well—but does the Minister also agree that one of the problems with Action Fraud is that many people who have contacted it feel let down because of a lack of feedback about what happens in their individual case, or how their individual case may well be helping a bigger fraud?
Karen Bradley
The hon. Gentleman makes a valid point. I had ministerial responsibility for Action Fraud, then my right hon. Friend the Policing Minister covered it and it now sits within the portfolio of the Minister for Security. We have all identified that problem and the City of London police are taking action to address that. They understand that feedback.
There has been a problem that local forces feel that they can pass the information to Action Fraud and it will deal with everything. There is a still an obligation on the local force to feed back to the individual. The crime has still been committed on that individual in the local force area, and it is incredibly important, and incumbent on the local force— working with Action Fraud—to make sure that feedback is given. I echo the hon. Gentleman’s comments.
It is important to make the point that crime is crime—whether it happens online or offline, it is crime. Somebody stealing money from someone is theft. It may be fraud. It may be that it could be prosecuted under some other offence, but it does not matter what the offence is—it is still crime. We need to make sure that the police have the capabilities to understand where the evidence is. It is not like somebody breaking into your home leaving fingerprints, but they will be leaving fingerprints online. There will be digital fingerprints all the way back. We need to make sure that the forces have the capability to see that and that local forces also know the opportunities that this affords.
One of my favourite examples of the great opportunity of online is that if somebody breaks into a house and they are carrying a smartphone, it will try to find the wi-fi. There will be a digital fingerprint from that smartphone. That is an opportunity for local forces to be able to crack more crimes.
We need to ensure that training is happening. Working across the Home Office with local forces, the National Crime Agency and ROCUs, I know that there is an incredible amount of work going on to ensure that local forces and police officers—bobbies on the beat—understand the problem that they are dealing with and how to tackle it. But it is crime. It does not matter whether it is online or offline: it is crime.
Turning to the new clauses, I will deal first with new clause 16, which calls for a digital crime review. As the hon. Member for Dwyfor Meirionnydd explained, the aim of such a review is to consolidate into a single statute criminal offences and other powers relevant to tackling digital crime and the misuse of digital devices and services. She made a very persuasive argument, but I am far from persuaded that such a lengthy and costly exercise would deliver the benefits she seeks. I do not accept her premise that the criminal law is defective in this area. As a general principle, any action that is illegal offline is also illegal online.
Legislation passed before—in some cases, well before—the digital age has shown itself sufficiently robust and flexible to be used today to punish online offending. Consequently, most of the long list of statutes and offences in new clause 16 relate to offending that may be carried out by both digital and non-digital means. I think the terminology is that this is cyber-enabled crime: it is the same crime that has always happened—it is just that the digital platform of the internet enables criminals from thousands of miles away to have access to victims here in the UK and across the world that they would never have had access to without the internet.
Crime is crime. It does not matter whether it is 20th-century or 21st-century crime—it is crime, and it needs to be tackled. The offences that have long been tested in the courts and in the legal system are the right ones to use, whether they have been committed online or offline.
The new clause suggests that the Government should review, with a view to producing a single statute, all legislation
“which contains powers to prosecute individuals who may have been involved in the commission of digital crime”.
It would be difficult, if not impossible, to separate all those powers from those used to prosecute non-digital crime. The new statute would not consolidate the powers, as the new clause suggests. Rather, it would inevitably reproduce and duplicate many existing offences, which would also need to be retained in existing legislation for non-digital offending.
That is not to say that, where we identify specific gaps in the law or new behaviours that ought to be criminalised, we will not take action to plug those gaps. Indeed, the Bill will criminalise the live streaming of offences relating to the sexual exploitation of children. Years ago, none of us would even have thought it possible, but there is live streaming and we need to make sure that we deal with it.
Likewise, in the last Parliament we created a new criminal offence of disclosing private sexual photographs and films
“without the consent of an individual who appears in the photograph or film, and with the intention of causing that individual distress.”
That is what we would perhaps call revenge porn. I think we can all see that that crime may have been committed before, but a partner sharing a photograph with a few friends in the pub, although equally offensive, is not as destructive as that photograph appearing online and being available across the world for millions of people to see. It is very important that where there is criminality and we see gaps like that, we act. We are determined to do so, and will continue to do so. I mentioned that the hon. Lady’s predecessor was a member of the Public Bill Committee that considered the Serious Crime Act 2015. In that Act, we further strengthened the Computer Misuse Act 1990.
New clause 17 seeks to create a raft of new offences relating to digital surveillance and monitoring. I presume that the intention is to address issues such as harassment and stalking offences, which can now occur through digital means. I want to be absolutely clear: abusive and threatening behaviour, in whatever form and whoever the target, is totally unacceptable. That includes harassment committed in person or using phones or the internet. The Protection from Harassment Act 1997 introduced specific provisions to deal with incidents of harassment, including the offences of harassment and putting people in fear of violence—offences that may be committed by online or offline behaviour, or a mixture. The 1997 Act also enables victims to apply for an injunction to restrain an individual from conduct that amounts to harassment, and it gives courts the power to make restraining orders. Those powers are regularly used to successfully prosecute offences committed by digital means.
I want to add one other point. I do not think that the issue we are discussing is whether the offence exists or whether it is sufficient; it is about understanding the offences and ensuring that the public and law enforcement know the offences and use them appropriately. I have experience of this in my own constituency: a business run by one of my constituents was subjected to an online trolling attack. I made the point that if my constituent had walked down the street and paint had been thrown at her, we would all have understood that offence. This was, effectively, digital paint being thrown at her from hundreds of miles away to destroy her business. That does not change the fact that she was being harassed. The issue is not that the offences are in some way lacking; it is about ensuring that they are known and understood, and that appropriate evidence is gathered.
Mims Davies (Eastleigh) (Con)
Does the Minister agree that online and offline behaviour is partly an educational issue? If my 12-year-old was at the shops for four or five hours, doing what they wanted, unmonitored and unchecked, I would certainly ask who they were talking to, what they were doing and what was going on. There are parents who allow this behaviour, probably not seeing the dangers out there in respect of who children are talking to and what they are getting up to for a significant amount of time.
Karen Bradley
My hon. Friend is absolutely right. That is so important. I co-chair, along with the Minister for Children and Families and Baroness Shields, the UK Council for Child Internet Safety—UKCCIS. It is a very important forum, bringing together internet service providers, education providers and people who have the ability to influence young people and parents. Parents must understand that they need to turn their filters on; it may be a pain to have to occasionally put in a password when looking at a website, but those filters will protect their children.
We are also consulting on age verification for pornography. When I was growing up, it was not possible to access the kind of images that children can download on their smartphones and look at in playgrounds up and down the country. It simply was not available. Again, we have to be clear: if a child cannot purchase that material offline in a corner shop, newsagent or specialist retailer, they should not be able to access it online. We need to make sure that we have those safeguards in place.
We need to get rid of any suggestion that this is too difficult or too hard, and say to parents that they need to understand what the dangers are and to make sure that filters are in place so that their children are protected online. Schools have a role to play in that, too, as we all do. I would be happy to write to all Committee members on the work that we are doing, which they can share with their constituents and local headteachers. I will be delighted if we can get more information to headteachers and others about the work that is being done to protect children online.
New clause 18 deals with digital crime training and education, which is linked to the point that my hon. Friend the Member for Eastleigh made. I support the underlying objective, but I do not think that we need to legislate to require police forces to provide such training. Since the introduction of the College of Policing’s cybercrime training course in February 2014, more than 150,000 modules have been completed across all forces, and in September last year the College of Policing launched the second phase of its mainstream cybercrime training course for police forces. This is a modular course consisting of a series of self-taught and interactive modules that are accessible to all police officers and staff, which provides an introduction to how to recognise and investigate cybercrimes.
We need to get rid of the barriers and obstacles that make people think that they cannot investigate a crime because it happened online. They absolutely can; it is the same type of crime. It is money being stolen, it is harassment, it is stalking or it is grooming. These are all crimes. The fact that they happen online does not change the nature of the crime.
Additionally, more than 3,900 National Crime Agency officers have completed digital awareness training as part of equipping the next generation of highly-skilled digital detectives. The national policing lead for digital investigation and intelligence is co-ordinating a programme of activities to equip forces with the capabilities and technology to effectively police in a digital age and protect victims of digital crime. We need to repeat this point: it is not for the Home Office to mandate this training. Whitehall does not know best here. Delivering that training is something that the police are rightly leading on.
In conclusion, the Government recognise that tackling digital crime is one of the most important challenges that the police face today, and we continue to support and invest in the police to ensure that they have the resources and the capability to respond effectively. Having answered the points that the hon. Member for Dwyfor Meirionnydd made, I hope that I have persuaded her not to press her new clauses.
Liz Saville Roberts
As I stated earlier, this is a probing new clause. The very purpose of tabling it was to hear the response. I am very pleased to hear that the view on cybercrime is that “crime is crime”. The Minister very effectively described it as “digital paint” being thrown at her constituents.
I believe, in line with those who advise us, such as Stephen Kavanagh, that there is room to look at this matter in a slightly different way. Training is a significant consideration. It has been brought to my attention that, although there are some powerful, centralised initiatives, the front-line work of all police personnel is significant, because there have been cases like the one that I mentioned, in which somebody in a call centre, taking the first contact call, did not interpret the harassment as something that should be taken as a crime. We should be very alert to the means by which we can strengthen the response.
James Berry
Does the hon. Lady agree that this is not just an issue for the Government to tackle, but an issue for internet companies? Whereas online banking fraud has been quite effectively tackled by the banks, companies such as Google, Twitter and Facebook need to do much more. They are some of the richest companies in the world, with some of the best technical brains in the world and if this was an advertising opportunity by which they could make money, they would be up it like a rat up a drainpipe. This is about protecting users and the public, and they need to do a lot more. It is not just an area for Governments; it is an area for the people who are making money out of these services.
Liz Saville Roberts
I had sat down, but I will stand up again. I agree entirely. What is very interesting is how we define, as a society, the behaviour that parents should be addressing in their children and how children should be taught to behave online. What behaviour is socially unacceptable, what is the behaviour in which the police should be involved, and what behaviour really is a threat to safety?
Karen Bradley
Before the hon. Lady sits down, I would like to give a quick response to the point about internet companies. I want to put it on the record that many internet companies are working very hard with the Government to deal with this issue. There is always more that can be done, but Google, for example, works with the Government and the Internet Watch Foundation to make sure that we close down inappropriate or illegal content as soon as it is identified—if not before it is identified, in fact. I pay tribute to them for the work they have done with the Government on that.
Liz Saville Roberts
I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 19
Modern technology: specialist digital unit (child abuse)
“(1) The chief officer of each police force in England and Wales must ensure that within their force there is a unit that specialises in analysing and investigating allegations of online offences against children and young people.
(2) The chief officer must ensure that such a unit has access to sufficient digital forensic science resource to enable it to perform this function effectively and efficiently.”—(Liz Saville Roberts.)
Brought up, and read the First time.
The Chair
With this it will be convenient to discuss new clause 20—Child sexual abuse: specialist unit—
“(1) The chief officer of each police force in England and Wales must ensure that within their force there is a unit responsible for working with local agencies to coordinate early identification of children at risk of child sexual abuse, including child sexual exploitation, and early identification of children and adults at risk of sexual offending.”
Liz Saville Roberts
Diolch yn fawr iawn. Everyone will know how to say “thank you” in Welsh by the end of the afternoon.
New clauses 19 and 20 relate to offences against children. New clause 19 relates to online offences against children and calls for modern technology specialist digital units for child abuse. Again, these are probing amendments and are pertinent to what we have just been discussing. New clause 19 would ensure that every local police force has a specialist digital child abuse unit with the latest equipment and expertise to analyse, investigate and take action in relation to online offences against children, including children being groomed and forced to commit sexual acts online, and the making and sharing of sexual images and videos involving children.
We have talked about the explosion of online crime, so I will not go through it again, but I echo the concerns that the National Society for the Prevention of Cruelty to Children, the Children’s Society and Barnardo’s raised during oral evidence to the Committee about the lack of capacity and expertise within local police forces to tackle these crimes. Beyond the cases that reach the Child Exploitation and Online Protection Centre threshold, local forces are left with a huge volume of other cases where children are at risk, which they do not have the expertise or capacity to deal with adequately.
Emerging findings from research by the NSPCC show that the scale of this type of offending is far greater than previously thought. The sheer volume of offenders, devices and images relating to online offences against children has left the police swamped and unable to protect children to the best of their ability. In one sense, the increase in recording and reporting is to be welcomed, as these crimes are now being recorded. None the less, they are increasing, which is an issue that we should be addressing.
Recent reports by Her Majesty’s inspectorate of constabulary on the responses of individual police forces to child protection cases have revealed significant delays—in some cases of up to 12 months—in the forensic analysis of the devices of suspected offenders. We are talking about children here. Some of those delays can pose serious risks to the safeguarding of children, leaving offenders free to continue abusing or exploiting other victims, not to mention the impact on the child victim. While the expertise and capacity of high-tech and cybercrime units are crucial, it is child protection and offender management knowledge and skills that are vital to ensuring that children are best protected.
The Prime Minster gave child sexual abuse the status of a “national threat” in the strategic policing requirement, but what assessment has been made of the increased policing capacity and expertise needed to deal with this issue, given the rise of online offences, and what reassurances can the Minister give that those will be made available? What steps are Ministers taking to ensure that police forces are trained and have the necessary technical capacity to investigate such offences using the newest technology available?
New clause 20 is concerned with preventing child sexual exploitation and with the establishment of specialist units for child sexual abuse. It would help to ensure that all police forces had the resource and support that they needed to work with other local agencies to prevent child abuse, including child sexual exploitation. This subject is particularly pertinent to me because I work with North Wales police. Of course, the Macur review, which discusses this area, was published recently. That review was based on the Waterhouse inquiry, one of the recommendations of which was that there should be a children’s commissioner for Wales. How forces operate in respect of these issues is very significant. I am glad to say that my force, North Wales police, has a child sexual exploitation unit.
In the current economic climate, the police and others face a significant challenge in focusing on prevention. By the time incidents of grooming or sexual abuse come to the attention of the police, it is too late. The Government need to send a clear message that the early identification of children at risk, and of adults and children at risk of offending, is vital. Improving identification of children at risk means confronting difficult issues. Around a third of sexual offences are committed by children under the age of 18. That is often called peer-on-peer abuse. Barnardo’s is currently running a cross-party inquiry into how we can improve our responses to such young people, many of whom have themselves been the victims of abuse or trauma. Police and local agencies must have the resources that they need to work together, and in partnership with charities and others, to prevent horrific crimes such as child sexual exploitation. Will the Minister commit to ensuring that that will happen?
Lyn Brown
I support new clauses 19 and 20. New clause 19 would ensure that there was a unit specialising in analysing and investigating allegations of online offences against children within each police force, and new clause 20 would ensure that there was a unit responsible for working with local agencies to co-ordinate early identification of children at risk of sexual abuse. This is important preventive work.
A report by the Children’s Commissioner in November last year showed that only one in eight children who are sexually abused are identified by professionals. I really do not think that that is good enough. Early identification is incredibly important. The National Police Chiefs Council lead for child protection and abuse investigation, Chief Constable Simon Bailey, has said that
“by the time a child reports sexual abuse the damage has been done and we must do more to stop the abuse occurring in the first place.”
I could not agree more.
We need to do better on early identification, and the specialist units provided for in new clause 20 would help towards that end. The provision for a specialist unit within each police force would mean that both the police and the Crown Prosecution Service had a specialist or specialists working exclusively on child sexual exploitation, just as now happens with domestic violence. Many police forces already have specialist units dealing with child sexual exploitation and that is to be welcomed, but it would be good to see this replicated across the country if possible. Making the provision of specialist units statutory will help to give vulnerable children in all areas of the country a much greater chance of having their abuse recognised before it is too late.
The last decade has seen a huge increase in the number of children with access to the internet, particularly using smartphones and tablets. Current data shows that 65% of 12 to 15-year-olds, and 20% of eight to 11-year-olds own their own smartphone. In 2004, Barnardo’s identified 83 children as victims of some kind of online abuse, but today that number is in the thousands. Clearly, the way in which perpetrators of child sexual abuse contact and groom vulnerable children is changing, and those of us who wish to prevent these awful life-damaging crimes must change the way that we work too.
Barnardo’s 2015 report states that
“young people at risk of harm online may not have any previous vulnerabilities that are often associated with being victims of sexual abuse and exploitation”.
As a result, these victims are less likely to be known to the authorities and the police may only identify cases of exploitation when it is really rather too late. Encouragingly, in July 2014, initial outcomes of Operation Notarise showed that 660 people suspected of sharing illegal images of children had been arrested and around 500 children had been safeguarded. I welcome the good work that the police and charities like Barnardo’s are doing to combat online child sexual exploitation, but this is not the time to be complacent. I am very interested in hearing the Minister’s response to the suggestions in these new clauses.
Karen Bradley
I fully understand why the hon. Member for Dwyfor Meirionnydd has tabled these new clauses. I believe that they have been prompted at least in part by concerns about significant digital forensics backlogs in some forces, which were highlighted by the recent Her Majesty’s inspectorate of constabulary national child protection investigations. I thank HMIC for the work that it did. It is very important that we all understand what is happening on the ground and that there is an honest appraisal of the work that local police forces are doing, so that police and crime commissioners and others can take the necessary steps to ensure that those issues are addressed.
It almost does not need saying, but I will say it anyway: we can all agree that child sexual exploitation, whether on or offline, is an abhorrent crime and that the police and other relevant agencies must up their game to effectively respond to such crimes and safeguard vulnerable children. The shadow Minister and others have made reference to last year’s report by the Children’s Commissioner. It is worth setting out the context in which we are operating.
The Children’s Commissioner estimated that there are about 225,000 cases of child abuse a year. Of course, the vast majority of that was intra-familial abuse and, as the hon. Member for Dwyfor Meirionnydd mentioned, peer-on-peer abuse—children-to-children, or young people to children abuse. Child sexual exploitation online is part of the problem, but intra-familial abuse is an enormous part of it. The national policing lead, Simon Bailey, is very clear on the work that needs to be done in schools, with social services and others, working in multi-agency safeguarding hubs, to ensure that children are protected and that we have places for people to go. For example, the Government launched the child sexual abuse whistleblowing helpline, which was one of the recommendations in the Louise Casey and Alexis Jay report on Rotherham. The report said that there needed to be a safe place for professionals to report concerns that child sexual abuse that had been reported had not been dealt with. The NSPCC runs that helpline for the Home Office, and will help to make sure that children can be protected.
Lyn Brown
May I probe the Minister a little on the idea that we do not need specialist units? We now have specialist units within our police forces for domestic violence, which are provided for across the country. They seem to me to have had a massive impact on the safety of women in our communities; they have raised the issue locally and have meant that we are tackling domestic violence so much better than we were. Since those units have had such an impact on domestic violence, may I ask her gently to go away and think about them a bit more, rather than rejecting them out of hand, because they may be the answer to child exploitation and child abuse within our localities.
Karen Bradley
I understand exactly the hon. Lady’s point, but I think we need to differentiate between online and offline exploitation of children. Policing online exploitation is a detailed, technical job that requires great skill and depth. CEOP, which is part of the National Crime Agency, leads on that nationally, with the child abuse image database that is rolled out to all forces, and with their expertise. The Prime Minister committed £10 million to CEOP at the first WePROTECT summit at Downing Street in December 2014; my right hon. Friend the Minister for Policing, Crime and Criminal Justice was there. We have the specialist capability sitting within CEOP to give all local police forces access to data on online grooming and exploitation.
However, dealing with child sexual abuse in a wider context—not necessarily online—has to be part of every police officer’s work: working with the multi-agency safeguarding hub, with social services, with health professionals and others to ensure that we identify the victim. It is not as easy as finding a victim online—although that is not easy either—because these are very hidden crimes. We need to ensure that they are the business of every police officer, that all officers are aware of what is involved, and that we work within the multi-agency safeguarding hub.
Frankly, it is far too often the police who end up leading on this matter. When a crime is committed, the police absolutely have a role to play. But if there is an allegation of abuse within a family context, two big burly coppers turning up at the front door may not be as successful as a social worker or a health professional. We need to get the right professionals and it needs to be an operational local matter; it is not something that we should be mandating nationally. With that in mind, I hope I have persuaded the hon. Member for Dwyfor Meirionnydd to withdraw her new clause.
Liz Saville Roberts
I reiterate the point that the hon. Member for West Ham made: there is a risk, when making something everybody’s responsibility—particularly children and safeguarding—that it becomes nobody’s responsibility. It was felt that the particular focus required for the police to deal with domestic abuse would not have come about without units present in every police force; that prompts similar questions for child sexual exploitation, which is very much in the same area.
I do not intend to press the matter to a Division, but I hope we will be able to discuss it further. We are all aware of incidents such as those in Rotherham—we can all list them—and the ongoing cases within Operation Pallial; we know that we have not solved the problem, in any shape or form.
Karen Bradley
May I make an analogy with mental health, which we were debating earlier? I think the difficulty there was that the police stepped into a void that no other agency was stepping into. We have the opportunity here to have multi-agency and cross-agency working, to really help children. My fear is that, if we mandate the police to be the agency that deals with the problem, it will all be police-driven. I am not sure that that is in the best interest of the victims or that it is the best way to tackle this issue. I think that there has to be a multi-agency response, which is what we are working towards through the work that all multi-agency safeguarding hubs and others are doing.
Liz Saville Roberts
I thank the Minister for her comments, which I appreciate, but none the less it strikes me that in my own area North Wales police, evidently as a result of the Waterhouse inquiry and Operation Pallial, which is, of course, ongoing, felt it needed a child sexual exploitation unit. We know that child sexual abuse is not restricted to certain areas of the country. Yes, many cases—the majority of cases, possibly—are intra-familial and we have talked about peer-on-peer, but if it was felt to be significant and necessary in north Wales, and wherever the other units are, I feel strongly that it is necessary throughout all police forces. I ask the Minister to consider this again on Report. I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 21
“Offence of abduction of a vulnerable child aged 16 or 17
‘(1) A person shall be guilty of an offence if, knowingly and without lawful authority or reasonable excuse, he—
(a) takes a child to whom this section applies away from the responsible person; or
(b) keeps such a child away from the responsible person; or
(c) induces, assists or incites such a child to run away or stay away from the responsible person or from a child’s place of residence;
(2) This section applies in relation to a child who is—
(a) a child in need as defined in Section 17 of the Children Act 1989;
(b) a child looked after under Section 20 of the Children Act 1989;
(c) a child housed alone under part 7 of the Housing Act 1996;
(d) a child who is suffering or is likely to suffer significant harm subject to Section 47 1(b) of the Children Act 1989.
(3) In this section “The responsible person” is—
(a) a person with a parental responsibility as defined in the Children Act 1989; or
(b) a person who for the time being has care of a vulnerable child aged 16 and 17 by virtue of the care order, the emergency protection order, or section 46, as the case may be; or
(c) any other person as defined in regulations for the purposes of this section.
(4) A person guilty of an offence under this section shall be liable—
(a) on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum or to both such imprisonment and fine; or
(b) on conviction on indictment, to imprisonment for a term not exceeding seven years.
(5) No prosecution for an offence above shall be instituted except by or with the consent of the Director of Public Prosecutions.”—(Liz Saville Roberts.)
Brought up, and read the First time.
Liz Saville Roberts
I beg to move, That the clause be read a Second time.
Diolch yn fawr iawn eto byth. You may be glad to hear that this is the last time you will be hearing my voice on another aspect of children’s safeguarding in relation to abduction. Again, I shall not be pushing new clause 21 to a Division. This probing measure concerning child abduction warning notices, or CAWNs, would ensure that police can protect vulnerable 16 and 17 year- olds by the same method they use to protect younger children.
Child abduction warning notices are used by the police to disrupt inappropriate relationships between children and people who seek to groom them. We mentioned earlier that children are maturing sexually earlier, but not emotionally. There are, of course, people who are very vulnerable although they have reached the age of 16 or 17. These notices are civil orders stemming from the Child Abduction Act 1984. In addition to their use with under-16s, they can currently be used to protect very limited groups of vulnerable 16 and 17 year- olds—those children who have been formally taken into care under section 31 of the Children Act 1989, those subject to an emergency protection order and those in police protection. This, as you can imagine, accounts for a very small number of vulnerable 16 and 17 year-olds. Latest statistics for England show that just 190 16 and 17 year-olds were taken into care under section 31 last year. This left a further 4,320 young people of that age who became looked-after in the same year who would not have the same protections if they were at risk of sexual exploitation.
This is particularly concerning when reported sexual offences are on the rise. In Wales alone there was an increase from 1,545 incidents in 2013-14 to 1,903 in 2014-15. Anything we can do to prevent these offences, including using child abduction warning notices, is vital, as I am sure we would all agree. Professionals working with vulnerable young people and charities such as the Children’s Society and Barnardo’s have consistently argued that CAWNs should be available for police to use in the protection of all vulnerable 16 and 17-year olds. Will the Minister therefore consider closing this loophole in the law?
Lyn Brown
I do not want to repeat everything the hon. Lady has said, but I agree with much of it. Child abduction warning notices can only currently be issued with regard to children under the age of 16, or to 16 and 17 year-olds formally taken into social care under a section 31 notice. We believe that, when it comes to sexual exploitation, this is simply too narrow a definition of a child and that there are very vulnerable 16 and 17 year-olds who could be protected by a child abduction warning notice. The most recent annual statistics available show that only 190 children aged between 16 and 17 were taken into care by their local authorities under a section 31 notice and would thus be able to be protected by a child abduction warning notice. However, a further 4,320 young people of that age are looked after by their local authorities and, as the law currently stands, they are not able to receive that form of protection. The Children’s Society report, “Old enough to know better?”, calculated that the number of 16 and 17-year-olds who live outside the family and are vulnerable to sexual exploitation is actually as high as 7,200. Whatever the exact number, there is clearly a substantial gap between the number of vulnerable 16 and 17-year-old children and the number eligible to be protected by a child abduction warning notice.
Karen Bradley
As with other amendments that the hon. Member for Dwyfor Meirionnydd has tabled, I understand and have great sympathy for the intention behind the new clause, but there are problems, as I hope she and the shadow Minister would acknowledge. Sixteen and 17-year-olds are adults. They are lawfully able to get married. They are generally deemed capable of living independently of their parents and are otherwise able to make decisions affecting their way of life, not least in sexual matters. Extending the offence of abducting a child who is capable of exercising his or her own free will could therefore raise difficult issues. We therefore need to think very carefully about and debate this matter. I would be delighted to meet the hon. Member for Dwyfor Meirionnydd and the shadow Minister to discuss it, and I have talked to the Children’s Society about it.
We have a very difficult balance to strike here. We discussed this issue—and will be discussing it shortly—in connection with the coercive control offence when we debated the Serious Crime Bill last year. The difficulties we have—of recognising and ensuring that we respect the rights of somebody who is legally able to leave home and legally able to engage in sexual intercourse, while recognising their need for protection and their vulnerabilities —are considerable, and there is a very fine line. The fact is that there are many 21 and 22-year-olds who are incredibly vulnerable people. It is about the nuance and where we draw the line on these matters.
Lyn Brown
I appreciate that the Minister is doing her best here and I appreciate having the opportunity to talk about this issue, but my colleague on the team—my hon. Friend the Member for Rotherham (Sarah Champion)—who is not here today is probably the better person to talk to about it. However, I just say to the Minister that the children who have been in and out of care are so vulnerable. They are desperate for love, affection and to be able to put down roots. They are so vulnerable. We really should be able to find a way through the difficulties with the law with regard to 16 and 17-year-olds to provide protection for this small number of very vulnerable young people.
Karen Bradley
I understand the hon. Lady’s point. I am working closely with my colleagues in the Department for Education to ensure that children in care have special treatment. To be clear, children in care do get different treatment from those who are otherwise vulnerable.
I will give an example, which I raised with the Children’s Society when it gave evidence, of where that could create problems. In an honour-based violence situation, a young person may have chosen to leave home because they fear what might happen to them there. I have heard horrendous examples of 16 and 17-year-old girls who left home and were forced to go back to their parents because they were vulnerable and that was the best place for them. In some cases, that led to the most horrendous outcomes. We have to be very careful and mindful of the fact that we confer rights on 16 and 17-year-olds over and above the rights that are conferred on 14 and 15-year-olds.
I appreciate fully the hon. Lady’s point about ensuring that children in care have special protections and, as I say, I am working closely with the Department for Education to ensure that we deal with that. I hope that she will recognise that the Government have legislated to introduce new civil orders, sexual risk orders, and slavery and trafficking risk orders, which provide the police with powers to tackle predators of 16 and 17-year-olds. We need to use those orders and civil powers, not make a blanket decision at this stage without having thought very carefully about the consequences.
That is why I would appreciate having a discussion. I understand that the hon. Lady referred to the hon. Member for Rotherham. I would be happy to meet them both to discuss this issue further, but we need to be careful. Before making a blanket decision on a matter such as this, we need to think about all the risks and consequences for all young people, on whom, as I say, at 16 and 17 we confer rights of adulthood in many ways. We need to respect those rights. For that reason, although the hon. Member for Dwyfor Meirionnydd said that she would not press the new clause to a Division, I would be happy to discuss this issue further.
Liz Saville Roberts
I thank the Minister for her full response and I appreciate that she is endeavouring to address this issue. I am particularly concerned that, as we are very much aware, vulnerable 16 and 17-year-olds can be targeted and are more open to abuse because they have reached an age at which some people perceive that it is legal to act so. The 1984 Act gives some precedent for us to look at those groups of people. If three categories of young people are already defined in that Act, are there other categories that we could look at pushing ahead with? However, I appreciate what the Minister said about being cautious about taking a blanket approach and I would very much like to take her up on her offer to meet her and the hon. Member for Rotherham. I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 44
Controlling and coercive behaviour in non intimate or family relationships in relation to a child aged 16 and 17
‘(1) Section 76 of the Serious Crime Act is amended as follows.
(2) After Section 76, insert—
“76a Controlling and coercive behaviour in non intimate or family relationships in relation to a child aged 16 and 17
(1) A person (A) commits an offence if—
(a) A repeatedly or continuously engages in behaviour towards a child (B) aged 16 or 17 that is controlling or coercive,
(b) at the time of the behaviour A and B are not in an intimate or family relationship which each other,
(c) the behaviour has a serious effect on B, and
(d) A knows or ought to know that the behaviour will have a serious effect on B.
(2) A’s behaviour has a ‘serious effect’ on B if—
(a) it causes B to fear, on at least two occasions, that violence will be used against B, or
(b) it causes B serious alarm or distress which has a substantial adverse effect on B’s usual day-to-day activities, or
(c) it inhibits B’s ability to withhold consent to activities proposed by A through A supplying B with drugs or alcohol.
(3) In this section the ‘non intimate or family relationships’ are relationship other than those defined in Section 76.
(4) A person guilty of an offence under this section is liable—
(a) on conviction on indictment, to imprisonment for a term not exceeding five years, or a fine, or both;
(b) on summary conviction, to imprisonment for a term not exceeding 12 months, or a fine, or both.”’—(Carolyn Harris.)
This new clause would make controlling and coercive behaviour towards a 16 or 17 year old a criminal offence.
Brought up, and read the First time.
Carolyn Harris (Swansea East) (Lab)
I beg to move, That the clause be read a Second time.
It is a pleasure to serve under your chairmanship, Mr Howarth. I congratulate the hon. Member for Dwyfor Meirionnydd—I can say it—on the excellent way in which she presented her arguments on the measures tabled in both her name and mine. I support everything that she said.
New clause 44 would make controlling and coercive behaviour towards 16 and 17-year-olds a criminal offence. I cannot accept the argument that 16 and 17-year-olds are that capable of knowing their own minds; there seems to be a contradiction if they are capable of making decisions about their sexual behaviour but are not permitted to vote. That aside, this behaviour—child sexual exploitation—is happening every day in our constituencies and communities and in the homes of many young people. That behaviour takes many forms, and it is our job to ensure that the law is able to address them all.
Through the Serious Crime Act 2015, the Government introduced a new offence of coercive and controlling behaviour. That rightly seeks to prevent vulnerable individuals in intimate and family relationships from suffering abuse. It recognises that domestic abuse is wrong and illegal, and that individuals do not need to prove specific instances of sexual or physical violence. The 2015 Act focuses on habitual arrangements, but there are parallels to be drawn in other contexts. In the case of child sexual exploitation, police often struggle to prove specific instances of sexual or physical violence. Supplementary documents to the Government’s guidance, “Working Together to Safeguard Children”, acknowledged that
“Violence, coercion and intimidation are common, involvement in exploitative relationships being characterised in the main by the child or young person’s limited availability of choice resulting from their social/economic and/or emotional vulnerability.”
However, the current offence of child sexual exploitation is much more narrowly defined in legislation. It mentions power and coercion, but it must go further. In particular, we must recognise the role of drugs and alcohol in coercing a child into sexual activity in a private residence. Will the Minister commit to reviewing the offence in the 2015 Act, and will she consider what more can be done to ensure that those who are grooming children using drugs and alcohol receive appropriate sentences?
Lyn Brown
I speak in support of my hon. Friend the Member for Swansea East. As the Minister rightly said, children aged 16 and 17 are over the age of consent, but there is no doubt that they can still be victims of child sexual exploitation. Often without financial means and the life experience necessary for complete independence, children can be manipulated and pressured into complying with the wishes of those who have power over them. They may find themselves in a situation where they are frightened of saying no to someone, or stressed that if they say no they will lose the financial support and assistance that that person provides them with. However, under current legislation, it is very difficult for the police to prosecute in those situations, as they are required to prove specific instances of sexual or physical violence. The new clause would make it easier to protect that vulnerable group of people from grooming and sexual exploitation.
The Serious Crime Act 2015 introduced a new offence of coercive and controlling behaviour in the home and I welcomed that move, as it rightly seeks to protect those individuals in intimate and family relationships who suffer the agony of domestic abuse. It recognises that domestic abuse is wrong and illegal, and for the first time it established that individuals do not need to prove specific instances of sexual or physical violence in order to demonstrate they have been the victim of the crime of domestic abuse. A partner who manipulates, bullies and emotionally torments is an abuser and the law finally recognises that.
The new clause would extend the provisions on manipulative and controlling behaviour to protect 16 and 17-year-olds in non-habitual arrangements with their abuser. It would make any behaviour that has a serious effect on a child, such as increasing their levels of stress or creating the fear of violence, controlling and coercive. It would, for example, have applied to the girls in Rotherham who were described by the Jay report as fearing the violent tendencies of their abusers, even if the men had not directly and physically attacked them. I would be grateful if the Minister would seriously consider the new clause.
Jake Berry
I want to speak briefly to the new clause to say that I hope the Minister will listen to the arguments being made. It is a hugely important issue. I pay tribute to the work that she has done on violent and coercive behaviour.
This is not an issue that I was particularly aware of, though I was aware that the Government had taken action. If anyone is a fan of “The Archers”, they will have heard, I am sure, the sensitive and good way that the issue is being covered in a relationship on that programme, which has made huge steps in raising awareness. I have been deeply shocked by this form of abuse, to the point of being unable to listen to a programme that I have listened to for the last 15 years.
I am extremely proud of the Minister and our own Government for all that we have done so far, but I hope that she will listen to Opposition voices and perhaps take this away to review. Protecting 16 and 17-year-olds, in the way that we have already done, is something that we should investigate, even if just for the future.
Karen Bradley
We had this debate when we introduced the coercive control offence in the Serious Crime Bill in 2015. It goes back to the points that we discussed during debate on previous clauses about the need to respect individuals’ right at 16 or 17 to leave home, marry legally and make decisions, and how best to respect that in law. I am a great believer in legislating where there is a true gap in the law—where new legislation is needed because at the moment prosecution cannot be brought.
On the offence of coercive control, my hon. Friend the Member for Rossendale and Darwen mentioned “The Archers”. He may well have spotted me on “Countryfile” on Sunday night, discussing exactly that point. It was very difficult; we knew that there was a problem. When I was talking about the issue at a meeting recently, I met a lady who grabbed me afterwards with tears in her eyes—a well-to-do lady, somebody whom one would perhaps not expect it to have happened to—and said, “That was me 30 years ago. All the police told me was that they had to hope he kicked my door in, because then they could get him for criminal damage.” There was no offence available that the police could use.
That is the point. Is there an offence available, and is it possible to get a prosecution? The answer goes back to the point that we were discussing earlier about digital offences. Where an offence exists, it is not a case of re-legislating or creating new offences; we should ensure that the offence is used. It will be understood by the courts and the legal system, and we need to ensure that the police understand it and use it appropriately. However, where there is no offence and protection cannot be offered, the Government want to take note and listen. I fear that on this issue, there are offences already in place. A suite of powers are available to the police and others. Therefore, although I am happy to discuss the point, I am not persuaded that at this stage, the amendment is the right approach.
The new coercive control offence, which we commenced on 29 December last year, was introduced to address a specific gap in the law and capture patterns of abuse in an intimate partner relationship. Patterns of abuse outside an intimate partner relationship, which the new clause seeks to address, are already captured by harassment, the test for which is partially replicated in the proposal, and stalking offences, which can apply to patterns of abuse directed against 16 and 17-year-olds.
One question that we faced when considering the coercive control offence was how to get evidence. Much of what the hon. Member for Swansea East and the shadow Minister discussed involves gathering evidence. We have seen from stalking offences that it is perfectly possible for the police to gather evidence of persistent or repetitive behaviour to ensure prosecutions, which is what we all want.
The hon. Member for Swansea East mentioned child sexual exploitation. I hope that she has seen that we have recently consulted on the definition of child sexual exploitation, making it clear that the term applies to children under 18 and thus includes 16 and 17-year-olds. As I said, stalking and harassment also apply to 16 and 17-year-olds. The new domestic abuse offence enacted in the Serious Crime Act 2015 means that 16 or 17-year-olds in intimate partner relationships who are coerced or controlled are covered by the new criminal law. Equally, if a 16 or 17-year-old is living with a parent or other family member who seeks to control them in a way that causes them to fear violence or feel alarmed or distressed, the domestic abuse offence offers protection. For the sake of completeness, I should say that if a young person does not live with the family member or parent concerned, existing harassment legislation will offer the same protection.
The hon. Lady discussed gangs and the approaches that they might take in terms of drug trafficking and so on. That is precisely the reason why the Government’s new ending gang violence and exploitation programme, which has replaced our ending gang and youth violence programme, is there.
The point that the hon. Lady makes about vulnerable young people being exploited by gangs, under what is known as the county line phenomenon, is something that we are determined to tackle, but it is possible to tackle it using existing legislation and offences; it does not require a new offence. For example, the Policing and Crime Act 2009 introduced a new civil tool that allows the police or a local authority to apply for an injunction against an individual to prevent gang-related violence and, from 1 June 2015, gang-related drug dealing, which we discussed during the passage of the Serious Crime Act last year.
A wide range of powers are available. I would be very happy to sit down and thrash out whether there really is a gap in the law, or whether it is merely that the existing powers are not being properly used; we need to be clear on that. I hope at this stage that the hon. Lady will withdraw her new clause.
Carolyn Harris
We believe that there is still a gap in the existing harassment legislation that is not covered, as was recently proven in Rotherham. I thank the hon. Lady for her comments and I am delighted that she has offered further conversation on this important matter. I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 45
Prevention of child sexual exploitation and private hire vehicles
“(1) The Local Government (Miscellaneous Provisions) Act 1976 is amended as follows—
(a) after section 47(1) insert—
“(1A) A district council must carry out its functions under this section with a view to preventing child sexual exploitation”.
(b) at end of section 48 (1) insert—
“(c) a district council must carry out its functions under this section with a view to preventing child sexual exploitation”.
(2) Section 7 of the London Cab Order 1934 is amended as follows—
(a) after Section 7(2) insert—
“(2A) Transport for London must carry out its functions under this section with a view to preventing child sexual exploitation”.
(3) Section 7 of the Private Hire Vehicles (London) Act 1998 is amended as follows—
(a) after Section 7(2) insert—
“(3) The licensing authority must carry out its functions under this section with a view to preventing child sexual exploitation”.—(Carolyn Harris.)
This new clause would place local authorities under a duty to consider how they can prevent child sexual exploitation when they issue licences for taxis and private hire vehicles.
Brought up, and read the First time.
Carolyn Harris
I beg to move, That the clause be read a Second time.
Licensing authorities have a duty to protect children from harm. Horrific cases that we have seen on television, in connection with Rotherham, have highlighted the need for this amendment, which could bring us a step closer to making our communities safer for our most vulnerable children. We already place duties on authorities that license premises to sell alcohol to carry out functions with a view to protecting children from harm. This amendment would create similar duties for licensing authorities in relation to taxis and minicabs. We know that taxis and private hire vehicles often feature in cases of child sexual exploitation. Indeed, in February of this year, Mohammed Akram was found guilty of sexual activity with a child under the age of 16, which took place in the back of his cab. He was sentenced to five years in prison.
This is not to say that all drivers are inherently likely to be involved in these crimes. The vast majority of drivers are law-abiding citizens but, along with other night-time economy workers, they have a role to play in helping to keep young people safe. Licensing authorities have a role to play in raising awareness so that drivers can spot the signs of harm and know how to intervene. There have been examples of good practice in Oxford, but we should have good practice across the United Kingdom. We need much more consistency.
Barnardo’s has been working with a range of night-time economy workers across the country to help improve awareness of children at risk. It is a part of the move towards prevention, which we need to see in this area. Will the Government consider introducing new duties on licensing authorities so that communities can be confident that all taxi and minicab drivers are able to spot the signs of abuse, and can help to keep children safe?
Lyn Brown
As my hon. Friend the Member for Swansea East said, the new clause would place local authorities under a duty to consider child protection when they issue licences for drivers of taxis and private hire vehicles. We support it because we think it could lead to important safeguarding measures.
Taxi drivers do a fantastic job up and down the country. I could not happily live my life without them. More than 242,000 licensed vehicles in England provide transport for millions of people every day. Outside of rural areas, interestingly, there is a high satisfaction level—about 68%—with taxi and private hire services. The review of child exploitation in Oxford made it clear that taxi drivers can and do play a very positive role in tackling grooming and child exploitation. The report noted that taxi drivers had driven young girls to the police station when they were worried that the girls were being sexually exploited, and that they were well regarded across the city because of the role that they had played.
However, we have to recognise that in some of the grooming rings exposed in recent years taxi drivers have not played such a positive role. Taxi drivers have been reported as abusing their position of power when they collect young people. The independent inquiry into child sexual exploitation in Rotherham found:
“One of the common threads running through child sexual exploitation across England has been the prominent role of taxi drivers in being directly linked to children who were abused”.
This is, quite clearly, a problem that needs to be tackled. I believe that my hon. Friend’s amendment could pave the way for important safeguarding measures that, frankly, should already be in place. For example, a number of local authorities up and down the country have imposed “conditions of fitness” tests on taxi drivers. These can involve criminal record checks and even live reporting to licensing authorities if a taxi driver commits a criminal offence after they have been granted a licence. Realistically, I do not believe that a licensing authority could carry out its duty to promote the prevention of harm to children, which is what the new clause provides for, without conducting checks on all drivers.
The Department for Transport provides guidelines on how local authorities should assess the criminal records of those who wish to have a licence to drive a private hire vehicle. The guidelines state that authorities
“should take a particularly cautious view of any offences involving violence, and especially sexual attack.”
Those are proportionate and appropriate words. However, because local authorities have discretion to interpret what is meant by a “fit and proper” person to drive a private hire vehicle, not all private hire vehicle drivers outside London are even subject to a criminal record check. We should consider reversing that; I believe that this proposed statutory duty to protect would have precisely that effect.
Other good practice can be considered. In Oxford, taxi drivers have been trained how to respond if they believe that their customers are victims of sexual exploitation. The independent review suggests there is evidence that that training is working. With a statutory duty in place to promote the prevention of child sexual exploitation, we could see such practices replicated across the country. Will the Minister say what measures the Government have put in place to ensure that best practice, like that in Oxford, can be shared across the country?
Karen Bradley
I hope that I am going to cheer everybody up—spoiler alert! I am not going to repeat the arguments made by the hon. Member for Swansea East and the shadow Minister, who have summed up the problem exactly. We have been working closely with the Local Government Association and others to ensure that best practices are spread. I recently enjoyed a taxi ride from Stoke-on-Trent station to my constituency home, in which the taxi driver, without knowing who I was, told me all about the safeguarding training he had been through that day. It was very good to hear him share that knowledge with someone he thought was a complete stranger to it.
We still need to go further. I have been working with the Under-Secretary of State for Transport, my hon. Friend the Member for Harrogate and Knaresborough (Andrew Jones) on the further reforms that are urgently needed on taxi and private hire vehicle licensing arrangements.
Although I absolutely agree with the spirit of the new clause, I suspect—the hon. Member for Swansea East may be shocked to hear this—that more will be required, with respect both to strengthening the Bill’s provisions and to making additional amendments to relevant legislation. I assure her that I am committed to delivering this change; we want to ensure, working with colleagues at the Department of Transport, that those exercising licensing functions have access to the powers and are subject to the appropriate duties that best ensure that our licensing arrangements provide the strongest possible protections. Once we have determined the best way forward, we will carefully consider what legislative vehicle is most appropriate to make any necessary changes. I cannot promise that that will be in this Bill, but it may be. With that assurance, I hope that the hon. Lady will be content to withdraw her new clause.
Carolyn Harris
I am happy to withdraw it. In the words of my hon. Friend the Member for West Ham, “You’ve made my day”. Thank you very much.
Carolyn Harris
I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 46
Child sexual exploitation: assessment of needs for therapeutic support
‘(1) Where police or a local authority have received a disclosure that a child who has been sexually exploited or subject to other forms of child abuse, police or the local authority must make a referral to a named mental health service.
(2) The named mental health service must make necessary arrangements for the child’s treatment or care.
(3) The Secretary of State must by regulations—
(a) define “named mental health service” for the purpose of this section;
(b) specify a minimum level of “necessary arrangements” for the purpose of the section.”
This new clause enables the Future in Mind report’s recommendation that those young people who have been sexually abused or exploited should receive a comprehensive initial assessment, and referral to appropriate services providing evidence-based interventions according to their need.—(Mr Kevan Jones.)
Brought up, and read the First time.
The Chair
With this it will be convenient to discuss new clause 47— Child sexual exploitation: duty to share information—
“The local policing body that maintains a police force shall have a duty to disclose information about children who are victims of sexual exploitation or other forms of abuse to relevant child mental health service commissioners in England and Wales.”
See the explanatory statement for NC46.
Mr Jones
The new clauses are probing. This afternoon we have talked about some of the issues surrounding child exploitation. This is about the support that should be given to the victims of child exploitation. The NSPCC and the Children’s Society have been campaigning very hard to ensure that victims of sexual and physical abuse have access, as a matter of course, to therapeutic services. It is true that these things are costly—we talked about that this morning—but in my experience of talking to organisations that deal with such cases, proper, early intervention, especially with young victims, can save money in the long term, by preventing greater trauma many years later.
New clause 46 says that where police or others receive a disclosure that a child has been sexually exploited or subjected to other forms of child abuse, they should refer them to mental health services. It comes back to the question we asked this morning about whether reference to mental health services is a police function. Yes, it is, in terms of investigating the crime that was committed, but how do we then put the holistic bubble around the victim and support them? We need to ensure that the perpetrator of the abuse is taken to court and dealt with, while making sure that the individual gets the emotional and mental health support that they need. Is that naturally a police issue? Directly, no, it is not, but as the Minister said this morning, it is about how we create a link-up between the police service, the health service and other support services.
I accept that some of the services will be provided not by statutory services but by the voluntary sector. A great organisation in my constituency called the Just for Women Centre works with women who have been victims of domestic violence or abuse. It was very interesting listening to the debate this afternoon about victims coming forward. The spike in Durham has come out of the Savile revelations, but it is not about well-known individuals; the issue in that local group is the number of people who have come forward to report family members who abused them over many years.
There has been huge concentration, nationally, on the more high-profile figures, but in local areas a lot of victims who have never come forward before have now done so and are in need of a huge amount of emotional support. This provision refers to children, but without the support given to many of the women at the Just for Women Centre in Stanley in my constituency, early abuse would have led to other problems. Talking to those individuals, we hear that their problems throughout life stem from the fact that they were abused as youngsters. I commend Durham police for their proactive approach to investigating such cases and ensuring that victims get the proper emotional support.
New clause 47 is about information sharing. It says that local policing bodies shall maintain a duty to disclose information about a child who has been a victim of sexual exploitation to the relevant mental health services. I can hear minds crunching among the civil servants in the room, saying that there are obviously problems about sharing information and so on. I accept that, but if we are to ensure that those young people do not fall through the cracks between our statutory services, some method of getting that information to the services that count needs to be put in place.
I accept that ultimately, victims cannot be forced to accept help, but it must be on offer for them. Many of the women whom I have met who have been supported by the Just for Women Centre in my constituency had years of anguish and torment, the root cause of which was not getting help and assistance when they were young. If we can put in place a system that prevents that for future generations, that early intervention could prevent a lifetime of mental health issues, relationship problems and other things. As I said, these are probing amendments to explore how we can put in place practical support for victims of sexual and physical child abuse.
Lyn Brown
New clauses 46 and 47 act on a recommendation made in a joint report by NHS England and the Department of Health in 2013 called “Future in mind”, which argued that we need to ensure that those who have been sexually abused and/or exploited receive a comprehensive assessment and referral to the services that they need, including specialist mental health services.
In 2014, the NSPCC produced a summary of the academic literature on the relationship between childhood sexual abuse and victims’ later mental health. In each instance, the NSPCC offered a conservative estimate of the known impact of one on the other. Despite that effort not to sensationalise, the numbers are truly shocking. Children who are victims of sexual abuse are twice as likely to suffer from depression as those who are not victims. They are three times as likely to attempt suicide, to self-harm or to suffer from post-traumatic stress disorder at some point in their lifetime and twice as likely to become dependent on alcohol, meaning that their physical health as well as their mental health is endangered.
All the evidence shows that the trauma and emotional confusion that follows childhood sexual abuse leaves victims more likely to suffer from poor mental health. We should, as a matter of course, do all we can to prevent that from happening, or at least to ensure that those mental health issues are made easier for victims to manage. That involves high-quality and appropriate mental health treatment and professional emotional counselling. There is evidence, for example, that abuse-specific therapeutic interventions relieve depressive symptoms among victims.
New clause 46 would require police or local authorities to make a referral whenever they receive a disclosure that a child has been the victim of sexual or other abuse. They would have to make a referral even if they do not believe there is enough evidence or grounds to take further legal action. That is important, because the burden of proof necessary for law enforcement to use its full array of powers is obviously higher than the level of suspicion needed for our full safeguarding and health measures to be utilised.
The NSPCC has found that delays between children suffering from traumatic events and receiving treatment lead to exacerbated mental health issues and we know that victims of sexual abuse have often had difficulty in being believed by the professionals charged with their care and protection. Duties to refer are not new to our legal system when dealing with safeguarding measures. For example, some employers must refer an individual to disclosure and barring services whenever an allegation of a sexual or abusive nature is made. The provisions in the new clause would not charge local authorities or the police to carry out the task of diagnosis, which they are not trained to do. It would be a precautionary measure that applied to all those about whom they receive a disclosure, not just those they believe to be suffering from a mental or emotional health issue. It is a sensible proposal, in keeping with established safeguarding practice and the assignment of appropriate professional duties.
The proposals are also well thought out. New clause 47 would put a duty on the police to share information with the relevant mental health service commissioner in their area. I believe that that new clause would work with new clause 46 to create a culture of collaboration between law enforcement, health agencies and local government, which is needed if the victims of child sexual exploitation are to be given the care and support that they need.
Karen Bradley
I thank the hon. Member for North Durham for again raising a very important issue. He is absolutely right. We must make sure that vulnerable or traumatised children must never fall through the gaps between services. I would appreciate it if, when we meet, we could discuss the way that that might best be addressed, because I am not convinced that the best way is a mandatory way. For example, some young people who are abused or exploited do not develop mental health problems and I have a nervousness about intervening unnecessarily, which could create unintended harms. We need to make sure that we intervene where we need to and that each child is treated as an individual and has the care that they need; I do not think that it should be mandated.
Mr Kevan Jones
I take the Minister’s point. We cannot force anyone to have treatment, but the offer of some support for individuals would make a real difference.
Karen Bradley
I would really appreciate talking this matter through outside the Committee, and I would like the shadow Minister to attend that meeting as well. There is work being done. The shadow Minister mentioned the “Future in mind” report, which the Department of Health is working on to ensure that an emerging workforce strategy is put in place. Perhaps we can discuss that privately.
The hon. Member for North Durham referred to civil servants getting slightly scared about the idea that personal data should automatically be disclosed to third parties. I appreciate the good intentions, but I do think that that is a dangerous road to be travelling down. We need to have a conversation about how best to manage that.
It is right that we need to make sure that children get support. I have talked about the children I have met who have experienced abuse. They need the right support. At what point do they go into recovery? At what point can they lead a functioning life? It is clear from the work we are doing through the troubled families programme that in the families who have gone through the programme, there are multiple problems—mental health, abuse, domestic abuse and other problems. We need to tackle all of those. I know these are probing amendments and I hope that the hon. Gentleman will allow us to discuss them at length outside this room.
Mr Kevan Jones
I thank the Minister for her reply. Discussing these issues is worth while. I know there is an onus on things somehow being about cash, especially in a time of austerity, but I have to say that, if properly implemented, the new clause would save money in the long term as well as help individuals. Nevertheless, I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 51
Suspension of Licences
“(1) Licensing Act 2003 is amended as follows—
(2) After section 171 insert—
“171A Suspension of Licences
(1) A licensing authority may suspend a premises licence, or a club premises certificate if the holder of the licence or certificate has failed to pay the non-domestic rates due, from one or more previous financial years, to the licensing authority in respect of the premises for which the licence or certificate relates.
(2) A licensing authority may not suspend a premises licence or a club premises certificate using the powers granted by this section if—
(a) the licensing authority is unable to demonstrate that earlier efforts to secure payment of the debt have been made but have failed, or
(b) either—
(i) the licence holder failed to pay the required amount of non-domestic rates at the time it became due because of an administrative error (whether made by the holder, the authority or anyone else), or
(ii) before or at the time the non-domestic rates became due, the holder notified the authority in writing that the holder disputed liability for, or the amount of, the rates.
(3) If a licensing authority suspends a premises licence or club premises certificate under subsection (1), the authority must give the holder of the licence or certificate notice of the grounds on which the licence or certificate has been revoked and specify the day the suspension takes effect.
(4) The date specified in the notice under subsection (3) must be at least 10 working days after the day the authority gives the notice.
(5) The amendments made by this section apply in relation to any outstanding non-domestic rates which are owed to the licensing authority six months after the commencement of this section.””—(Lyn Brown.)
This new clause would enable a licensing authority to suspend a premises licence where a business has wilfully or persistently failed to pay the business rates due to the licensing authority.
Brought up, and read the First time.
The Chair
With this it will be convenient to discuss:
New clause 52—Cap on Licensed Premises—
“(1) Amend the 2003 Licensing Act as follows.
(2) At the end of subsection 3 of section 18 insert—
“(c) have regard to the cumulative impact of granting the licence application given the number of other licensed establishments in the vicinity of the applicant premise.”
This new clause would allow local authorities to reject a licensing application on the grounds that there are already too many licensed premises.
New clause 53—Public health licensing objective—
“(1) The Licensing Act 2003 is amended as follows.
(2) After section 4(d) insert—
“(e) promoting public health.””
This new clause would make promoting public health a statutory objective for licensing authorities.
Lyn Brown
These new clauses have all been tabled to help local authorities to carry out their alcohol licensing function.
New clause 51 would enable a licensing authority to suspend a premises licence where a business had wilfully or persistently failed to pay the business rates due. It has been tabled with the support of the Local Government Association. New clause 52 would allow local authorities to reject a licensing application if they felt there were already enough licensed premises in a particular area. New clause 53 would make promoting public health a statutory objective for licensing authorities.
New clause 51 has been tabled because, as the law stands, local authorities must issue licences to businesses even when they may owe debts running into tens of thousands of pounds. I am told by the LGA that that has become a problem in some localities, such as West Sussex, where local authorities are struggling to collect the business rates to which they are entitled. The new clause would end the problem by allowing local authorities to suspend the licence of an establishment that has persistently failed to pay its business rates. The hope is that the power would rarely be used, as premises would change their behaviour as they would no longer have reason to see their local authority as a soft creditor.
The new clause is by no means an attack on drinking establishments. We recognise the role that they play in our communities as social hubs that are an important part of our cultural heritage. The Opposition want to ensure that we keep as many of our well-run drinking establishments open as possible. We understand that the proposal could be seen as a threat to that, which is why it contains a power for a local authority to revoke a licence that would apply only if it was able to demonstrate first that earlier efforts to secure payment of the debt had been made but failed. That safeguard is included to ensure that the power is used only as a last resort.
Furthermore, the power to revoke a licence would not apply if the business failed to make the payment because of an administrative error on the part of the holder, the authority or anybody else—for example, the business’s bank. Taken together, those safeguards would ensure that the power to revoke licences was used only as a very last resort and would protect well-run local pubs from accidentally having their licence removed because of an administrative error.
The Local Government Association predicts that the safeguards, alongside the Government’s extension of small business rate relief, would mean that we would not see important community pubs closing as a result of the new power. However, the power would enable local authorities to ensure that they do not lose out on important revenue to which they are entitled and on which many of our basic services rely.
New clause 52 would allow local authorities to reject a licensing application if they felt they were saturated with licensed premises in a particular area. The Licensing Act 2003 allows local authorities to reject licensing applications only in a limited and defined set of situations: either where the premises has not demonstrated that it will meet statutory licensing objectives, or where door or cover supervision is not provided for.
Home Office guidance suggests that a local authority can refuse a licence based on
“the potential impact on the promotion of the licensing objectives of a significant number of licensed premises concentrated in one area.”
However, a local authority can do so only if it demonstrates in its licensing statement that the number of licensed premises in its area has already had a negative cumulative impact on its licensing objectives. That is called a cumulative impact policy and means that local authorities have to wait until they can demonstrate a negative impact on the prevention of crime and disorder, public safety, the prevention of public nuisance or the protection of children from harm. That leaves local authorities powerless to act until after the fact, and I just do not think that that is right. I believe that the licensing objectives are incredibly important and I want to give local authorities the power to be proactive to ensure that they are upheld.
For instance, a small town with two large nightclubs could not reject an application for a licence from a third nightclub even if the local authority believed that it would not be appropriate for the town to have yet another nightclub. It is of course important to consider the individual characteristics of the premises concerned, but it is also important to consider the individual characteristics of our towns and cities, which many residents want to see conserved. In effect, local authorities have no power to control the number of licensed premises in any given locality until they can demonstrate that it is having an adverse impact on one of their licensing objectives, by which point it would be rather late.
New clause 52 would allow a local authority to reject a licensing application based on the belief that an area is already saturated with drinking establishments. It would give local authorities a sure footing and a legal foundation to allow them to be proactive in ensuring that their licensing objectives are met, and more power over how their towns and cities look and operate.
New clause 53 would make promoting public health a statutory objective for licensing authorities. I do recognise—honest—the important place that pubs, clubs, bars and restaurants play in our society. Drinking is a social activity, and drinking establishments are essentially social places where people go for conversation, relaxation and pleasure. I understand that in our busy and stressful lives, the socially integrative, egalitarian environments in our favourite locals can be the perfect way to switch off and unwind. For me, a decent beer, a good meal, an engaging book and the company of my four-legged friend is a great joy and a perfect way to spend a weekend afternoon or an evening. I also acknowledge that that can provide significant public health benefits—it certainly does for me—but we must not lose sight of the significant impact that drinking can have on public health.
It is well known that there is a causal relationship between alcohol consumption and a range of health problems, including alcohol dependency, liver diseases, some cancers and cardiovascular diseases. Furthermore, it can lead to unsafe behaviour and thus the spread of sexually transmitted diseases. The World Health Organisation estimates that 5.1% of the global disease burden is due to harmful use of alcohol. New clauses 52 and 53 would enable local authorities to reject licensing applications on the basis that the number of premises in an area was having a negative impact on public health. We cannot ask local authorities to be responsible for public health and then not give them the powers that they say they need to have an impact upon it.
I understand that implementing public health as a licensing objective in Scotland has proved to be somewhat difficult; however, that should not deter us from at least considering it. Alcohol clearly has a major impact on public health, so local authorities should be enabled to consider that impact when undertaking their licensing function. I believe that we have to find a way of successfully implementing what was attempted in Scotland. Local practitioners certainly think so; a recent Local Government Association survey of directors of public health found that nine out of 10 were in favour of adding a public health objective to the Licensing Act 2003, saying that it would help them do their jobs more effectively. Our amendment has the support of the Local Government Association.
Karen Bradley
I thank the shadow Minister for her comments. I too have read the very informative LGA briefing. I ought to declare an interest in that I am not just an avid—and regular—user of licensed premises. I grew up in a licensed premises, and my brother still has a licence and runs the family pub, which has been in the family since 1967. I think we probably have some experience of these things. Perhaps I could deal with the new clauses in the order that I am attracted to them.
I will start with new clause 51. The four licensing objectives that local authorities have are the prevention of crime and disorder, public safety, the prevention of public nuisance, and the protection of children from harm. It is very important that we stick to those when we come to look at the new clause. The hon. Lady will know that there is a provision in the 2003 Act for the licensing authority to suspend a premises licence or club premises certificate if the premises has failed to pay the annual fee. That power is directly linked to the local authority’s need to obtain a fee from premises in order to carry out its functions. If it is not paid it undermines licensing authorities’ ability to operate fully, and it is therefore right that they should have the corresponding power to suspend the licence and thus the legal operation of such premises.
Business rates are a different matter. They must be paid by not just licensed premises but all businesses. There are already enforcement remedies available to local councils for the non-payment of those rates. I am not sure that linking the payment of business rates to the right to hold a licence to sell alcohol is necessarily an appropriate route to take. I am therefore afraid that I cannot commend new clause 51 to the Committee.
New clause 53 seeks to introduce a health-based licensing objective. I want to assure the hon. Lady that the Government have sympathy for the view that considerations of public health should play a greater role in licensing, and we remain interested in the possibility of introducing a health-related licensing objective. However, this is neither the right time nor the legislative vehicle to do so. It may superficially seem straightforward, but licensing decisions must be proportionate and made on a case-by-case basis. To try to establish direct causal links between alcohol-related health harms and particular premises would be very difficult. Without the necessary processes and supporting evidence in place, licensing decisions based on health grounds would be unlikely to stand up to legal challenge.
Lyn Brown
I have an awful lot of sympathy with what the hon. Lady says, especially about this not being the right legislative vehicle. It was an opportunity for us to test the waters.
We did not envisage this new clause being about the health risk of a particular pub, premises or bar, but about the amount in a particular area, or possibly the type of risks in a particular area. Effectively, the new clause would allow local authorities to take that into consideration when making decisions on licences.
Karen Bradley
I understand the hon. Lady’s point. I should make the point that the public health requirement, in the case of two-tier authorities, is on the county council, as it is in my case, but the district council deals with licensing. Licensing decisions are taken on a case-by-case basis, so we would be asking a district or borough council to take a licensing decision on an individual premises on the basis of a public health implication that may or may not be properly founded. I want to assure the hon. Lady that Public Health England is looking at the lessons learned from the evidence-based work that was done in 2014-15. A consultation process would need to follow, but it is looking carefully at that point.
New clause 52 covers the cumulative impact. The hon. Lady linked new clauses 52 and 53, but I do not think we need to do that. I hope that she has read avidly the Government’s modern crime prevention strategy, which was published just last month, because in that we made a commitment to put cumulative impact policies on a statutory footing.
Mr Kevan Jones
It is my understanding that if a local authority draws up a local policy, it can use cumulative impact to refuse further licences in an area.
Karen Bradley
The hon. Gentleman is absolutely right. There are already more than 200 cumulative impact policies in England and Wales and they allow local authorities to control the number or type of licence applications granted in an area where it can be shown that high numbers or densities of licensed premises are having an adverse impact on the licensing objectives. They can also put a levy on such premises. However, the cumulative impact policies currently have no statutory basis and it is unclear whether all local authorities are making best use of the power. That is why we intend to place them on a statutory footing both to maximise their effectiveness and to improve local authorities’ ability to ensure that the right premises for their area are granted licences to sell alcohol and late-night refreshment.
Mr Kevan Jones
I am a bit of an anorak on the Licensing Act 2003 from when we were in power. The Minister makes an important point about putting cumulative impact on a statutory footing. One thing that confuses the public is that while the ability to reduce licences or take action is there—the onus is on the local authority—in many cases they do not use the powers they have got.
Karen Bradley
The hon. Gentleman is absolutely right that local authorities do not necessarily use the powers available to them and this measure will ensure that they understand those powers and use them. I hope that he and the hon. Member for West Ham understand that the change requires proper consultation with those affected. We need to consult the licence trade, the alcohol industry and local authorities. Therefore—I hope that the hon. Lady will forgive me—we need a little time to undertake such consultations. We will do them as quickly as possible. I cannot promise that they will have been completed in time for Report, but suffice it to say that we support the objectives behind new clause 52 and will seek to bring forward proposals of our own as quickly as possible.
Lyn Brown
The Minister has obviously delighted me. I therefore beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Schedule 1
Disciplinary proceedings: former members of MoD Police, British Transport Police and Civil Nuclear Constabulary
“1 The Ministry of Defence Police Act 1987 is amended as follows.
2 (1) Section 3A (regulations relating to disciplinary matters) is amended as follows.
(2) After subsection (1A) insert—
“(1B) Regulations under this section may provide for the procedures that are established by or under regulations made by virtue of subsection (1A) to apply (with or without modifications) in respect of the conduct, efficiency or effectiveness of any person where—
(a) an allegation relating to the conduct, efficiency or effectiveness of the person comes to the attention of the chief constable of the Ministry of Defence Police, the Ministry of Defence Police Committee, the Independent Police Complaints Commission, the Police Investigations and Review Commissioner or the Police Ombudsman for Northern Ireland,
(b) at the time of the alleged misconduct, inefficiency or ineffectiveness the person was a member of the Ministry of Defence Police, and
(c) either—
(i) the person ceases to be a member of the Ministry of Defence Police after the allegation first comes to the attention of a person mentioned in paragraph (a), or
(ii) the person had ceased to be a member of the Ministry of Defence Police before the allegation first came to the attention of a person mentioned in paragraph (a) but the period between the person having ceased to be a member of the Ministry of Defence Police and the allegation first coming to the attention of a person mentioned in paragraph (a) does not exceed the period specified in the regulations.
(1C) Regulations made by virtue of subsection (1B) must provide that disciplinary proceedings which are not the first disciplinary proceedings to be taken against the person in respect of the alleged misconduct, inefficiency or ineffectiveness may be taken only if they are commenced within the period specified in the regulations, which must begin with the date when the person ceased to be a member of the Ministry of Defence Police.”
(3) In subsection (2), for “The regulations” substitute “Regulations under this section”.
3 In section 4 (representation etc at disciplinary proceedings), in subsection (4)—
(a) in the definition of “the officer concerned”, after “member” insert “or, as the case may be, the former member”;
(b) in the definition of “relevant authority”—
(i) after paragraph (a) insert—
(ii) after paragraph (b) insert—
4 In section 4A (appeals against dismissal etc), in subsection (1)(a), after “member” insert “, or former member,”.
5 Regulations made in pursuance of section 3A(1B) of the Ministry of Defence Police Act 1987 (as inserted by paragraph 2)—
(a) may not make provision in relation to a person who ceases to be a member of the Ministry of Defence Police before the coming into force of paragraph 2 of this Schedule;
(b) may make provision in relation to a person who ceases to be a member of the Ministry of Defence Police after the coming into force of paragraph 2 of this Schedule even though the alleged misconduct, inefficiency or ineffectiveness occurred at a time before the coming into force of that paragraph, but only if the alleged misconduct, inefficiency or ineffectiveness is such that, if proved, there could be a finding in relation to the person in disciplinary proceedings that the person would have been dismissed if the person had still been a member of the Ministry of Defence Police.
Railways and Transport Safety Act 2003 (c. 20)
6 The Railways and Transport Safety Act 2003 is amended as follows.
7 In section 36 (police regulations: general), after subsection (1) insert—
“(1A) To the extent that subsection (1) concerns regulations made in pursuance of section 50(3A) of the Police Act 1996, or matters that could be dealt with by such regulations, the reference in subsection (1) to constables or other persons employed in the service of the Police Force includes former constables and other persons formerly employed in the service of the Police Force.”
8 In section 37 (police regulations: special constables), after subsection (1) insert—
“(1ZA) To the extent that subsection (1) concerns regulations made in pursuance of section 51(2B) of the Police Act 1996, or matters that could be dealt with by such regulations, the reference in subsection (1) to special constables of the Police Force includes former special constables of the Police Force.”
9 In section 42 (police regulations by Secretary of State), in subsection (3)—
(a) after “50(3)” insert “or (3A)”;
(b) after “51(2A)” insert “or (2B)”.
10 Regulations made under section 36, 37 or 42 of the Railways and Transport Safety Act 2003 that make provision that applies regulations made in pursuance of section 50(3A) or 51(2B) of the Police Act 1996, or that deals with matters that could be dealt with by such regulations, in relation to former constables, and former special constables, of the British Transport Police Force and other persons formerly employed in the service of the British Transport Police Force—
(a) may not make provision that would not be permitted in relation to former members of a police force and former special constables by section 22(7)(a);
(b) may make provision that would be permitted in relation to former members of a police force and former special constables by section 22(7)(b).
Energy Act 2004 (c. 20)
11 The Energy Act 2004 is amended as follows.
12 In section 58 (government, administration and conditions of service of Civil Nuclear Constabulary), in subsection (1)(a), after “members” insert “or former members”.
13 (1) In Schedule 13 (directions by Secretary of State about Civil Nuclear Constabulary), paragraph 3 (government, administration and conditions of service) is amended as follows.
(2) After sub-paragraph (2) insert—
“(2A) To the extent that sub-paragraph (2) concerns provision that may be made in pursuance of section 50(3A) of the Police Act 1996, the reference in sub-paragraph (1) to members of the Constabulary includes former members.”
14 Provision made by the Civil Nuclear Police Authority that relates to former members of the Civil Nuclear Constabulary and matters which are the subject of regulations made in pursuance of section 50(3A) of the Police Act 1996—
(a) may not be provision that would not be permitted in relation to former members of a police force and former special constables by section 22(7)(a);
(b) may be provision that would be permitted in relation to former members of a police force and former special constables by 22(7)(b).”—(Mike Penning.)
This new Schedule includes amendments relating to the Ministry of Defence Police, the British Transport Police Force and the Civil Nuclear Constabulary which produce an equivalent effect to the amendments at clause 22 of the Bill.
Brought up, read the First and Second time, and added to the Bill.
New Schedule 2
Office for Police Conduct
Part 1
Amendments to Schedule 2 to the Police Reform Act 2002
Introductory
1 Schedule 2 to the Police Reform Act 2002 is amended in accordance with this Part of this Schedule (see also paragraph 54 below for further minor and consequential amendments).
Director General
2 (1) Paragraph 1 (chairman) is amended as follows.
(2) For sub-paragraph (1) substitute—
(1) The Director General holds office in accordance with the terms of his or her appointment.
(1A) A person who holds office as Director General must not be an employee of the Office (but may have been such an employee before appointment as the Director General).”
(3) In sub-paragraph (2) for “chairman of the Commission” substitute “Director General”.
(4) In sub-paragraph (3)—
(a) for “chairman of the Commission” substitute “Director General”;
(b) for “chairman” substitute “Director General”.
(5) In sub-paragraph (4)—
(a) for “chairman of the Commission” substitute “Director General”;
(b) for “chairman” substitute “Director General”.
(6) In sub-paragraph (5) for “chairman” substitute “Director General”.
Appointment etc of members
3 After paragraph 1 insert—
“Appointment of members
1A (1) The non-executive members of the Office are to be appointed by the Secretary of State.
(2) A person who is a non-executive member must not be an employee of the Office (but may have been such an employee before appointment as a non-executive member).
1B (1) The employee members of the Office are to be appointed from the staff of the Office by the non-executive members.
(2) If the non-executive members propose to appoint an employee member, the Director General must recommend a person to the non-executive members for appointment.
(3) The Director General may also recommend a person to the non-executive members for appointment as an employee member without any proposal having been made under sub-paragraph (2).
(4) On a recommendation of a person for appointment under sub-paragraph (2) or (3), the non-executive members may—
(a) appoint the person, or
(b) reject the recommendation.
(5) If the non-executive members reject a recommendation they may require the Director General to recommend another person for appointment (in which case this sub-paragraph applies again and so on until somebody is appointed).”
4 (1) Paragraph 2 (ordinary members of the Commission) is amended as follows.
(2) In sub-paragraph (1) for “an ordinary” substitute “a non-executive”.
(3) Omit sub-paragraph (2).
(4) In sub-paragraph (3) for “an ordinary” substitute “a non-executive”.
(5) In sub-paragraph (4)—
(a) for “an ordinary”, in both places, substitute “a non-executive”;
(b) for “five” substitute “three”.
(6) In sub-paragraph (5) for—
(a) for “An ordinary” substitute “A non-executive”;
(b) for “his office as a member of the Commission” substitute “from being a non-executive member of the Office”.
(7) In sub-paragraph (6)—
(a) for “an ordinary” substitute “a non-executive”;
(b) omit paragraph (b).
(8) Omit sub-paragraph (8).
5 After paragraph 2 insert—
“Terms of appointment etc: employee members
2A (1) A person holds office as an employee member in accordance with the terms of his or her appointment (subject to the provisions of this Schedule).
(2) Those terms may not include arrangements in relation to remuneration.
(3) An appointment as an employee member may be full-time or part-time.
(4) The appointment of an employee member terminates—
(a) if the terms of the member’s appointment provides for it to expire at the end of a period, at the end of that period, and
(b) in any event, when the member ceases to be an employee of the Office.
(5) An employee member may resign by giving written notice to the non-executive members.
(6) The non-executive members may terminate the appointment of an employee member by giving the member written notice if they are satisfied that any of the grounds mentioned in paragraph 2(6)(a) to (g) apply in relation to the employee member.”
6 Omit paragraph 3 (deputy chairmen) (including the italic heading before that paragraph).
7 Omit paragraph 5 (chief executive) (including the italic heading before that paragraph).
Vacancy or incapacity in office of Director General
8 After paragraph 3 insert—
“Director General: vacancy or incapacity
3A (1) This paragraph applies if—
(a) the office of Director General is vacant, or
(b) it appears to the Office that the ability of the Director General to carry out the Director General’s functions is seriously impaired because of ill health (whether mental or physical).
(2) The Office may, with the agreement of the Secretary of State, authorise an employee of the Office to carry out the functions of the Director General during the vacancy or period of ill health.
(3) A person who falls within section 9(3) may not be authorised under this paragraph to carry out the functions of the Director General.
(4) A person who has been sentenced to a term of imprisonment of three months or more may not, at any time in the five years following the day of sentence, be authorised under this paragraph to carry out the functions of the Director General.
(5) Paragraph 1(6) applies for the purposes of sub-paragraph (4).
(6) Authorisation of a person under this paragraph ceases to have effect—
(a) at the end of the vacancy or period of ill health,
(b) on the Office revoking the authorisation for any reason, or
(c) on the Secretary of State withdrawing agreement to the authorisation for any reason.”
Remuneration arrangements
9 (1) Paragraph 4 (remuneration, pensions etc of members) is amended as follows.
(2) In sub-paragraph (1), for the words from “the chairman” to the end substitute “the Director General as the Secretary of State may determine”.
(3) In sub-paragraph (2)—
(a) in paragraph (a), for “chairman, deputy chairman or member of the Commission” substitute “Director General”;
(b) in the words after paragraph (b) for “Commission” substitute “Office”.
(4) After sub-paragraph (2) insert—
(3) The Secretary of State may make remuneration arrangements in relation to non-executive members of the Office.
(4) Remuneration arrangements under sub-paragraph (3)—
(a) may make provision for a salary, allowances and other benefits but not for a pension, and
(b) may include a formula or other mechanism for adjusting one or more of those elements from time to time.
(5) Amounts payable by virtue of sub-paragraph (4) are to be paid by the Office.”
Staff
10 (1) Paragraph 6 (staff) is amended as follows.
(2) For sub-paragraph (1) substitute—
(1) The Office may appoint staff.”
(3) In sub-paragraph (2) for “Commission”, in both places, substitute “Office”.
(4) In sub-paragraph (3)—
(a) for “Commission” substitute “Office”;
(b) after “staffing” insert “(including arrangements in relation to terms and conditions and management of staff)”;
(c) for “it” substitute “the Director General”.
(5) In sub-paragraph (4)—
(a) for “Commission”, in the first place, substitute “Office”;
(b) for “Commission”, in the second place, substitute “Director General”.
(6) After sub-paragraph (4) insert—
(4A) The powers under this paragraph are exercisable only by the Director General acting on behalf of the Office (subject to the power under paragraph 6A(1)).”
(7) In sub-paragraph (5) for “by the Commission of its” substitute “of the”.
Delegation of functions
11 After paragraph 6 of Schedule 2 insert—
“Delegation of functions
6A (1) The Director General may authorise a person within sub-paragraph (2) to exercise on the Director General’s behalf a function of the Director General.
(2) The persons within this sub-paragraph are—
(a) employee members of the Office;
(b) employees of the Office appointed under paragraph 6;
(c) seconded constables within the meaning of paragraph 8.
(3) The reference in sub-paragraph (1) to a function of the Director General is to any function that the Director General has under this Act or any other enactment.
(4) A person (“A”) who is authorised under sub-paragraph (1) to exercise a function may authorise another person within sub-paragraph (2) to exercise that function (but only so far as permitted to do so by the authorisation given to A).
(5) An authorisation under this paragraph may provide for a function to which it relates to be exercisable—
(a) either to its full extent or to the extent specified in the authorisation;
(b) either generally or in cases, circumstances or areas so specified;
(c) either unconditionally or subject to conditions so specified.
(6) Provision under sub-paragraph (5) may (in particular) include provision for restricted persons not to exercise designated functions.
(7) For the purposes of sub-paragraph (6)—
(a) “designated functions” are any functions of the Director General that are designated by the Director General for the purposes of this paragraph (and such functions may in particular be designated by reference to the position or seniority of members of staff);
(b) “restricted persons” are, subject to any determination made under sub-paragraph (8), persons who fall within section 9(3).
(8) The Director General may, in such circumstances as the Director General considers appropriate, determine that persons are not to be treated as restricted persons so far as relating to the exercise of designated functions (whether generally or in respect of particular functions specified in the determination).
(9) The Director General must publish a statement of policy about how the Director General proposes to exercise the powers conferred by sub-paragraphs (7)(a) and (8).
(10) The statement must in particular draw attention to any restrictions on the carrying out of functions imposed by virtue of their designation under sub-paragraph (7)(a) and explain the reasons for imposing them.
(11) The exercise of the powers conferred by sub-paragraphs (7)(a) and (8) is subject to any regulations under section 23(1) of the kind mentioned in section 23(2)(g) (regulations limiting persons who may be appointed to carry out investigations etc).
(12) An authorisation under this paragraph does not prevent the Director General from exercising the function to which the authorisation relates.
(13) Anything done or omitted to be done by or in relation to a person authorised under this paragraph in, or in connection with, the exercise or purported exercise of the function to which the authorisation relates is to be treated for all purposes as done or omitted to be done by or in relation to the Director General.
(14) Sub-paragraph (13) does not apply for the purposes of any criminal proceedings brought in respect of anything done or omitted to be done by the authorised person.”
Protection from personal liability
12 After paragraph 7 insert—
“Liability for acts of the Director General
7A (1) A person holding office as the Director General has no personal liability for an act or omission done by the person in the exercise of the Director General’s functions unless it is shown to have been done otherwise than in good faith.
(2) The Office is liable in respect of unlawful conduct of the Director General in the carrying out, or purported carrying out, of the Director General’s functions in the same way as an employer is liable in respect of any unlawful conduct of employees in the course of their employment.
(3) Accordingly, the Office is to be treated, in the case of any such unlawful conduct which is a tort, as a joint tortfeasor.”
Regional offices
13 For paragraph 9 (power of Commission to set up regional offices) substitute—
9 (1) The Office may set up regional offices in places in England and Wales.
(2) But the power under sub-paragraph (1) is exercisable only by the Director General acting on behalf of the Office (subject to the power in paragraph 6A(1)).
(3) The power under sub-paragraph (1) may be exercised—
(a) only with the consent of the Secretary of State, and
(b) only if it appears to the Director General necessary to do so for the purpose of ensuring that the functions of the Director General, or those of the Office, are carried out efficiently and effectively.”
Proceedings
14 In paragraph 10 (proceedings), after sub-paragraph (1) insert—
(1A) But the arrangements must include provision for—
(a) the quorum for meetings to be met only if a majority of members present are non-executive members of the Office, and
(b) an audit committee of the Office to be established to perform such monitoring, reviewing and other functions as are appropriate.
(1B) The arrangements must secure that the audit committee consists only of non-executive members of the Office.”
Part 2
Minor and Consequential Amendments to the Police Reform Act 2002
15 The Police Reform Act 2002 is amended in accordance with this Part of this Schedule.
16 For the italic heading before section 9, substitute “The Office for Police Conduct”.
17 (1) Section 10 (general functions of the Commission) is amended as follows.
(2) In subsection (1)(a) omit “itself”.
(3) In subsection (1)(e) for “its” substitute “the Director General’s”.
(4) In subsection (1)(f) for “it” substitute “the Director General”.
(5) In subsection (3) for “it” substitute “the Director General”.
(6) In subsection (3A) (as inserted by this Act), for “it” substitute “the Director General”.
(7) In subsection (3B) (as inserted by this Act), for “it” substitute “the Director General”.
(8) In subsection (4), in paragraph (a)—
(a) for “it”, in both places, substitute “the Director General”;
(b) for “its” substitute “the Director General’s”.
(9) In subsection (6)—
(a) for “it” substitute “the Director General”;
(b) for “its” substitute “the Director General’s”.
(10) In subsection (7)—
(a) for “it”, in both places, substitute “the Director General”;
(b) for “its”, in both places, substitute “the Director General’s”.
18 (1) Section 11 (reports to the Secretary of State) is amended as follows.
(2) In subsection (1)—
(a) for “its”, in the first place it occurs, substitute “the Office’s”;
(b) for “Commission shall” substitute “Director General and the Office must jointly”;
(c) for “its”, in the second place it occurs, substitute “their”.
(3) For subsection (2) substitute—
(2) The Secretary of State may also require reports to be made (at any time)—
(a) by the Director General about the carrying out of the Director General’s functions,
(b) by the Office about the carrying out of the Office’s functions, or
(c) jointly by the Director General and the Office about the carrying out of their functions.”
(4) After subsection (2) insert—
(2A) The Director General may, from time to time, make such other reports to the Secretary of State as the Director General considers appropriate for drawing the Secretary of State’s attention to matters which—
(a) have come to the Director General’s notice, and
(b) are matters which the Director General considers should be drawn to the attention of the Secretary of State by reason of their gravity or of other exceptional circumstances.”
(5) In subsection (3)—
(a) for “Commission” substitute “Office”;
(b) for “Commission’s” substitute “Office’s”.
(6) After subsection (3) insert—
(3A) The Director General and the Office may jointly make reports under subsections (2A) and (3).”
(7) In subsection (4)—
(a) for “Commission” substitute “Director General”;
(b) for “it”, in both places, substitute “the Director General”;
(c) for “its” substitute “the Director General’s”.
(8) In subsection (6) for “Commission” substitute “Office”.
(9) After subsection (6) insert—
(6A) The Director General must send a copy of every report under subsection (2A) —
(a) to any local policing body that appears to the Director General to be concerned, and
(b) to the chief officer of police of any police force that appears to the Director General to be concerned.”
(10) In subsection (7) for “Commission”, in both places, substitute “Office”.
(11) In subsection (8)—
(a) after “subsection” insert “(2A) or”;
(b) for “Commission” substitute “Director General or the Office (as the case may be)”.
(12) In subsection (9)—
(a) after “subsection” insert “(2A) or”;
(b) for “Commission” substitute “Director General or the Office (as the case may be)”.
(13) In subsection (10) for “Commission” substitute “Director General”.
(14) In subsection (11)—
(a) for “Commission”, in each place, substitute “Director General”;
(b) for “it” substitute “the Director General”;
(c) for “(3)” substitute “(2A)”.
(15) After subsection (11) insert—
(12) The Office must send a copy of every report made or prepared by it under subsection (3) to such of the persons (in addition to those specified in the preceding subsections) who—
(a) are referred to in the report, or
(b) appear to the Office otherwise to have a particular interest in its contents, as the Office thinks fit.
(13) Where a report under subsection (2A) or (3) is prepared jointly by virtue of subsection (3A), a duty under this section to send a copy of the report to any person is met if either the Director General or the Office sends a copy to that person.”
19 In section 12 (complaints, matters and persons to which Part 2 applies), in subsection (6)(a) for “Commission” substitute “Director General”.
20 (1) Section 13B (power of the Commission to require re-investigation) (as inserted by this Act) is amended as follows.
(2) For “Commission”, in each place (including the heading), substitute “Director General”.
(3) In subsection (1)—
(a) for “it”, in both places, substitute “the Director General”;
(b) in paragraph (b), before “under” insert “(or, in the case of an investigation carried out under paragraph 19 of Schedule 3 by the Director General personally, is otherwise completed by the Director General)”.
(4) In subsection (2) for “it” substitute “the Director General”.
(5) In subsection (3) for “it” substitute “the Director General”.
(6) In subsection (9)—
(a) for “it” substitute “the Director General”;
(b) for “its” substitute “the Director General’s”.
(7) In subsection (10)—
(a) for “it” substitute “the Director General”;
(b) for “its” substitute “the Director General’s”.
21 (1) Section 15 (general duties of local policing bodies, chief officers and inspectors) is amended as follows.
(2) In subsection (3), in the words after paragraph (c) after “Director General” insert “of the Agency”.
(3) In subsection (4)—
(a) for “Commission”, in each place, substitute “Director General”;
(b) for “Commission’s” substitute “Office’s”.
22 (1) Section 16 (payment for assistance with investigations) is amended as follows.
(2) For “Commission”, in each place except as mentioned in sub-paragraph (3), substitute “Director General”.
(3) In subsection (4), for “the Commission”, in the second place where it occurs, substitute “Office”.
(4) In subsection (5)(b), after “Director General” insert “of that Agency”.
23 (1) Section 17 (provision of information to the Commission) is amended as follows.
(2) For “Commission”, in each place (including the heading), substitute “Director General”.
(3) In subsection (2)—
(a) for “it” substitute “the Director General”;
(b) for “its” substitute “the Director General’s”.
24 (1) Section 18 (inspections of police premises on behalf of the Commission) is amended as follows.
(2) For “Commission”, in each place (including the heading and provisions inserted by amendments made by this Act), substitute “Director General”.
(3) In subsection (2)(b), for “its” substitute “the Director General’s”.
25 (1) Section 19 (use of investigatory powers by or on behalf of the Commission) is amended as follows.
(2) In the heading, for “Commission” substitute “Director General”.
(3) In subsection (1), for “Commission’s” substitute “Director General’s”.
26 (1) Section 20 (duty to keep complainant informed) is amended as follows.
(2) For “Commission”, in each place (including provisions inserted by amendments made by this Act), substitute “Director General”.
(3) In subsection (1)(b) for “its” substitute “the Director General’s”.
(4) In subsection (3) for “it”, where it occurs after “as”, substitute “the Director General”.
(5) In subsection (8A) (as inserted by this Act)—
(a) for “its” substitute “their”;
(b) after “submitted”, in the first place it occurs, insert “(or finalised)”;
(c) after “submitted”, in the second place it occurs, insert “(or completed)”.
(6) In subsection (9) for “its” substitute “their”.
27 (1) Section 21 (duty to provide information for other persons) is amended as follows.
(2) For “Commission”, in each place (including provisions inserted by amendments made by this Act), substitute “Director General”.
(3) In subsection (6)(b) for “its” substitute “the Director General’s”.
(4) In subsection (8) for “it”, where it occurs after “as”, substitute “the Director General”.
(5) In subsection (11A) (as inserted by this Act)—
(a) for “its” substitute “their”;
(b) after “submitted”, in the first place it occurs, insert “(or finalised)”;
(c) after “submitted”, in the second place it occurs, insert “(or completed)”.
28 In section 21A (restriction on disclosure of sensitive information) (as inserted by this Act), for “Commission”, in each place, substitute “Director General”.
29 In section 21B (provision of sensitive information to the Commission and certain investigators) (as inserted by this Act), for “Commission”, in each place (including the heading), substitute “Director General”.
30 (1) Section 22 (power of the Commission to issue guidance) is amended as follows.
(2) For “Commission”, in each place (including the heading), substitute “Director General”.
(3) In subsection (3)(c) for “it” substitute “the Director General”.
31 (1) Section 23 (regulations) is amended as follows.
(2) For “Commission”, in each place, substitute “Director General”.
(3) In subsection (2)(o) for “it” substitute “the Director General or the Office”.
32 In section 24 (consultation on regulations) for paragraph (a) substitute—
“(a) the Office;
(aa) the Director General;”.
33 In section 26 (forces maintained otherwise than by local policing bodies), for “Commission”, in each place, substitute “Director General”.
34 In section 26BA (College of Policing), for “Commission”, in both places, substitute “Director General”.
35 (1) Section 26C (the National Crime Agency) is amended as follows.
(2) In subsection (1)—
(a) for “Independent Police Complaints Commission” substitute “Director General”;
(b) before “and other” insert “of the National Crime Agency”.
(3) In subsection (2) for “Independent Police Complaints Commission” substitute “the Office or its Director General”.
(4) In subsection (4) for “Independent Police Complaints Commission”, in both places, substitute “Director General”.
(5) In subsection (5)—
(a) for “Independent Police Complaints Commission” substitute “Director General”;
(b) for “Commission’s”, in both places, substitute “Director General’s”;
(c) for “Commission” substitute “Director General”.
36 (1) Section 26D (labour abuse prevention officers) is amended as follows.
(2) For “Commission”, in each place, substitute “Director General”.
(3) In subsection (4), for “Commission’s”, in both places, substitute “Director General’s”.
37 (1) Section 27 (conduct of the Commission’s staff) is amended as follows.
(2) For “Commission’s”, in each place (including the heading), substitute “Office’s”.
(3) In subsection (4) for “Commission” substitute “Office and the Director General”.
38 Omit section 28 (transitional arrangements in connection with establishing Commission etc).
39 (1) Section 28A (application of Part 2 to old cases) is amended as follows.
(2) For “Commission”, in each place other than in subsection (3) of that section, substitute “Director General”.
(3) In subsection (1), for “it” substitute “the Director General”.
(4) In subsection (4), for “it” substitute “the Director General”.
40 (1) Section 29 (interpretation of Part 2) is amended as follows.
(2) In subsection (1)—
(a) omit the definition of “the Commission”;
(b) after the definition of “death or serious injury matter” insert—
““the Director General” means (unless otherwise specified) the Director General of the Office;”;
(c) after the definition of “local resolution” insert—
““the Office” means the Office for Police Conduct;”.
(3) In subsection (6)—
(a) for “Commission” in each place substitute “Director General”;
(b) omit “itself”.
41 In section 29C (regulations about super-complaints) (as inserted by this Act), in subsection (3) for “Independent Police Complaints Commission”, in both places, substitute “Director General”.
42 (1) Section 29E (power to investigate concerns raised by whistle-blowers) (as inserted by this Act) is amended as follows
(2) For “Commission”, in each place, substitute “Director General”.
(3) In subsection (2) for “it” substitute “the Director General”.
43 (1) Section 29F (Commission’s powers and duties where it decides not to investigate) (as inserted by this Act) is amended as follows.
(2) For “Commission”, in each place, substitute “Director General”.
(3) In the heading—
(a) for “Commission’s” substitute “Director General’s”;
(b) for “where it decides” substitute “on decision”.
44 (1) Section 29G (special provision for “conduct matters”) (as inserted by this Act) is amended as follows.
(2) For “Commission”, in each place, substitute “Director General”.
(3) In subsection (2)—
(a) or “it”, in both places, substitute “the Director General”;
(b) for “its” substitute “the”.
45 (1) Section 29H (Commission’s powers and duties where whistle-blower is deceased) (as inserted by this Act) is amended as follows.
(2) For “Commission”, in each place, substitute “Director General”.
(3) In the heading for “Commission’s” substitute “Director General’s”.
(4) In subsection (1) for “it” substitute “the Director General”.
46 In section 29HA (duty to keep whistle-blowers informed) (as inserted by this Act), in subsection (1)—
(a) for “Commission” substitute “Director General”;
(b) for “it” substitute “the Director General”.
47 In section 29I (protection of anonymity of whistle-blowers) (as inserted by this Act) for “Commission”, in both places, substitute “Director General”.
48 In section 29J (other restrictions on disclosure of information) (as inserted by this Act), for “Commission”, in both places, substitute “Director General”.
49 In section 29K (application of provisions of Part 2) (as inserted by this Act), for “Commission”, in each place, substitute “Director General”.
50 In section 29L (regulation-making powers: consultation) (as inserted by this Act), for “Commission” substitute “Director General”.
51 In section 29M (interpretation) (as inserted by this Act), in subsection (1)—
(a) omit the definition of “the Commission”;
(b) after the definition of “conduct” insert—
““the Director General” means the Director General of the Office for Police Conduct;”.
52 In section 36 (conduct of disciplinary proceedings), in subsection (1)(a) for “Independent Police Complaints Commission” substitute “Director General of the Office for Police Conduct”.
53 In section 105 (powers of Secretary of State to make orders and regulations), in subsection (5) for “Independent Police Complaints Commission” substitute “Director General of the Office for Police Conduct”.
54 (1) Schedule 2 (the Independent Police Complaints Commission) is amended as follows.
(2) For the italic heading before paragraph 1 substitute “Director General”.
(3) For the italic heading before paragraph 2 substitute “Terms of appointment etc: non-executive members”.
(4) In paragraph 7—
(a) for “Commission”, in each place, substitute “Office”;
(b) for “chairman or as a deputy chairman of the Commission” substitute “Director General”;
(c) omit “or as a member of it”.
(5) In paragraph 8—
(a) for “Commission”, in both places, substitute “Office”;
(b) for “Commission’s”, in both places, substitute “Office’s”.
(6) In the heading before paragraph 9 omit “of Commission”.
(7) In paragraph 10—
(a) for “Commission”, in each place, substitute “Office”;
(b) for “Commission’s”, in each place, substitute “Office’s”;
(c) in sub-paragraph (5)(c) omit “by the chief executive or”.
(8) In paragraph 11—
(a) for “Commission”, in each place, substitute “Office”;
(b) in paragraph (a) for “chairman, a deputy chairman” substitute “Director General”;
(c) in paragraph (b) for “chairman” substitute “Director General”.
(9) In the italic heading before paragraph 12, for “Commission’s” substitute “Office’s”.
(10) In paragraph 12—
(a) in the words before paragraph (a), for “Commission” substitute “Office”;
(b) in paragraph (a) for “Commission” substitute “Office”;
(c) in paragraph (b) for “Commission” substitute “Director General”.
(11) In paragraph 13 for “Commission” substitute “Office”.
(12) In paragraph 14—
(a) for “Commission” substitute “Office”;
(b) in paragraph (a), after “it” insert “or the Director General”;
(c) in paragraph (b)—
(i) after “it”, in both places, insert “or the Director General”;
(ii) for “its” substitute “their”.
(13) In the italic heading before paragraph 15, for “Commission” substitute “Office”.
(14) In paragraph 15 for “Commission” substitute “Office”.
(15) In paragraph 16 for “Commission” substitute “Office”.
(16) In paragraph 17 for “Commission”, in each place, substitute “Office”.
(17) In the italic heading before paragraph 18, for “Commission” substitute “Office”.
(18) In paragraph 18 for “Commission”, in both places, substitute “Office”.
55 (1) Schedule 3 is amended as follows.
(2) For “Commission”, in each place where it occurs, substitute “Director General”.
(3) For “Commission’s”, in each place where it occurs, substitute “Director General’s”.
(4) For “it”, in each place where it occurs and is used as a pronoun in place of “the Commission”, substitute “the Director General”.
(5) For “its”, in each place where it occurs and is used to mean “the Commission’s”, substitute “the Director General’s”.
(6) The amendments made by virtue of sub-paragraphs (2) to (5)—
(a) include amendments of provisions of Schedule 3 that are inserted, or otherwise amended, by other provisions of this Act (whether or not those other provisions come into force before or after the coming into force of this paragraph);
(b) do not apply if otherwise provided by another provision of this paragraph.
(7) In paragraph 19 (investigations by the Commission itself)—
(a) in the heading omit “itself”;
(b) in sub-paragraph (1) omit “itself”;
(c) for sub-paragraph (2) substitute—
(2) The Director General must designate both—
(a) a person to take charge of the investigation, and
(b) such members of the Office’s staff as are required by the Director General to assist the person designated to take charge of the investigation.
(2A) The person designated under sub-paragraph (2) to take charge of an investigation must be—
(a) the Director General acting personally, or
(b) another member of the Office’s staff who is authorised to exercise the function of taking charge of the investigation on behalf of the Director General by virtue of paragraph 6A of Schedule 2 (delegation of Director General’s functions).”;
(d) in sub-paragraph (4) for “member of the Commission’s staff” substitute “person”;
(e) in sub-paragraph (5) for “member of the Commission’s staff” substitute “person designated under sub-paragraph (2)”;
(f) in sub-paragraph (6) for “members of the Commission’s staff” substitute “persons”;
(g) in sub-paragraph (6A) for “member of the Commission’s staff” substitute “person designated under sub-paragraph (2) who is”.
(8) In paragraph 19ZH (further provision about things retained under paragraph 19ZG) (as inserted by this Act)—
(a) in sub-paragraph (2) for “Commission’s” substitute “Office’s”;
(b) in sub-paragraph (4)(a) for “Commission’s” substitute “Office’s”.
(9) In paragraph 19A (as substituted by this Act), in sub-paragraph (2)(b) after “investigating” insert “or, in the case of an investigation by a designated person under paragraph 19, the Director General,”.
(10) In paragraph 19F (interview of persons serving with police etc during certain investigations), in sub-paragraph (1)(b) for “the Commission itself” substitute “a person designated under paragraph 19 (investigations by Director General)”.
(11) In paragraph 20 (restrictions on proceedings pending conclusion of investigation), in sub-paragraph (1)(b) at the end insert “or, where under paragraph 19 the Director General has personally carried out the investigation, a report has been completed by the Director General”.
(12) In paragraph 20A (as substituted by this Act)—
(a) in sub-paragraph (1)(a) after “investigating” insert “or, in the case of an investigation by a designated person under paragraph 19, the Director General,”;
(b) in sub-paragraph (3) after “and” insert “(where the person investigating is not also the Director General carrying out an investigation under paragraph 19 personally)”;
(c) in sub-paragraph (4)(b) after “investigation” insert “or, where the investigation is carried out under paragraph 19 by the Director General personally, finalise one,”.
(13) In paragraph 21A (procedure where conduct matter is revealed during investigation of DSI matter)—
(a) in sub-paragraph (1), omit “or designated under paragraph 19”;
(b) after sub-paragraph (2A) (as inserted by this Act), insert—
(2B) If during the course of an investigation of a DSI matter being carried out by a person designated under paragraph 19 the Director General determines that there is an indication that a person serving with the police (“the person whose conduct is in question”) may have—
(a) committed a criminal offence, or
(b) behaved in a manner which would justify the bringing of disciplinary proceedings,
the Director General must proceed under sub-paragraph (2C).
(2C) The Director General must—
(a) prepare a record of the determination,
(b) notify the appropriate authority in relation to the DSI matter and (if different) the appropriate authority in relation to the person whose conduct is in question of the determination, and
(c) send to it (or each of them) a copy of the record of the determination prepared under paragraph (a).”;
(c) in sub-paragraph (5), after paragraph (a) insert—
(aa) is notified of a determination by the Director General under sub-paragraph (2C),”.
(14) In paragraph 22 (final reports on investigations: complaints, conduct matters and certain DSI matters)—
(a) for sub-paragraph (5) substitute—
(5) A person designated under paragraph 19 as the person in charge of an investigation must—
(a) submit a report on the investigation to the Director General, or
(b) where the person in charge of the investigation is the Director General acting personally, complete a report on the investigation.”;
(b) in sub-paragraph (6) after “submitting” insert “or, in the case of an investigation under paragraph 19 by the Director General personally, completing”;
(c) in sub-paragraph (8) after “submitted” insert “or, in the case of an investigation under paragraph 19 by the Director General personally, completed”.
(15) In the italic heading before paragraph 23 (action by the Commission in response to investigation reports), for “response” substitute “relation”.
(16) In paragraph 23—
(a) in sub-paragraph (1)(b) before “under” insert “, or is otherwise completed,”;
(b) in sub-paragraph (1A) (as inserted by this Act), after “submission” insert “or completion”;
(c) in each of the following places, after “receipt of the report” insert “(or on its completion by the Director General)”—
(i) sub-paragraph (2);
(ii) sub-paragraph (5A) (as inserted by this Act);
(iii) sub-paragraph (5F) (as inserted by this Act).
(17) In paragraph 24A (final reports on investigations: other DSI matters)—
(a) after sub-paragraph (2) insert—
(2A) Sub-paragraph (2)(a) does not apply where the person investigating is the Director General carrying out an investigation personally under paragraph 19, but the Director General must complete a report on the investigation.”;
(b) in sub-paragraph (3) for “this paragraph” substitute “sub-paragraph (2) or completing one under sub-paragraph (2A)”;
(c) in sub-paragraph (4) after “receipt of the report” insert “(or on its completion by the Director General)”;
(d) in sub-paragraph (5) (as inserted by this Act) after “receipt of the report” insert “(or on its completion by the Director General)”.
(18) In the italic heading before paragraph 24B (action by the Commission in response to an investigation report under paragraph 24A), for “response” substitute “relation”.
(19) In paragraph 28A (recommendations by the Commission)—
(a) in sub-paragraph (1)—
(i) after “received a report” insert “(or otherwise completed one in relation to an investigation carried out under paragraph 19 by the Director General personally)”;
(ii) in paragraph (b) for “Commission itself” substitute “or on behalf of the Director General”;
(iii) in paragraph (c) after “24A(2)” insert “or (2A)”;
(b) in sub-paragraph (4)(a) after “receipt” insert “or completion”.
(20) In paragraph 28B (response to recommendation), in sub-paragraph (12) (as inserted by this Act) after “received a report on” insert “(or otherwise completed one on in relation to an investigation carried out under paragraph 19 by the Director General personally)”.
56 (1) Schedule 3 is further amended as follows (but these amendments apply only if this Schedule comes into force before the coming into force of Schedule 4 to this Act).
(2) In paragraph 19B (assessment of seriousness of conduct under investigation), in sub-paragraph (1) after “investigating” insert “or, in the case of an investigation by a designated person under paragraph 19, the Director General,”.
(3) In paragraph 20A (accelerated procedure in special cases)—
(a) in sub-paragraph (1)—
(i) for “his” substitute “an”;
(ii) after “conduct matter” insert “or, in the case of an investigation by a designated person under paragraph 19, the Director General,”;
(iii) for “he” substitute “the person investigating”.
(b) in sub-paragraph (3) for “his belief” substitute “the belief referred to in sub-paragraph (1)”.
(4) In paragraph 23 (action by the Commission in response to an investigation report), in sub-paragraph (6) after “receipt of the report” insert “(or on its completion by the Director General)”.
57 (1) Schedule 3A (whistle-blowing investigations: procedure) (as inserted by this Act) is amended as follows.
(2) For “Commission”, in each place, substitute “Director General”.
(3) In paragraph 1(1) omit “itself”.
(4) In paragraph 4(2)—
(a) for “it”, where it occurs in the first place, substitute “the Director General”;
(b) for “its” substitute “the”.
Part 3
Other Minor and consequential amendments
Superannuation Act 1972 (c. 11)
58 In Schedule 1 to the Superannuation Act 1972—
(a) in the list of entries under the heading “Royal Commissions and other Commissions”, omit the entry relating to the Independent Police Complaints Commission;
(b) in the list of entries under the heading “Other Bodies”, insert at the appropriate place—
“The Office for Police Conduct.”;
(c) in the list of entries under the heading “Offices”, omit the entries relating to—
(i) the Chairman of the Independent Police Complaints Commission;
(ii) the Commissioners of the Independent Police Complaints Commission;
(iii) the Deputy Chairman of the Independent Police Complaints Commission.
House of Commons Disqualification Act 1975 (c. 24)
59 In Part 2 of Schedule 1 to the House of Commons Disqualification Act 1975 (bodies of which all members are disqualified), omit the entry relating to the Independent Police Complaints Commission and insert at the appropriate place—
“The Office for Police Conduct.”
Northern Ireland Assembly Disqualification Act 1975 (c. 25)
60 In Part 2 of Schedule 1 to the Northern Ireland Assembly Disqualification Act 1975 (bodies of which all members are disqualified), omit the entry relating to the Independent Police Complaints Commission and insert at the appropriate place—
“The Office for Police Conduct.”.
Police Pensions Act 1976 (c. 35)
61 In section 11 of the Police Pensions Act 1976 (interpretation), in subsection (2A)(ba) for “Independent Police Complaints Commission” substitute “Office for Police Conduct”.
Ministry of Defence Police Act 1987 (c. 4)
62 In section 4 of the Ministry of Defence Police Act 1987 (representation etc at disciplinary proceedings), in subsection (5)(a) for “Independent Police Complaints Commission” substitute “Office for Police Conduct”.
Aviation, Maritime and Security Act 1990 (c. 31)
63 In section 22 of the Aviation, Maritime and Security Act 1990 (power to require harbour authorities to promote searches in harbour areas), in subsection (4)(b)(i) for “Independent Police Complaints Commission” substitute “Director General of the Office for Police Conduct”.
Police Act 1996 (c. 16)
64 (1) The Police Act 1996 is amended as follows.
(2) In the following provisions, for “Independent Police Complaints Commission” substitute “Director General of the Office for Police Conduct”—
(a) section 50(3A)(a) (regulation of police forces) (as inserted by this Act);
(b) section 51(2B)(a) (regulations for special constables) (as inserted by this Act);
(c) section 87(1) (guidance concerning disciplinary proceedings etc) (as amended by this Act).
(3) In the following provisions, for “Independent Police Complaints Commission” substitute “Office for Police Conduct”—
(a) section 84(5) (representation etc at disciplinary and other proceedings);
(b) section 88C(5)(d) (effect of inclusion in police barred list) (as inserted by this Act);
(c) section 88K(3)(d) (effect of inclusion in police advisory list) (as inserted by this Act).
(4) In section 54(2D) (appointment and functions of inspectors of constabulary)—
(a) in paragraph (a)—
(i) for “Independent Police Complaints Commission” substitute “Director General of the Office for Police Conduct (“the Director General”)”;
(ii) for “that Commission” substitute “the Director General”;
(b) in paragraph (b)—
(i) for “that Commission”, in both places, substitute “the Director General”;
(ii) for “its” substitute “his or her”.
Freedom of Information Act 2000 (c. 36)
65 In Part 6 of Schedule 1 to the Freedom of Information Act 2000 (other public bodies and offices: general) omit the entry relating to the Independent Police Complaints Commission and insert at the appropriate place—
“The Office for Police Conduct”.
Fire and Rescue Services Act 2004 (c. 21)
66 In section 4I of the Fire and Rescue Services Act 2004 (as inserted by this Act), in subsection (5)(b) for “Independent Police Complaints Commission” substitute “Director General of the Office for Police Conduct”.
Commissioners for Revenue and Customs Act 2005 (c. 11)
67 (1) The Commissions for Revenue and Customs Act 2005 is amended as follows.
(2) In section 18 (confidentiality), in subsection (2)(g)—
(a) for “Independent Police Complaints Commission” substitute “Director General of the Office for Police Conduct”;
(b) for “its” substitute “the Director General’s”.
(3) In section 28 (complaints and misconduct: England and Wales)—
(a) in subsection (1), for “Independent Police Complaints Commission” substitute “Director General of the Office for Police Conduct (“the Director General”)”;
(b) in subsection (2)—
(i) for “Independent Police Complaints Commission”, in both places, substitute “Director General”;
(ii) for “its” substitute “the Director General’s”;
(c) in subsection (3) for “Independent Police Complaints Commission” substitute “Director General”;
(d) in subsection (4) for “Independent Police Complaints Commission”, in both places, substitute “Director General”.
(4) In section 29 (confidentiality etc), in subsection (3)—
(a) in the words before paragraph (a), for “Independent Police Complaints Commission” substitute “Director General of the Office for Police Conduct”;
(b) for “its” substitute “the Director General’s”;
(c) in paragraph (a), for “Commission” substitute “Director General”;
(d) in paragraph (b), for “Commission” substitute Director General”.
Police and Justice Act 2006 (c. 48)
68 (1) In section 41 of the Police and Justice Act 2006 (immigration and asylum enforcement functions and customs functions: complaints and misconduct)—
(a) in subsection (1) for “Independent Police Complaints Commission” substitute “Director General of the Office for Police Conduct (“the Director General”)”;
(b) in subsection (2A) for “Independent Police Complaints Commission” substitute “Director General”;
(c) in subsection (3) for “Independent Police Complaints Commission” substitute “Director General”;
(d) in subsection (4)(b), for “Independent Police Complaints Commission” substitute “Director General”;
(e) in subsection (5) for “Independent Police Complaints Commission” substitute “Director General”;
(f) in subsection (6) for “Independent Police Complaints Commission”, in both places, substitute “Director General.
(2) In the heading before that section for “Independent Police Complaints Commission” substitute “Director General of the Office for Police Conduct”
Local Democracy, Economic Development and Construction Act 2009 (c. 20)
69 In section 107EE of the Local Democracy, Economic Development and Construction Act 2009 (section 107EA orders: complaints and conduct matters etc) (as inserted by this Act), in subsection (5)(b) for “Independent Police Complaints Commission” substitute “Director General of the Office for Police Conduct”.
Coroners and Justice Act 2009 (c. 25)
70 In section 47 of the Coroners and Justice Act 2009 (meaning of “interested person”)—
(a) in subsection (2)(k) for “Independent Police Complaints Commission” substitute “Director General of the Office for Police Conduct”;
(b) in subsection (5) for “Independent Police Complaints Commission” substitute “Director General of the Office for Police Conduct”.
Equality Act 2010 (c. 15)
71 In Part 1 of Schedule 19 to the Equality Act 2010 (public authorities: general), under the heading “Police” omit the entry relating to the Independent Police Complaints Commission and insert at the appropriate place—
“The Office for Police Conduct”.
Police Reform and Social Responsibility Act 2011 (c. 13)
72 (1) The Police Reform and Social Responsibility Act 2011 is amended as follows.
(2) In section 65 (disqualification from election or holding office as police and crime commissioner: police grounds), for “Independent Police Complaints Commission” substitute “Office for Police Conduct”.
(3) In Schedule 7 (regulations about complaints and conduct matters), for “Independent Police Complaints Commission”, in each place, substitute “Director General of the Office for Police Conduct.”—(Mike Penning.)
This new Schedule contains amendments to the Police Reform Act 2002 and other enactments in connection with the re-naming of the Independent Police Complaints Commission as the Office for Police Conduct and the creation of the new position of Director General.
Brought up, read the First and Second time, and added to the Bill.
Clauses 108 and 109 ordered to stand part of the Bill.
Clause 110
Extent
Amendments made: 149, in clause 110, page 109, line 23, leave out “paragraph” and insert “paragraphs 15E and”.
This amendment and amendment 150 provide for the consequential amendment to the Freedom of Information Act 2000 in amendment 108 to extend to the whole of the United Kingdom, reflecting the geographical extent of that Act.
Amendment 150, in clause 110, page 109, line 23, leave out “that paragraph” and insert “those paragraphs”.
See the explanatory statement for amendment 149.
Amendment 216, in clause 110, page 109, line 24, at end insert—
“() section (Combined authority mayors: exercise of fire and rescue functions)(11);”.
This amendment provides for the amendment to Schedule 1 to the Public Service Pensions Act 2013 in NC22 to extend to the whole of the United Kingdom, reflecting the geographical extent of that provision.
Amendment 154, in clause 110, page 109, line 28, at end insert—
“( ) section 22(8), so far as relating to paragraphs 1 to 5 of Schedule (Disciplinary proceedings: former members of MoD Police, British Transport Police and Civil Nuclear Constabulary), and those paragraphs;”.
This amendment is consequential on NS1.
Amendment 217, in clause 110, page 109, line 28, at end insert—
“( ) section (References to England and Wales in connection with IPCC functions)(2) and (3);”.
This amendment is consequential on NC23.
Amendment 218, in clause 110, page 109, line 39, after “sections” insert “62(2) to (5),”.
This amendment, together with amendment 219, provides expressly for the procedure relating to the exercise of the regulation-making power in clause 62(3)(f) to form part of the law of the United Kingdom. The regulation-making power may be used to add to the list of persons who are law enforcement officers for the purposes of Chapter 4 of Part 4 and who may therefore exercise the maritime enforcement powers in hot pursuit by virtue of clause 64 (which also extends to the United Kingdom).
Amendment 219, in clause 110, page 109, line 39, leave out from “73” to end of line 40.
Please see the explanatory statement to amendment 218.
Amendment 220, in clause 110, page 109, line 40, at end insert—
“( ) sections (Application of maritime enforcement powers in connection with Scottish offences: general)(2) to (7), (Exercise of maritime enforcement powers in hot pursuit in connection with Scottish offences) to (Maritime enforcement powers in connection with Scottish offences: other supplementary provision) and (Maritime enforcement powers in connection with Scottish offences: interpretation);”.
This amendment, together with amendment 224, set out the extent of NC29 to NC39.
Amendment 151, in clause 110, page 110, line 3, leave out “and 13” and insert “, 12E to 12G, 12L, 12N, 12AE, 12AH, 12AL to 12AS, 14A to 14D, 15D and 17C”.
This amendment provides for certain of the consequential amendments in amendments 106 to 109 to extend to England and Wales and Scotland, reflecting the geographical extent of the Acts they amend.
Amendment 221, in clause 110, page 110, line 5, at end insert—
“() section (Combined authority mayors: exercise of fire and rescue functions)(5) and (8);”.
This amendment provides for the amendments to section 26 of the Fire Services Act 1947 and section 34 of the Fire and Rescue Services Act 2004 in NC22 to extend to Great Britain, reflecting the geographical extent of those provisions.
Amendment 152, in clause 110, page 110, line 7, leave out “and 104” and insert “, 104 and 114”.
This amendment provides for the consequential amendment to the Equality Act 2010 in paragraph 114 of Schedule 2 to extend to England and Wales and Scotland, reflecting the geographical extent of that Act.
Amendment 153, in clause 110, page 110, line 7, at end insert—
“( ) section22(8), so far as relating to paragraphs 6 to 14 of Schedule (Disciplinary proceedings: former members of MoD Police, British Transport Police and Civil Nuclear Constabulary), and those paragraphs;”.
This amendment is consequential on the new Schedule NS1.
Amendment 222, in clause 110, page 110, line 7, at end insert—
“() section (Office for Police Conduct)(9), so far as relating to paragraphs 61 and 71 of Schedule (Office for Police Conduct), and those paragraphs;”.
This amendment provides for specified amendments in Part 3 of NS2 to have the same extent as the provisions amended.
Amendment 223, in clause 110, page 110, line 15, at end insert—
‘( ) Section (Office for Police Conduct)(9), so far as relating to paragraphs 58, 59, 60, 62, 63, 65, 67 and 68 of Schedule (Office for Police Conduct), and those paragraphs, extend to England and Wales, Scotland and Northern Ireland.”.
This amendment provides for specified amendments in Part 3 of NS2 to have the same extent as the provisions amended.
Amendment 226, in clause 110, page 110, line 17, after “paragraphs,” insert
“and sections (Offence of breach of pre-charge bail conditions relating to travel) and (Offence of breach of pre-charge bail conditions relating to travel: interpretation)”.
This amendment provides for NC41 and NC42 to extend to England and Wales and Northern Ireland.
Amendment 224, in clause 110, page 110, line 19, leave out “extends” and insert
“and (Application of maritime enforcement powers in connection with Scottish offences: general)(1) and (8), (Restriction on exercise of maritime enforcement powers in connection with Scottish offences) and (Maritime enforcement powers in connection with Scottish offences: obstruction etc) extend”.—(Mike Penning.)
Please see the explanatory statement for amendment 220.
Clause 110, as amended, ordered to stand part of the Bill.
Clause 111
Commencement
Amendment made: 225, in clause 111, page 110, line 41, at end insert—
‘( ) Before making regulations appointing a day for the coming into force of any provision of sections (Application of maritime enforcement powers in connection with Scottish offences: general) to (Maritime enforcement powers in connection with Scottish offences: interpretation) the Secretary of State must consult the Scottish Ministers.”. —(Mike Penning.)
This amendment provides that the Secretary of State must consult the Scottish Ministers before bringing NC29 to NC39 into force.
Clause 111, as amended, ordered to stand part of the Bill.
Clause 112 ordered to stand part of the Bill.
Mike Penning
On a point of order, Mr Howarth. As is customary as we come to the conclusion of the Committee stage, we as joint Ministers will put some votes of thanks together, particularly to you, Mr Howarth, and to your co-chair, Mr Nuttall. Both of you have been very pragmatic in expediting the Bill.
I also pay tribute to my hon. Friend the Under-Secretary. She is the new crime Minister, having taken over crime responsibilities from myself, when I took on something called fire.
I turn to the Opposition Front Bench, and I hope that this goes on the record. I think that this is the way that Bills should be scrutinised: agree on what we agree on, disagree on what we disagree on and talk sensibly inside and outside the Committee. We will never agree on everything but we can see that a rather large Bill has gone through Committee stage in probably record time, but with scrutiny in the areas of disagreement. I think that that is right. I pay tribute to the Opposition Front-Bench spokespeople.
My own Whip, my hon. Friend the Member for Dover, has expedited these discussions brilliantly, together with his opposite number, the hon. Member for Manchester, Withington: the Whips Office has done expertly. We have to say that, don’t we?
My Parliamentary Private Secretary, my hon. Friend the Member for Calder Valley is missing—it is outrageous —so I have a trainee PPS, my hon. Friend the Member for Lewes, who has been doing absolutely brilliantly. I do not think she managed to pass me anything at all, which is very good.
The Bill managers have done brilliantly well. If I have the list right, the Home Office, the Ministry of Justice, the Treasury, the Department for Transport, the Department of Health, the Department for Communities and Local Government, the devolved Assemblies and Administrations, and the Wales Office, the Scotland Office and the Northern Ireland Office—I have probably missed one or two off—have all been part of a very large but very important Bill, and been part of the process. Legislation will obviously come forward through the Bill based on that.
Hansard, who hate me, because I never pass any notes to them—thank you very much indeed. The Doorkeepers have also done brilliantly well. Can I particularly thank the people who I give the hardest time to: the lawyers in the Home Office?
Jack Dromey
Further to that point of order, Mr Howarth. First, in terms of the team behind the Bill, can I thank the Clerks and all those who have worked with us throughout the Committee stage, for their professional support at all hours of the day and night, as we discovered on one particular occasion? Secondly, like the Police Minister—
Jack Dromey
Like the Policing and Fire Minister, I thank all those who have supervised our proceedings, including the Doorkeepers and Hansard, all of whom play a very important role.
I want to come straight to the heart of one thing that the Policing and Fire Minister said. The Bill has been professionally debated, with substantial common ground. Where there has not been common ground, we have disagreed not for the sake of it but in order to focus on areas in need of further probing and areas of disagreement. On the former, I welcome some of the commitments given to next-stage dialogue on issues relating to children and mental health. We will take advantage of the offers made. On the latter, there are areas of disagreement, particularly in relation to fire and volunteers. There are also areas where we hope the Government will go further in the next stages, such as pre-trial bail. All these things have been properly rehearsed, recorded and debated in the Committee.
Finally, I thank all Committee members. The debate has been conducted in a good-humoured way throughout. I also particularly thank my fellow shadow Minister, my hon. Friend the Member for West Ham, for her prodigious efforts throughout the Bill’s passage. We look forward to Report.
The Chair
On behalf of all those who must remain silent, I thank Committee members for the tributes that they have paid to everybody involved, including the Doorkeepers, Hansard, the Clerks and those who serve the Ministers. On behalf of my co-Chair and myself, I thank the Front Benchers and every individual Committee member. You would be amazed how often the Chair gets it wrong. Thank you for not noticing. It has been a good-humoured Committee, as has already been observed. Co-operation with the Chair has been excellent. On behalf of my co-Chair and myself, I thank each and every Committee member for that co-operation and good humour.
Bill, as amended, to be reported.
Speaker’s Statement
Thursday 19th May 2016
(9 years, 11 months ago)
Commons ChamberRead Full debate Read Hansard Text Amendment Paper: CWH Notices of Amendments as at 13 April 2016 - (14 Apr 2016)
Mr Speaker
In accordance with Standing Order No. 122D, I must announce the arrangements for the election of the Chair of the Backbench Business Committee for the new Session. If there is more than one candidate, the ballot will be held in Committee Room 16 from 11 am to 1.30 pm on Wednesday 25 May. Nominations must be submitted in the Table Office between 10 am and 5 pm on the day before the ballot, Tuesday 24 May. In accordance with the Standing Order, only Members who do not belong to a party represented in Her Majesty’s Government may be candidates in this election. A briefing note with more details about the election will be made available to Members and published on the intranet.
Bills Presented
Higher Education and Research Bill
Presentation and First Reading (Standing Order No. 57)
Secretary Sajid Javid, supported by the Prime Minister, Mr Chancellor of the Exchequer, Secretary Theresa May, Secretary Nicky Morgan, Secretary Greg Clark, Matthew Hancock and Joseph Johnson, presented a Bill to make provision about higher education and research; and to make provision about alternative payments to students in higher or further education.
Bill read the First time; to be read a Second time tomorrow, and to be printed (Bill 4) with explanatory notes (Bill 4-EN).
Finance Bill
Presentation and resumption of proceedings (Standing Order No. 80B)
Mr Chancellor of the Exchequer, supported by the Prime Minister, Secretary Sajid Javid, Secretary Nicky Morgan, Secretary Greg Clark, Greg Hands, Mr David Gauke, Damian Hinds and Harriett Baldwin, presented a Bill to grant certain duties, to alter other duties, and to amend the law relating to the National Debt and the Public Revenue, and to make further provision in connection with finance.
Bill read the First and Second time without Question put, and stood committed to a Committee of the whole House in respect of clauses 7 to 18, 41 to 44, 65 to 81, 129, 132 to 136 and 144 to 154 and schedules 2, 3, 11 to 14 and 18 to 22, and to a Public Bill Committee in respect of the remainder (Standing Order No. 80B and Order, 11 April); to be printed (Bill 1) with explanatory notes (Bill 1-EN).
Investigatory Powers Bill
Presentation and resumption of proceedings (Standing Order No. 80A)
Secretary Theresa May, supported by the Prime Minister, Secretary Philip Hammond, Secretary Michael Fallon, Secretary David Mundell, Secretary Theresa Villiers, the Attorney General, Robert Buckland and Mr John Hayes, presented a Bill to make provision about the interception of communications, equipment interference and the acquisition and retention of communications data, bulk personal datasets and other information; to make provision about the treatment of material held as a result of such interception, equipment interference or acquisition or retention; to establish the Investigatory Powers Commissioner and other Judicial Commissioners and make provision about them and other oversight arrangements; to make further provision about investigatory powers and national security; to amend sections 3 and 5 of the Intelligence Services Act 1994; and for connected purposes.
Bill read the First and Second time without Question put (Standing Order No. 80A and Order, 15 March); to be considered tomorrow, and to be printed (Bill 2) with explanatory notes (Bill 2-EN).
Policing and Crime Bill
Presentation and resumption of proceedings (Standing Order No. 80A)
Secretary Theresa May, supported by the Prime Minister, Mr Chancellor of the Exchequer, Secretary Michael Gove, Secretary Jeremy Hunt, Secretary Greg Clark, the Attorney General and Mike Penning, presented a Bill to make provision for collaboration between the emergency services; to make provision about the handling of police complaints and other matters relating to police conduct and to make further provision about the Independent Police Complaints Commission; to make provision for super-complaints about policing; to make provision for the investigation of concerns about policing raised by whistle-blowers; to make provision about police discipline; to make provision about police inspection; to make provision about the powers of police civilian staff and police volunteers; to remove the powers of the police to appoint traffic wardens; to enable provision to be made to alter police ranks; to make provision about the Police Federation; to make provision in connection with the replacement of the Association of Chief Police Officers with the National Police Chiefs’ Council; to make provision about the system for bail after arrest but before charge; to make provision to enable greater use of modern technology at police stations; to make other amendments to the Police and Criminal Evidence Act 1984; to amend the powers of the police under the Mental Health Act 1983; to extend the powers of the police in relation to maritime enforcement; to make provision about deputy police and crime commissioners; to make provision to enable changes to the names of police areas; to make provision about the regulation of firearms; to make provision about the licensing of alcohol; to make provision about the implementation and enforcement of financial sanctions; to amend the Police Act 1996 to make further provision about police collaboration; to make provision about the powers of the National Crime Agency; to make provision for requiring arrested persons to provide details of nationality; to make provision for requiring defendants in criminal proceedings to provide details of nationality and other information; to make provision to combat the sexual exploitation of children; and for connected purposes.
Bill read the First and Second time without Question put (Standing Order No. 80A and Order, 7 March); to be further considered tomorrow, and to be printed (Bill 3) with explanatory notes (Bill 3-EN).
Policing and Crime Bill
Tuesday 26th April 2016
(10 years ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Consideration of Bill Amendments as at 13 June 2016 - (13 Jun 2016)
15:46 - The House divided: - Ayes: 200 / Noes: 308 - Question accordingly negatived.
16:03 - The House divided: - Ayes: 209 / Noes: 303 - Question accordingly negatived.
16:19 - The House having divided: - Ayes: 200 / Noes: 307 - Question accordingly negatived.
19:00 - The House divided: - Ayes: 182 / Noes: 306 - Question accordingly negatived.
19:14 - The House divided: - Ayes: 182 / Noes: 305 - Question accordingly negatived.
Lyn Brown (West Ham) (Lab)
I beg to move, That the clause be read a Second time.
Madam Deputy Speaker (Mrs Eleanor Laing)
With this it will be convenient to discuss the following:
Amendment 21, in clause 2, page 3, line 14, at end insert—
‘(8) For the purposes of this Bill, when considering whether a collaboration agreement would improve the effectiveness and efficiency of one or more emergency services that shall include the effectiveness and efficiency with which the emergency service is able to meet its duties under the mental health care concordant.”
This amendment would explicitly enable a collaboration agreement to cover duties placed on emergency services by the mental health care concordant.
Amendment 3, page 6, line 3, leave out clause 6.
This amendment, along with amendment 4, would prevent Police and Crime Commissioners from taking over the functions of Fire and Rescue Authorities.
Amendment 5, page 11, line 1, leave out clause 8.
This amendment would prevent combined authority mayors from combing their fire and rescue service and police force under a single employer.
Amendment 4, page 144, line 2, leave out schedule 1.
This amendment, along with amendment 3, would prevent Police and Crime Commissioners from taking over the functions of Fire and Rescue Authorities.
Amendment 2, in schedule 1, page 145, line 16, at end insert—
“4AA Power to change title of police and crime commissioner
(1) This section applies if the Secretary of State makes an order under section 4A.
(2) The Secretary of State may by regulations made by statutory instrument change the title of a police and crime commissioner appointed as a fire and rescue authority.”
This would enable the Secretary of State to change the name of police and crime commissioners to reflect their new additional responsibility for the fire service. The Secretary of State would have the power to make such a direction in secondary legislation at some point in the future.
Amendment 20, page 145, line 16, at end insert—
‘(7) No order can be made under this section until the Secretary of State has conducted a review assessing the funding required by the fire and rescue service to secure the minimum level of cover needed to secure public safety and maintain fire resilience.
(8) The review carried out under section (7) must assess the impact of the level of cover on—
(a) fire related fatalities;
(b) non-fatal fire related casualties;
(c) the number of dwelling fires and other fires;
(d) the number of incidents responded to, and
(e) the strength and speed of response to incidents.”
This amendment would require the Home Secretary to conduct a review on the level of funding the FRS requires in order to secure public safety before she may make allows police and crime commissioner to be a fire and rescue authority.
Amendment 6, page 157, line 33, at end insert—
‘(4) An order under section 4A, whether modified or not by the Secretary of State, may only be made with either: consent of all of the relevant local authorities and relevant fire and rescue authority, or a majority vote by local people through referendum.”
This amendment would ensure that a PCC can only take over a Fire and Rescue Service with the approval of local people or their local representatives.
Lyn Brown
I am delighted to see you in the Chair, Madam Deputy Speaker.
We oppose the Government’s proposals to allow police and crime commissioners to take over fire and rescue services, and amendments 3, 4 and 5 would delete the provisions in the Bill that would enable them to do so. We have also tabled amendments to mitigate the risks if the Government’s proposals are enacted.
Amendment 6 would ensure that a PCC could take over a fire and rescue service only with local support expressed either by elected councillors, with the unanimous agreement of all the local authorities affected, or directly through a referendum. Amendment 20 would require the Home Secretary to review the level of funding the fire service needed to secure public safety. New clause 20 would give fire services in England a statutory responsibility to deal with flooding. The Minister said in Committee that he was minded to consider that particular provision. He has not jumped to his feet to say he wants to take it as a Government new clause, but I live in hope.
When the Minister responds, I hope he will set out what benefits he believes PCCs will bring to the fire and rescue service. What skills and expertise do they have that our fire and rescue authorities do not? How will they help the fire service to cope with the new challenges it faces when dealing with major incidents such as flooding and terrorist attacks? What indication is there that the governance of the fire service is broken or substandard and needs replacing? The Government have not even begun to answer these questions or to make a case for the reforms.
Jake Berry (Rossendale and Darwen) (Con)
Does the hon. Lady agree that the reason that the governance of the fire service needs to be changed is that very few of our constituents would know the name of every person on the local authority fire panel? Given her involvement with the Bill, could she herself name every person on her local authority fire panel?
Lyn Brown
My fire service is provided through the Greater London Authority, and I know that should I want to talk to anybody about London’s fire service, I could talk to those elected GLA Members—and I do know their names—or to the Mayor. When people in my local authority want to have an impact on a local service, they tend to approach their local councillors, which I think is not a bad route, but the reforms would change that. People would not be able to go to their town hall to talk about services that have an impact on them. [Interruption.] The hon. Member for Kingston and Surbiton (James Berry) heckles me gently in a low voice and says, “They would be elected.” I know that Newham might be unusual but its councillors are elected too, and certainly the councillors at the GLA are elected.
James Berry (Kingston and Surbiton) (Con)
But they are not elected to a specific responsibility, as PCCs are. People who vote for PCCs know they can hold them to account specifically for policing, and that will now be extended to the fire service.
Lyn Brown
I say gently to the hon. Gentleman that the turnout last time for PCC elections was dismal. I hope it will be significantly better this time, but when I was on the doorsteps last year, in parts of the country other than my own little patch in London I did not find that people knew who their PCC was. I say gently to him that our constituents do not know that when they go to the polls next week they will be electing a PCC who might be taking over their fire service. The Bill will not have been enacted by then.
I think that the timing and, as I will explain, the way we have done this has been wrong. The consultation preceding the Bill did not seek the views of experts and specialists on the substance of the proposals. It set out how a PCC could assume control of a fire and rescue service and then asked consultees what they thought of the process. It did not ask them what they thought of the proposals themselves, and it did not ask whether the proposals would increase public safety or lead to better governance.
It is not in the impact assessment—that very thin impact assessment, which I am sure that the Members who sat on the Bill Committee will have read—but the Knight review of the future of the fire service recommended that PCC takeovers be attempted only if a rigorous pilot could identify tangible and “clearly set out benefits”. The Government chose to ignore this key recommendation and are instead proceeding before any evidence has been gathered about the likely benefits, costs and threats to the plan. It is utterly reckless. The impact assessment is threadbare. The only rationale offered for this intervention is the Government’s belief that there needs to be greater collaboration between emergency services. No one thinks otherwise, but the Government have not provided any justification of why it is more likely to occur under PCCs or any analysis of the current barriers to collaboration. It is policy without evidence or clear rationale.
Kate Hoey (Vauxhall) (Lab)
I agree with everything my hon. Friend is saying. She knows—and surely the Government know—how much co-operation already goes on. It does not have to be prescribed in this top-down way; it works organically and it works really well.
Lyn Brown
My hon. Friend is absolutely right. There is really good collaboration now between all parts of our public services—between fire and police, fire and ambulance, and fire, ambulance and police—and I understand the Government’s wanting to move that agenda further and encourage more collaboration, but this bit of the Bill does not do it. As I will explain, I believe it will in fact deter some boundary and border merges, which would be a massive problem.
The Government’s cavalier approach to this public service upheaval is completely indefensible, given the significant risks that the proposals represent to the fire and rescue service. PCCs are still a nascent institution. The Home Affairs Select Committee has said:
“It is too early to say whether the introduction of police and crime commissioners has been a success.”
We do not know whether they have succeeded in their core duties, so why are the Government proposing to expand their portfolios by giving them control of the fire service too? I think the Government want to bolster the powers and budgets of PCCs to help them through their difficult inception and that the proposals are a step towards PCCs becoming mini mayors. A vital public service, such as fire, should not be pawned off to save struggling Whitehall inventions or to overturn a public vote against the creation of a mayor. Unlike mayors in combined authorities, the PCCs will be completely free from the democratic scrutiny provided by local government, and the creation of the extended office will not have been approved by local people.
The most serious risk, however, is that fire, with its much smaller budgets and less media attention than policing, will become an unloved, secondary concern of its new management—a Cinderella service. I have raised this point repeatedly with the Minister in Committee and in other debates, but he has not indicated what he might do to mitigate the risk. I am not the only one who thinks this: Peter Murphy, the director of public policy research at Nottingham Business School, has argued that if the fire service were to slip into the status of a Cinderella service, it would only repeat what happened the last time fire had to share an agenda with policing. I will quote him in full, because it gets to the heart of the matter:
“If the proposals ore implemented, there is a very strong chance that the fire and rescue services would go back to the ‘benign neglect’ that characterised the service from 1974 to 2001 when the Home Office was last responsible for fire services. Police, civil disobedience, immigration and criminal justice dominated the Home Office agenda, as well as its time and resources. If the fire service becomes the lesser partner in a merged service, the long-term implications will include smaller fire crews with fewer appliances and older equipment arriving at incidents. Prevention and protection work, already significantly falling”—
he is so right about that—
“will result in fewer school visits and fire alarm checks for the elderly”.
What a chilling vision for the future of our fire service!
Catherine West (Hornsey and Wood Green) (Lab)
My hon. Friend is making some excellent points. Does she agree that this proposal, combined with the 17% cut that we have already seen in the service across the country, could lead to a risky situation, particularly for many vulnerable households?
The Minister for Policing, Fire, Criminal Justice and Victims (Mike Penning)
I listened carefully to the quotations, and I would be chilled if any part of what was said were factually true. If there were an attempt to combine the emergency services, fire and police, we would have moved to one funding stream. I categorically ruled that out, so this sort of scaremongering—not from the shadow Minister but from others—is flawed. There is a separate funding stream in the precept for the police. The only bit that is going to be amalgamated, should the PCCs be like the Metro Mayors in this respect, would relate to the back office and the administrative side.
Lyn Brown
But should a PCC take over the fire service, we would have a person in charge whose main attention was on policing and all that policing involved. The media focus much more on policing than they do on the fire service. The fire service will be secondary. Although the Minister rightly says—I do not doubt him—that the two funding streams will be different, I do not know how long that will last, and in truth, neither does he, because things move on. We had police and crime commissioners under the last Government; this Government are now proposing police, crime and fire commissioners. What will happen in a couple of years’ time? I do not know. There might be accounting efficiencies in order to save costs, and the budgets might well be merged. I do not think that these proposals make any sense.
A further risk is that these proposals will make mergers of fire services more difficult, which would be a real setback, as inter-fire mergers increase resilience and achieve significant savings. The 2007 merger of the Devon and Somerset fire services was supposed to deliver £3 million of savings in the first five years. It actually bettered that target by £600,000.
The Minister will know that Martyn Underhill, the Independent PCC for Dorset—I am trying to keep this politically neutral—has said that he has no interest in running the fire service. Why? It is because Dorset and Wiltshire fire service has undergone a merger that proposes to bring significant savings and increase the resilience in that area. He does not want to interfere with the process, and he is really wary about his office having responsibility for Wiltshire. I admire this decision, made by Commissioner Underhill, but how many potential mergers of fire services will not even be considered as a result of PCC takeovers and the need for coterminosity? I remind the Minister that until a few months ago, this Government trumpeted mergers as a key to the future of the fire service; yet they are now, sadly, going to slip off the agenda.
I know that the Minister has little sympathy with the particular argument I am about to make, but I am a brave soul. A large proportion of the work carried out by the fire service is preventive. There is a danger that these proposals will make this preventive work a little more difficult. It is a humanitarian service. We need to be honest: the police service is not a humanitarian service. The two services are seen differently by some communities, and these proposals could make the fire service’s preventive work more difficult.
There are some people who would not welcome a policeman into their home without a warrant. Police officers turning up at the door can be a scary experience. Firefighters go into people’s homes and work spaces, and check that smoke alarms and electrical appliances are safe. They fit sprinklers and even look for worrying signs that might concern other services, such as the NHS and council care services. This preventive work is not an add-on to the fire service’s work; it is at the core of what it does—keeping people safe, so that they do not have to be rescued further down the line.
Mike Penning
I do not quite understand—perhaps I do, but I do not think it is fair—why the shadow Minister is conflating operational work that the police do with operational work that the fire service does. Of course, a lot of work is done together, particularly at road traffic collisions, but there is nothing in the Bill that would conflate the two in the way that the shadow Minister suggests.
Lyn Brown
First, they will not be equal partners, because we are talking about a big service and a small service. Secondly, in the minds of some of our communities, the police and the fire service will become one and the same. They will have one boss, and there will be an anxiety that someone coming through the door to fix a smoke alarm might have a different agenda.
Mike Penning
The hon. Lady’s constituency is in London, where there is a Mayor, and the mayoral system will take over fire. Is there the same concern in London and in Manchester? Actually, the Labour candidate in Manchester wants the powers as a Metro Mayor.
Lyn Brown
In London, the service is run by a Mayor and elected councillors. It is not run by an individual whose other job is to be the police commissioner. I think there is a difference, and I believe that our communities will think there is a difference. We cannot prescribe how people think and what they worry about, but this concern has been raised with me.
James Berry
Does the hon. Lady not accept that her comments could be interpreted by the police as quite insulting? They do a lot of preventive and humanitarian work. As she knows, the hon. Lady’s submission comes right out of the Fire Brigades Union’s consultation document, which I also thought was quite insulting to the great work that our police officers do in the very areas that she highlighted.
Lyn Brown
The police I meet on my doorsteps and streets are dead pragmatic souls. They understand the sensitivities that some communities have: they treat some of my refugee communities with extraordinary sensitivity to overcome the natural barrier that is there. What I am saying to the hon. Gentleman is that there is a natural barrier. That is no slur on our police force; our police force are an enforcement agency, and not really a humanitarian service. The police are there to implement the law. Let us move on.
The Minister is not passing over a service that does not have some difficulties. The fire and rescue service has been subject to a cumulative cash cut of £236 million or 12.5% since 2010—and, of course, there is more to come. [Interruption.] Is the Government Whip trying to engage me? Does he want to intervene? It seems not. I just thought I would give him a chance.
Mike Penning
I believe that what one of my colleagues was trying to say from a sedentary position is that we should not wash over the debacle and the huge costs of the regional fire control centres that the previous Labour Administration forced on the fire service. [Interruption.]
Lyn Brown
Is that right? When I was a Whip, I was taught that I should be seen and not heard. I am sure that the hon. Member for North East Cambridgeshire (Stephen Barclay) did not want to intervene on me at all. The issue of regional fire control centres has been well thrashed out in this Chamber. There were a myriad reasons why they did not work, and I accept that they did not.
Let us return to what the Government have been doing. Here we are in 2016, and it feels as though they have been here forever. The fire and rescue service has been subject to a cumulative cash cut of £236 million, or 12.5%, since 2010, and, of course, there is more to come. We know from the local government funding settlement that fire and rescue services are expected to cut spending by a further £135 million by the end of the Parliament. A stretched service will be squeezed even further.
As a result of these cuts, 7,600 firefighters have already been lost, and the Government have repeatedly ignored warnings that the cuts may be putting services at risk. Their proposals will not protect a single firefighter’s job, or put a single firefighter back in service. I have been told by fire chiefs that their services will “not be viable” under the Government’s proposed spending plans, and I am sure that they have told the Minister exactly the same thing.
The National Audit Office has calculated that there was a 30% reduction in the amount of time spent on home fire checks and audits over the last Parliament. That is a huge reduction. The NAO has said that the Government have “no idea” of the impact of that on public safety. It has also said that, as the Government refuse to model the risk of cuts, they may only know that a service has been cut too long after the fact—that is, after public safety and the lives of the public have been put at risk.
I was not surprised, although I was dismayed, by the latest English fire statistics, which cover the period between April and September 2015. They show that there were 139 fire-related fatalities during that time, 31 more than occurred during the same period in 2014. There were 1,685 non-fatal fire casualties that resulted in hospital treatment, a 10% increase on 2014. Fire and rescue services attended about 93,200 fires, 7% more than in 2014.
The Government have cut the fire service, cut firefighters, and overseen a massive reduction in the amount of preventive work undertaken. I know that we are talking about a spike over just a couple of quarters, but there are statistical signs that the service may be feeling the awful effects of the cuts that have been made. So what do the Government do? Do they stop the cuts while they undertake a proper risk assessment? Do they begin to develop minimum standards for the number of stations and firefighters, and for preventive work? No. The Government want to pass on the responsibility to police and crime commissioners, who have had to deal with similar cuts in police budgets, and who have lost 12,000 front-line police officers. They are not even assessing the level of funding that PCCs would need to maintain resilience and keep the public safe.
This is a good line. By passing the buck without the bucks, the Government could be asking PCCs, who will be new to the fire service and its complexity, to undertake further potentially dangerous cuts. The PCCs will not know what the risks are, because the Government refuse to model them. That is why we tabled amendment 20, which would require the Home Secretary to carry out an assessment of the level of funding that fire services need to keep the public safe.
Our fire and rescue authorities are trusted experts on the fire service. The councillors who serve on them often have years of experience, and have gained a genuinely deep knowledge and judgment from overseeing the strategic direction of fire services in their areas. Given the trust and respect that local fire authorities have, allowing PCCs to take over a fire and rescue service without their support poses the clear risk that employees, and the public, will perceive newly empowered PCCs as an unwelcome central imposition. Our amendment 6 would ensure that a PCC who does take over a fire and rescue service can do so only with the approval of the locally elected representatives on the relevant councils, or, alternatively, of local people through a referendum.
Jake Berry
The hon. Lady has raised the interesting issue of a local referendum. I wonder whether she can tell the House—so that we can consider her amendment properly—what the cost of such a referendum would be for each fire and rescue authority, and also who would pay. She has expressed concern about the removal of budgets from fire and rescue authorities. Perhaps if they were the ones who paid, more firefighters would be removed from the front line.
Lyn Brown
The referendum would take place on the same day as any local council election. We would not want an election to be prohibited by costs. As for where the costs should lie, I think that they should lie with the Government, because, after all, it is they who have proposed these changes. If the hon. Gentleman wants someone else to pay, perhaps it should be the Government’s arm, the PCCs. As he has rightly pointed out, their budgets are larger than those of any fire authority.
Jake Berry
First, will the hon. Lady tell us what her amendment would do, and who would pay for it? Secondly, will she tell us what estimate she has made of the cost?
Lyn Brown
One of the joys of being in opposition is that we have to do our own work ourselves; we do not have a phalanx of willing employees to do it for us. Once the House had passed the amendment, I would need to rely on the Government and their civil servants to help us to work out the cost. If the cost became prohibitive, I could suggest that the Government drop this silly idea altogether, and save loads of money.
James Cleverly (Braintree) (Con)
I have sat patiently while, on a number of occasions, the hon. Lady has referred to elected councillors being elected to fire authorities. Can she clarify, for the edification of the House and the public, that no elected councillors are elected to the fire authority in London—which covers her constituency—or, indeed, to the vast majority of fire authorities in the country?
Lyn Brown
I wonder what kind of interaction Conservative Members have with their local councillors, but I can only imagine that it ain’t good, because every time I raise this issue, anxiety is expressed about the genuine nature of locally elected members.
I can only say that I have a much better relationship not only with Newham councillors, but with GLA councillors. They are elected. They face the electorate. They are elected to a body which then places them on another body that is responsible for fire, just as they are given responsibilities for social services, education, leisure services, and so forth. It is the same process. I support democracy and I support my democratically elected councillors, who are doing a jolly good job in very difficult times to keep services going. Conservative Members should not denigrate their local councillors quite so much.
James Cleverly
I assume that this is entirely my mistake; I probably did not make my question clear enough, and I take full responsibility for that. I will have another crack at this. Can the hon. Lady name any local councillor or London Assembly member who has been elected by the people of Newham to sit on the fire authority?
Lyn Brown
In London, as the hon. Gentleman knows, the people of Newham elect a GLA councillor and the GLA councillors then determine which parts of the work they will undertake for the GLA. I do not see that that is a problem. The same thing happens in Newham. When we elect 60 Labour councillors—and zero councillors from any other party—we then give them jobs looking after social services, education, recreation and so on. I can tell the hon. Gentleman the name of the councillor who has the fire remit in my council. He is Councillor Bryan Collier and he is a wonderful bloke. He has been doing the job for decades and he has lots of knowledge.
Mike Wood (Dudley South) (Con)
Speaking as someone who was a councillor until this time last month, I bow to no one in my appreciation of the importance of local government. However, the shadow Minister demonstrates a strange understanding of democracy given that she seems to prefer the patronage of local council group leaders to the direct mandate involved in being elected on to a body by voters.
Lyn Brown
I am bemused by the contempt that Conservative Members are showing for local councils. I hope for the hon. Gentleman’s own sake that he does not have a Tory-led local authority waiting for him when he goes back home on Thursday. Frankly, if I were a member of his council, I would be sitting on his doorstep waiting to have a word, because that is really not on. [Interruption.] Oh, really? That is such a shock! The chuntering from the Government Back Benches is outrageous. I don’t even know where I got to in my speech.
If the Government do not trust local authorities—and it seems clear that they do not—perhaps they will be pleased to accept our amendment, which would allow the decision on whether to place PCCs in control of fire services to go directly to the electorate. The Government’s reforms are fundamentally about the transfer of power from the collective democratic representation of local councils to a single individual, and the creation of mini mayors across England. The Minister knows this to be true, and he knows there is no democratic mandate for it—none at all. If he accepted our amendments, he could right that wrong and ensure that each local community could decide for itself what was in the best interests of its fire and rescue service. That would be a real localism agenda.
New clause 20 would give fire services in England a statutory responsibility to deal with flooding, as is already the case for their Scottish and Northern Irish counterparts. In December, much of the north of England was devastated by flooding. Many homes were flooded, bridges connecting communities were washed away, major roads were blocked and, in Lancaster, a sub-station was flooded leaving tens of thousands of homes without power. In December alone, firefighters responded to more than 1,400 flood incidents across the north-west, and on Boxing day, 1,000 people were rescued in Greater Manchester. The work of our firefighters was brilliant during those difficult days. I am sure that Members on both sides of the House would agree on that, if on nothing else.
However, fire services have expressed concern that they were not properly equipped to deal with that situation and that they lacked basic kit such as boats and dry suits. Frankly, that is not good enough. I believe that this stems from the fact that it is unclear who holds the primary responsibility for responding to floods.
When flooding is not formally the responsibility of any service, it will not be given the priority it deserves in budgeting and planning. If we are going to continue to ask fire services to deal with major incidents such as flooding, we should say so in this place so that proper provision can be made and they can prepare comprehensively for incidents. Stories of volunteers and the Army mucking in might be heart-warming, but that is simply no substitute for a properly organised and funded rescue service.
Before I finish, I would like to touch on the issue of privatisation. The Minister gave us categorical assurances that there would be no changes or movement in that regard, and that is why we have tabled no amendments on privatisation. I am going to hold the Minister to his word, but I am sure that those in the other place will want to do a bit of digging to ensure that I am right and he is right, and that there can be no privatisation of our fire services under this legislation.
Amanda Milling (Cannock Chase) (Con)
I would like to speak to amendment 2, which is in my name and those of several right hon. and hon. Members across the House. Part 1 of the Bill sets out the measures to encourage greater collaboration between emergency services, a topic that I have spoken about several times in the House. Clauses 6 and 7 will give police and crime commissioners the opportunity to extend their responsibilities to include fire and rescue services. I have been calling for that extension for some time now, and I secured a Westminster Hall debate on the topic last year. As I said on Second Reading, I welcome the inclusion of those clauses in the Bill.
The introduction of police and crime commissioners in 2012 created greater transparency and democratic accountability in policing, with PCCs replacing unelected and unaccountable police authorities. Extending the responsibilities of PCCs to include fire and rescue authorities will mirror those benefits. As we have been hearing, fire and rescue authorities are made up of elected councillors, but they are not directly accountable to the public for those specific roles, as they are appointed to those positions. As I have said before, that is very different from, and should not be confused with, democratic accountability.
The introduction of directly elected PCCs means that the public can scrutinise their performance, precept and priorities, and exercise their approval—or, indeed, disapproval—at the ballot box. The public will get their chance to decide on the performance of the first tranche of PCCs in a couple of weeks’ time, on 5 May. It is absolutely right that the guardianship of the fire and rescue services should also be directly accountable to the public, and given the synergies between the two services, it is logical that PCCs should take on that responsibility, too.
James Cleverly
Does my hon. Friend agree that, far from overlooking the attributes of our firefighters, it would be an advantage to local communities if highly trusted, experienced firefighters were given the opportunity to extend their preventive remit to areas such as crime prevention advice as well as fire prevention advice?
Amanda Milling
I thank my hon. Friend for his intervention. This is about collaboration, and prevention extends across our emergency services.
Amendment 2 is designed to provide the public with greater clarification on the role of the police and crime commissioner. If a PCC does take on the responsibility for fire and rescue services, it is important that the public are clear that the individual is responsible for both the police service and the fire and rescue service. I have called for the title change in the House before, and it will help to address some concerns raised on Second Reading, in Committee and earlier that the change represents a police takeover.
Kate Hoey
I rise to support new clause 20 in particular. I declare an interest as chair of the Fire Brigades Union parliamentary group. Giving fire and rescue services a statutory responsibility for leading the emergency services in response to flooding is something on which we have had meeting after meeting over the years with Department for Environment, Food and Rural Affairs Ministers, who have all said that they supported it, and with Ministers from different Departments. It goes so far, but then it stops. There is clearly a Treasury argument here somewhere, but I feel strongly about the matter. There has been an increase in floods over recent years, and we have seen how our fire and rescue services have responded. What is happening seems wrong when we rely on them.
Let us look at the data from last year. Thirty-four fire and rescue services provided assistance in the worst-affected areas. Data collected by the FBU, which does a good job in getting it, from individual fire and rescue services found that firefighters responded to at least 1,400 flood incidents across north-west England and 450 incidents in Yorkshire. As we saw on our television screens, with politicians lining up to thank them and say how brave they had been and how wonderful they were, firefighters rescued people from a wide range of hazardous situations, evacuating people in advance of coming floods and making various other emergency interventions. It seems strange that we give our firefighters great praise for doing something that we and local people automatically expect them to do, yet we do not make their leading of the emergency services a statutory responsibility. I can only assume that the Government do not want to spend what might be some extra resources on ensuring that firemen and firewomen and all the rescue services are properly equipped.
We have seen terrible examples of when firemen and women have not had the right safety or protective equipment and have had to do things without the correct clothing, with things running out in some areas. They still did those things, but that is wrong and I genuinely do not understand the situation. I am sure that the Minister supported the proposal at one time. Many Ministers have supported it, but when they get into a position in which they actually have to make the decision or are allowed to get involved in it, they seem to change their mind. I hope the Minister will respond to that and that we will get the opportunity to support the change in a vote today.
I now turn briefly to the other issues. I share the position of the shadow Front-Bench team on police and crime commissioners. There is no public appetite for change. Wherever I have been around the country, no one has been clamouring for reform of how we govern our fire services or for any responsibility to be transferred to PCCs. I have not heard any evidence today—we may hear it from the Minister, but I doubt it—that there is a problem with the current governance arrangements. No one has convinced me that the change would deliver an emergency service that is more economic, efficient and effective or would help to improve public safety. We all want co-ordination, and I welcome that co-operation and co-ordination have gone further in some parts of the country than in others. As my hon. Friend the Member for West Ham (Lyn Brown) said from the Front Bench, we want to see more of that, but we do not need to bring it in this top-down, totally anti-democratic way.
I am not at all ashamed to say that I believe that firefighters and police officers perform different roles. That does not mean that we do not value equally the roles of both, but they perform different roles and have different remits. A police officer is seen as a legal person and someone who is there to uphold the law. A fireman or firewoman, or anyone involved in the rescue services, is seen very differently. Having a single employer will begin to confuse that in the public mind. The preventive work that firefighters do and the way that they are trusted, implicitly and completely, by the public could well be jeopardised if the changes go through.
The Bill and this change would do nothing at all to invest in fire and rescue services’ resources. I have already mentioned the work that goes into responding to large-scale flooding incidents and providing emergency medical response. The Government should focus on putting extra resources into initiatives that will actually lead to the changes and to co-ordination.
Mr Jim Cunningham (Coventry South) (Lab)
I am sure that my hon. Friend would agree that this is frankly more about saving money than improving the service. She probably noticed that the burden has been shifted on to local authorities, with the 2% increase. Eventually, the entire burden for fire and police will be shifted on to local authorities. Then we will have a situation of profligate spending—we have been here before—and local authorities will get capped.
Kate Hoey
Absolutely; there is no doubt this is a cost-cutting exercise. I accept that these days everybody has to have constraints on the public purse, as far as is possible, but there are ways of doing that and this bureaucratic way seems to have been brought in by people who have had the idea for a long time and now have seen an opportunity to push it forward. The Government should not be pursuing these almost ideological ways of trying to save money. They should be looking at ways of improving our emergency services and ensuring that they co-ordinate well together. It would be wrong to transfer this responsibility to a PCC. We have a valuable, popular fire service that has the confidence of the public, and we should be very wary of making those changes, which I think will have a really detrimental effect on not only how the public see the service, but on its effectiveness out there in the country. I hope we will be able to make some changes to this proposal and that when Members get the opportunity they will vote to put a stop to something that is very wrong indeed.
Several hon. Members rose—
James Cleverly
I am obliged to you for calling me, Madam Deputy Speaker, although I apologise if I leapt to my feet rather more quickly than colleagues had anticipated. I am keen to speak in this debate, having served on the Bill Committee and, for a number of years, as chair of the London Fire and Emergency Planning Authority. I feel that I speak with a fair degree of authority on the implications of different governance models, because the LFEPA had to go through the process of making substantial changes to the London fire brigade and I saw at first hand the widespread misunderstanding of the governance arrangements, both of the London fire brigade, through the London fire authority and to the Mayor, and more widely and nationally.
I like clarity; it is a cornerstone of democracy that people can follow the golden thread from the decisions they make at the ballot box, through to the people who make the decisions about the provision of their public services and, ultimately, on to the delivery of those services. This is important, because when things go right in the delivery of those services, people should know who to reward at the ballot box. Perhaps more importantly, if things do not go well, voters should know who they can punish at the ballot box. That is a cornerstone of the democratic model, to which I am sure we all subscribe.
Previously, when we had police authorities, there was a break in that golden thread, because people did not know who ran their police force. They were probably aware of where the police headquarters were, although I am being generous when I say that. I suspect that in many parts of the country people might have had a vague idea that the police headquarters would be in the big town—the county town. People in my constituency are aware that the police headquarters were in Chelmsford, but I would be surprised if many were able to name their chief constable and absolutely amazed if any were able to name the local councillors who sat on the police authority.
Catherine West
I agree with the hon. Gentleman, in that my mailbox is full of matters such as housing. However, the mail on policing and fire is more about anxiety at the level of cuts since 2010. I would like a reassurance that all this meddling on governance is not going to lead to further service reductions in terms of our crucial bobbies on the beat, firefighters who turn up on time and all the rest of the expectations that the community rightly has of our emergency services.
James Cleverly
I intend to deal a little later in my speech with some of the financial benefits that come with greater collaboration and co-working in the back office. If the hon. Lady will bear with me, I will return to that point.
Jake Berry
I wish to bring my hon. Friend back to his point about how people may know the name of their chief constable but would not know who was on their former police authority. Does he agree that one real benefit of a PCC is that people will know not only the name of their chief constable, but also of their PCC? In addition, they will be involved in setting the priorities for policing in their own area. In the forthcoming PCC elections in Lancashire, one of our top priorities, which we are out there campaigning on—with success, we hope—is tackling rural crime, which is hugely important to the towns and villages around Rossendale and Darwen. The PCC election has given us the opportunity to say, “Tackle cybercrime and speeding, but also prioritise rural crime” and, thus, get people really involved with their own policing.
James Cleverly
My hon. Friend raises an important point, which goes to the heart of the fundamental change in the relationship between people in the local community and the police force that represents it. It gives those people an opportunity periodically—once every four years, or indeed sooner—to hold PCCs to account. We have seen an example of where the priorities and the actions of a PCC have fallen below the level of legitimate expectation. That person was then forced to stand down and a PCC by-election took place, which really focused the minds of the people in South Yorkshire about what the role of their PCC should be. That requirement for PCCs to hold themselves to account before the electors goes to the heart of the success of the PCC model, and it is important to expand that success to the fire and rescue service.
Antoinette Sandbach (Eddisbury) (Con)
The hon. Member for Hornsey and Wood Green (Catherine West) spoke about cuts, but Cheshire’s PCC has been very successful at putting more officers on to the frontline. He is collaborating with his local fire and rescue service, and there will be co-location in the police headquarters in Winsford. That is an example of where co-operation is delivering more for less very effectively, and in a way that is protecting people in Cheshire, particularly in my constituency.
James Cleverly
I thank my hon. Friend for making that point, which reinforces one of my beliefs. We hear a lot of talk in this Chamber about what people want, but all the evidence I have received, including from the extensive research carried out during the changes we made to the London fire brigade in my former role as the chair of the LFEPA, shows that what people really want is certainty. That goes to a point Opposition Members have made about people having quality public provision when they need it, where they need it. We should subordinate structures to the delivery of that agenda. I also believe that the changes proposed by the Government go a long way towards protecting those structures.
Julian Knight (Solihull) (Con)
Does my hon. Friend share my incredulity at the Labour party’s talk about cuts, given that, if I am not mistaken, it was the shadow Home Secretary, the right hon. Member for Leigh (Andy Burnham), who went on the record calling for 10% cuts in the police budget? Perhaps my hon. Friend will reflect on that for a moment—
James Cleverly
My view is that we judge people by what they say. I know that there will be indignation from Labour Members, but as we have seen when the Labour party was in government the quality of the delivery of public services is not always totally interwoven with the budgets allocated to them. Indeed, there are massive opportunities to get more for less, and surely that should be the acme of performance.
Lyn Brown
May I say to the hon. Member for Solihull (Julian Knight), who has just taken his place in this Chamber, that, frankly, this has been a better debate than that? His unreasonable slur on the Opposition is about our stance on the police services rather than on the fire services. It would be really good if he read the Whips’ report more carefully before he intervenes next time.
May I say to the hon. Member for Braintree (James Cleverly), to whom I have been listening, that his points are interesting and have some validity, but London is rather different from areas outside London? Over decades, London has got used to having a single seat of government—even though there was an interregnum when the Greater London Council was disbanded. The reality is that when our constituents do not know where to go to complain about a service or to bring up an issue, they end up at the door of our town halls. It does not matter whether we are talking about Newham or Newcastle, that is where they go.
Madam Deputy Speaker (Mrs Eleanor Laing)
Just before we proceed, may I say with great respect to the hon. Lady that, although she has many points to make which the House should hear, interventions must be short.
James Cleverly
London’s exceptionalism is often held up as the reason why things that happen in London cannot possibly happen elsewhere. I have to say that, having served in office both in London and in Essex, I do not subscribe to that view. There are many things that national Government can learn from what a Conservative administration has done in London. I will go even further and say that London could learn plenty of things from other parts of the country, including from my wonderful county of Essex.
Mr Jim Cunningham
The hon. Gentleman is making some interesting arguments, but the problem that we have in the west midlands—if we leave the Mayor and his authority to one side—is the frequency of change in the local superintendents. They change and the public do not really get to know them. In the past, before the Layfield report and the major reorganisations of the 1970s, people were able to identify who was in charge of the local police force and knew exactly who to go to. That is the problem that we have in the west midlands.
James Cleverly
That is a fair point. I have had a number of people talk to me about the speed with which police officers move through posts, so I do not disagree with the hon. Gentleman.
Let me drag myself kicking and screaming back to the point that I was trying to make, because I have inadvertently found myself speaking more about policing than about fire and rescue services. I think it is legitimate, because what we have seen in London is a very clear line of accountability. Londoners may not be able to identify their nearest—I do not use the word “local” here—fire authority member. The hon. Member for West Ham (Lyn Brown) mentioned the local councillor on Newham council who has responsibility for fire and safety, but that councillor does not sit on the London fire authority. In fact, the reason I asked her specific questions is that I know who sits on the London fire authority—I am probably one of the few people in this Chamber or elsewhere who does—and I know that no one from the London borough of Newham, either elected or appointed, is on that authority. When the people of Newham want to cast judgment on the delivery of fire services in that borough, the only person they can either reward or punish at the ballot box is the Mayor of London, who, we should remind ourselves, is also the police and crime commissioner for London.
I want to address the hon. Lady’s point about the fire service being starved of resources so that we can support what she feels is the higher-profile policing service. After the changes that the London fire authority made, the Mayor of London, who is the budget holder for both the police and fire authorities, made a commitment to protect the London fire budget irrespective of the budgetary award from central Government. He was able to do so, because he could flex his budgets over the two areas. Far from starving resources from fire and rescue to give to policing, he was able to protect fire and rescue by dipping into his broader budget. Therefore, I fundamentally disagree with this idea that a police and crime commissioner who has responsibility for both policing and fire services would automatically and obviously rob Peter to pay Paul. That view is reinforced by the fact—the Minister has stated this from the Dispatch Box on a number of occasions—that the budget lines are separate.
Before I conclude, I will touch on the concerns that were raised by the shadow Front-Bench team about the single employer model. There are many instances where the employer has very different types of employee in terms of public sector delivery. No one confuses civil servants at the Ministry of Defence with members of the Special Air Service. Ultimately, both are employed by the same organisation; there is no confusion in the minds of the public there. Indeed, in the fire and rescue service and the police force, we have both uniformed and non-uniformed members of staff. The police service has warranted officers, police community support officers and non-uniformed civilian staff, and they are all under the same employer and there is no public confusion about the different roles. The idea that, somehow, the British public are too dim-witted, or too slow on the uptake, to be able to tell the difference between a copper and a firefighter is an argument that is so bereft of power that it should be disregarded.
The British people deserve to know who to punish or to reward at the ballot box in relation to fire and rescue, because, like policing, it is a vital public service. I have no doubt that, next week, we will see a much greater engagement and turnout in the police and crime commissioner elections than we have seen previously because people now understand in more detail what they are voting for. They have seen where the police and crime commissioners have done well, as highlighted in Cheshire by my hon. Friend the Member for Eddisbury (Antoinette Sandbach), and where they have done less well, and the PCCs will be held to account at the ballot box. When it comes to the delivery of fire and rescue provision, the British people deserve just as much a say as they do on policing, so I am happy to support the Government’s position, and I call on the House to reject the new clause put forward in the name of the shadow Minister.
Jake Berry
Having spoken on Second Reading and served on the Bill Committee, it is a real pleasure to be here on Report. Initially, I want to address my comments to new clause 20, which was proposed by the Opposition. The aim of the new clause, which is to give fire and rescue services the lead in flooding, is good. However, I disagree with the new clause overall, and I will go on to say why I do not think it is necessary.
I was selected as the Conservative parliamentary candidate for Rossendale and Darwen in 2007. On 13 January 2017, it will be 10 years since I was selected—hopefully, there is a big celebration to come. In that period, the village of Irwell Vale in my constituency has, I think, flooded four times. The aptly named village of Waterfoot has flooded three times, and Whitewell Bottom has flooded twice. Like so many areas that have grown up because of the industrial revolution, the towns and villages of the Rossendale and Darwen valleys are built on the valley floor so that the manufacturers and industrialists of the day could take advantage of water power.
Like many other areas in the north-west of England, we have been subject to severe floods over the past 10 years, no more so than on Boxing day when we had what the Environment Agency called a once-in-75-years flood, having had a once-in-25-years flood a few years previously. Having been working closely with the residents of Irwell Vale who are still out of their homes four months on from the flood, I know the huge impact that flooding has and the huge family disruption it can cause.
Julian Knight
My hon. Friend is making a powerful case from personal experience. Does he agree that flexibility is crucial? That is what he is describing. Surely if someone has the skills and the wherewithal to tackle the situation and they are on the scene, they should be allowed to do so without fear of legal recourse.
Jake Berry
My hon. Friend makes my point very clearly. People should try to prevent flooding or loss of life only when it is safe for them to do so and when they believe that they have the capacity to deal with the situation—for example, members of the armed forces or police officers, who are extremely brave, or the Environment Agency or the water board. The clause would put an unnecessary straitjacket on the response to floods in Lancashire. Although I support much of what it seeks to achieve, putting that in primary legislation is probably a step too far.
As an update, I can tell the House that the people of Rossendale are well served. We have the impending visit of the Minister with responsibility for floods, the Under-Secretary of State for Environment, Food and Rural Affairs, who is coming to Irwell Vale on 13 May. I do not think he knows what is going to greet him. I will make sure that there is an angry mob to talk to him about the response of the Environment Agency, but no one should tell him that. I hope it can remain our secret. I hope that in future the Environment Agency may be in a position to take a lead in the Rossendale valley, looking at a full catchment solution.
Mr Jim Cunningham
The hon. Gentleman mentions the Minister with responsibility for floods. In the 1970s we had a Minister with responsibility for drought. He was expected to bring the rain when necessary.
Jake Berry
There is no drought in Lancashire, but if the hon. Gentleman wants me to come to Coventry to do the rain dance, I am more than happy to do so if it is required.
Amendment 2, in the name of my hon. Friend the Member for Cannock Chase (Amanda Milling), has been signed by right hon. and hon. Members across the House. Having been involved in the Bill since Second Reading, it is clear to me and probably to everyone who has spoken on the Bill or served on the Committee that the recognition accorded to police and crime commissioners is at an all-time high. We first went to the polls on a wet November evening in my constituency to elect a police and crime commissioner. When I went knocking on people’s doors saying, “This is an important national election. You must come out and vote”, I was met with blank faces. People did not know what the office had been created for and they did not understand what police and crime commissioners would do.
Everyone who heard the evidence session on the Bill, with some excellent contributions from police and crime commissioners all over the country, would say that that has now changed. I may fundamentally disagree with much of the evidence given by Vera Baird to the Committee, but I have heard of her. I listen to Radio 4 in the morning and I often hear her, usually beating up the Government. She is raising the profile of police and crime commissioners, as are police and crime commissioners across the country.
The general public like the idea of having one individual whom they can hold accountable for the performance of their local police service. The old police panel was remote. It was appointed and was therefore unaccountable. I compare that to the situation today with my local PCC. He has taken road shows all around Lancashire, going out there and talking to people about what they would like policing priorities to be over the next four years. I am slightly sceptical about his new-found fondness for going out and meeting the public. It seems like a last-ditch attempt to be re-elected. I hope that Andy Pratt, the Conservative candidate, who has 30 years’ service as a police officer, will win in Lancashire so that, like many other areas of the country, including Cheshire and Staffordshire, we can have our PCC all year round, not just every four years at elections.
Bob Stewart (Beckenham) (Con)
If a member of the public has a problem, are they no longer allowed to go to the police chief? Do they have to go to the police and crime commissioner, or are there two centres? Can people write to the chief of police and say, “I’m really worried about this”, or are they expected to go to the police and crime commissioner?
Jake Berry
There is nothing precluding people from writing to their local chief constable. As chief constables are primarily responsible for the operational work of their local police force, if the query related to an operational matter, I would recommend that people wrote to their chief constable. People like to raise matters with the police and crime commissioner as well, but that is one democratically accountable, known individual who can put pressure on the chief constable on their behalf. I am sure the chief constable would be happy to hear from someone living somewhere in Lancashire, but he might be quicker to reply to their letter if the police and crime commissioner had his foot on the chief constable’s throat about the issue—[Interruption.] Indeed, or the MP. Many people do come and see me.
Richard Drax (South Dorset) (Con)
My hon. Friend is making an excellent speech. I have a couple of observations. First, I was not happy with the politicisation of the police force. It was wrong that we should have Labour or anyone else as PCCs. That worries me. Secondly, does my hon. Friend agree that there is potential for conflict between the PCC and the chief constable? In some cases the PCC is a former policeman, but PCCs may have no experience of the police, yet have the power to appoint and sack someone who may have 35 years’ experience. I am not happy with that, either.
Jake Berry
On the politicisation of the police force, that may have been driven by low turn out. Even though the Labour party opposed the office of police and crime commissioner in its last manifesto, I note that it is standing a candidate in every division. At the last election there were many independent candidates standing as police and crime commissioners. At the evidence session of the Bill, we had the independent police and crime commissioner for north Wales, Mr Roddick, come to give evidence. He was excellent. If I lived in North Wales, I would probably vote for such an excellent individual with a fantastic vision for policing. If he were a Conservative, I would definitely vote for him. Many independents have been successful.
Jack Dromey
(Birmingham, Erdington) (Lab): The hon. Gentleman says that we need the highest possible turnout. Of course, historically turnout at police and crime commissioner elections has been low. Does he therefore share our surprise that the Home Office has committed to spend the grand total of £2,700 on advertising for this year’s PCC elections?
Jake Berry
I have a lot of respect for the shadow Minister, but I think it is slightly disingenuous to say that the turnout was low, because it was the first ever such election, it was held in November and it was not coterminous with other elections. Given the interest in the local elections in all our constituencies, I think that the turnout will be slightly higher. With regard to the £2,700, I am surprised that the Home Office has spent so much. I do not think there should be any state funding for political parties or elections, so he will not find me lobbying the Home Office to spend more.
Let me return to the point made by my hon. Friend the Member for South Dorset (Richard Drax) about politicisation of the police. Support for our police and crime commissioners has grown, including for excellent independent police and crime commissioners. In Lancashire we have a police and crime commissioner who I think is very much at the beck and call of the chief constable. Although there needs to be a close working relationship between the two, I think that the police and crime commissioner often needs to be a critical friend, because he is not there to fight only for the interests of the police and police officers, as important as that is; he should be there to fight for, and put forward the voices of, people across Lancashire who want an improved policing service.
As I said in an intervention, one of the things I would like our police and crime commissioner to prioritise after the May elections, whoever he may be and whichever political party he may be from, is rural crime. That is driven not by Preston, Blackburn or Blackpool, the major conurbations in the county, but by villages such as Tockholes, Hoddlesden, Weir, Cowpe and Waterfoot in my constituency, where rural crime has a major impact on people’s lives. I hope that whoever wins the election is listening to this debate and will prioritise that. I think that can be the role of a police and crime commissioner: not to push the police’s agenda, but to push the people’s agenda in the area they represent.
Amanda Milling
Does my hon. Friend agree that that is absolutely the point of a police and crime commissioner: to represent the public? In doing so, they can look at things differently. For instance, the police and crime commissioner in Staffordshire has demonstrated innovation and is looking at ways in which the police can use technology to do the admin while out and about on our streets, rather than having to sit behind a desk.
Jake Berry
I agree with my hon. Friend. Let me mention one of the best examples I know of a police and crime commissioner taking a different approach. I met the police and crime commissioner for Cumbria shortly after he was elected. He had previously been headmaster of a Lancashire school. He said, “Do you know that there is no rape crisis centre in Cumbria? That is absolutely disgraceful for a police area of this size.” He took some of his PCC budget that was meant to be spent on administration and set up a rape crisis centre. I think that shows just how police and crime commissioners who really care about their areas—it is nothing to do with politics—can make a huge different to policing. When he was elected he said, “This is one of the things that I am going to change, because it is a disgrace that Cumbria does not have one.” In fact, he changed that within 18 months of the election. As a result of such actions, the recognition and popularity of police and crime commissioners has grown, and I believe that the same will happen with police and fire commissioners.
We all have immense respect for police officers and fire officers, but we accept that they do very different jobs. The public often see them working together and co-operating—for example, at the scene of an accident—but the idea of those two separate services having a common leadership will take longer for the public to understand. That is why I believe amendment 2 is absolutely necessary to improve an otherwise excellent Bill.
Geoffrey Clifton-Brown (The Cotswolds) (Con)
It is surprising what inspiration one can get when sitting in this place. I am delighted to speak to this group of amendments, and I do so in the very good hope that I can curry favour with my hon. Friends on the Front Bench and that they will give me everything I want when we come to discuss the next group of amendments. I therefore hope that they listen very carefully to what I have to say.
I think that this is an excellent clause, because it is enabling but not prescriptive. It enables fire and rescue authorities to be taken over by PCCs, but it does not compel them to be. That is where I take issue with the Opposition provisions. I have huge respect for fire and rescue authorities, which do a fantastic job. In my area of Gloucester, the authority is under the control of the county council, and—this is why I am pleased the clause is enabling not prescriptive—I would not want it to be transferred to the PCC, who is an independent and who is not doing a particularly good job. That is why the clause is excellent: it deals with everything on a case-by-case basis.
Having said that, I must mention my experience of having the Fire Service College in my constituency. The college provides major training for the fire service and does some amazing blue-light collaborative training involving the fire, police and ambulance services. As my hon. Friend the Member for Rossendale and Darwen (Jake Berry) said, it is essential that those services work as collaboratively as possible in an emergency. The services in Gloucestershire are coterminous and relatively small, compared with some of the larger, urban authorities, and the chain of command works incredibly well, with each service knowing exactly what it is supposed to do in any given circumstances. It is essential, particularly with more sophisticated and frequent emergencies—whether flooding or, regrettably, things such as terrorism—that the blue-light services work closely together.
Training for such events could be improved. Resilience training for all three blue-light services, working together in emergencies, could be improved. If, God forbid, they are ever really tested in a big emergency—particularly one that takes place at multiple locations—they will need their training and collaboration to be of the highest order. That is where some of the mergers of fire and rescue authorities and PCCs could help.
Having said that, my area is looking at an ever-increasing fire and rescue service operating under the county council. It is not just operational efficiency that I am looking forward to from the Government’s proposals, but administrative efficiency. Let me give the example of Cirencester—the biggest town in my constituency. The fire station there was formerly operated by professional firefighters; it is now moving towards retained firefighters, and there will not be quite so many of them. The premises is vast, and it is maintained at public expense, but the police could usefully use it for their authority too.
We therefore begin to get the idea, which should be pushed more and more, that our precious public resources can be better utilised—in the case of property, if more than one public authority occupies it at once. However, that requires a different mindset from authorities. The police are used to having their police station, and the fire services are used to having their fire station, and hitherto, in some cases, the two have never felt it appropriate to mix. We can achieve significant efficiencies by merging the two, particularly when it comes to property.
Jake Berry
I am sure my hon. Friend will agree that, when we go out and talk to our constituents, we see that they really care about the people out on the street and the frontline. We cannot measure a service by how many buildings it occupies in our town. Is my hon. Friend aware of the shared fire and rescue training and police training in Northern Ireland, which has saved tens of millions of pounds? That shows that, where co-operation is done right, and the police and the fire service maintain their independence, significant savings can be made.
Geoffrey Clifton-Brown
I am grateful to my hon. Friend, because that gives me the opportunity yet again to praise what the Fire Service College is doing in Moreton-in-Marsh. It is a large establishment on about 600 acres. It is on an old airfield, and it includes a runway used as a practice motorway on which motorway pile-ups can be simulated using real scrapped cars, so that the police, fire and ambulance services can then train in a big joint exercise. The college has offices they set on fire, and the police, fire and ambulance services can use that to train. It also has a ship it can set on fire. It has all sorts of huge facilities.
Geoffrey Clifton-Brown
In case my hon. Friend misunderstands, let me say that they do these quite sophisticated training exercises using a model ship, a model aircraft and an actual office block. This is a really good example of how collaborative training should be run. We should do much more of that, and we need much more of it to involve resilience, so that we can train people for the really sophisticated emergencies we face.
The Cotswolds have suffered considerably as a result of flooding in recent years. When we have had flooding, it has been distressing to see people taken out of their houses and sometimes evacuated, and to see their belongings completely wrecked. I must praise the emergency services hugely, because they are always there in the middle of the night and in the most difficult circumstances—often cold and wet—trying to deal with very demoralised and unhappy people.
We should act more collaboratively, but we should pay a great tribute to the emergency services, because they do a hugely good and dedicated job on behalf of all of us.
Mike Penning
May I praise, as I did in Committee, the tone of the debate and the measured way in which it has been taken forward, even though we will obviously disagree on certain issues?
Thirty years ago, I wrote a paper on better collaboration between the emergency services, covering the ambulance, fire and police services. I was wrong, because it should have included the coastguard—as a former shipping Minister, I would say that, wouldn’t I?
Let me say at the outset that I have much sympathy with some aspects of the provisions that have been tabled today. We may be able to look at some of them again and to bring back proposals in the Lords. However, I fundamentally disagree with others, because they would rip the heart out of the Bill—I am looking at the shadow Minister, the hon. Member for West Ham (Lyn Brown), who knows exactly what I mean.
Let me also say that I am enormously proud to be the first police and fire Minister, and that role is perhaps an indication of how seriously the Government take some of the concerns the fire service and the shadow fire Minister have. I actually gave up huge swathes of my policing portfolio, including responsibility for the National Crime Agency and organised crime, to other Ministers, so that I could take on this portfolio. The work has taken up a huge amount of my time—that is not just because of this Bill—because I have been on an enormously steep learning curve from when I was a fireman all those years ago. The job has changed, although some of the semantics and language have not. Some things have changed enormously fast, but some have not changed as fast as we would perhaps all like.
Because we have a fantastic fire service, there has been a decrease of 17% in fire-related fatalities and of 50% in reported fires over the past 10 years. I am concerned about the correlation between those two figures, and I have asked my officials to look at that. As the shadow Minister said, there is an increase at the moment. We should not take one year as an example, and there may be, very sadly, some one-off events. I vividly remember, as roads Minister, going to the terrible fire on the M5 following a road traffic collision where many people survived the RTC, got out of their vehicles, and sadly lost their lives to fire.
Bob Stewart
Friends of mine who are serving in the armed forces are finding it increasingly difficult to move into the police or the fire service. Could the Minister help in any way, because the training that the armed forces give to my friends is so important and should be utilised to make our police and fire services even better than they already are?
Mike Penning
This issue has been very close to my heart for some time. For instance, we have a real issue coming down the line with a shortage of heavy goods vehicle drivers, and yet some 40% of the armed forces leave with an HGV licence, as I did.
Many fire services around the country have not been recruiting recently, although I understand that some have started to recruit now, but the police are most certainly recruiting. The Metropolitan police have brought in the right policy of making sure that people serving in the police force in London can represent their community, so they come from the community they live in. When the commissioner first proposed this and said that it was the right thing to do, I said, “Be very careful, because you would have excluded me from joining the Met. Although I grew up in Edmonton, you would have said that I’d been away for five years and so would not be allowed to join the police force.”
The rule has been changed, and, quite rightly, the police force in London will now allow someone to join even if they have been in the armed forces for some time. This is a very important area, especially as the police are now recruiting extensively. Only the other day, I took the passing out parade at Hendon, with over 200 officers. I think that in excess of 2,000 officers are coming through training in London imminently.
Perhaps because of my background in the military and in the fire service, I understand that neither organisation likes change. I listened to the arguments made earlier about why there was opposition to PCCs possibly taking control of the fire service in a managerial way, in the same way as they took over from the police authorities. It is almost an identical argument that says, “What experience do they have? Surely it’s better that we let the councillors who have sat on the committee for 20 years, with all that experience, do it.”
The introduction of PCCs was fundamentally opposed by Her Majesty’s Opposition—I understand why—who had it in their manifesto to abolish them. They did not win the election for many reasons, not least because people such as Vera Baird and Paddy Tipping are excellent PCCs in their parts of the world. Vera Baird has absolutely transformed victim support in her part of the world, as have many others. I know the candidates up there will say, “You shouldn’t name names”, but actually we should give praise where it is due. There have been good independents. I want Conservative PCCs to win in every single seat, but we have to be pragmatic, and if others are elected, then let us make sure that we can work together.
My hon. and gallant Friend the Member for Beckenham (Bob Stewart) touched on the concerns about whether PCCs have the necessary experience. Some PCCs do have lots of experience within the police force, but that is not necessarily relevant. When the Prime Minister appointed me as shipping Minister, I said, “You do realise, Prime Minister, that my constituency is the furthest away from the sea in the whole country?” He said, “Yes, but you should question whether the way things have always been done is the right way.”
I use the example of armed guards on ships. When I arrived at the Department for Transport, we were having massive problems with Somali pirates. I simply said, “Why hasn’t the Royal Navy been able to do that job with the Marines—no navy in the whole world is more capable—and so allow people to protect their property?” So we convinced other countries and the International Maritime Organisation that we should allow that. I did not look at that from the perspective of a shipping person; I looked at it as an outside individual who was trying to say, “Let these people have an opportunity to do that.” That idea had been looked at by people who were much more experienced than I was in shipping, and it had been rejected on more than one occasion because it was not possible. I came in from the outside and said that it was possible.
Richard Drax
I am most grateful to the Minister for giving way. I think that he misunderstood me: I was not saying that a PCC should or should not be a police officer. Some are, and some are not. I was saying that I had concerns about the powers that they have to appoint and sack police officers, who may have had 25 or 30 years’ experience. I think that that role should be left to the Home Office and the Home Secretary.
Mike Penning
I understand where my hon. Friend is coming from. That is a bit of a different issue, and not part of what we are talking about. There is a disciplinary process to go through, which is now, quite rightly, transparent as a result of other measures in the Bill.
Amendments 3 to 6, tabled by Her Majesty’s Opposition, would decimate the PCCs’ role. I know exactly why the shadow Minister has tabled them, because we had a very similar debate in Committee. The shadow Minister knows full well that I will not accept them, and if she presses them to a Division, we will attempt to vote them down.
In principle, we completely agree with my hon. Friend the Member for Cannock Chase (Amanda Milling) on amendment 2. We need to do some work around it to ensure that it encapsulates titles other than the PCC, and we can work together on it before the Bill goes to the Lords, where we will introduce a Government amendment that will be very similar to amendment 2 but will be drafted in such a way as to make sure that no consequential issues arise.
Amanda Milling
May I press my right hon. Friend on that point? Is it the Government’s intention to table amendment 2, or an equivalent amendment, when the Bill goes to the other place? If I get that assurance, I will not press the amendment to a vote.
Mike Penning
If I had had the clearance today, I would have supported amendment 2, but there are issues on which I need to get clarification. We will introduce in the Lords basically what my hon. Friend is asking for, because it is important that the public understand exactly what they have got. Of course, the Bill will receive Royal Assent long after the elections. Some PCCs have, quite rightly, put in their manifestos now what they would like to see, but there is an issue about whether the title should include police, fire and rescue.
Jake Berry
I hope that the Minister will take the opportunity to deal with a point that I raised about the clause. Will he confirm that, before the Secretary of State makes a direction under secondary legislation, as envisaged by the clause, there will be wide consultation? Will he confirm that the Government will consult widely with the fire and rescue service, in particular, given the concerns that it has raised about maintaining not only its operational independence, but an element of independence in the eyes of the public?
Mike Penning
That is exactly what will be proposed. This is not one size fits all, and it will not be imposed, in that we would like an agreement locally. Clearly, that may not be possible in some parts of the country. Then it will be for the PCC to put a business case to the Home Secretary, and then we will go out to independent review when the consultation takes place. Fundamentally, we are not trying to interfere with operational firefighting and the operational police; this is more to do with dealing with administrative costs to save the moneys that we all know could be saved.
In Lancashire, for example, I met the chief constable and the PCC, and they told me that they were going to use some of the reserves to build a new police station in Blackpool. I said, “Fantastic news. I wondered what you were going to use the allocated reserves for. But you have had a conversation with the fire service as well, haven’t you? You cannot put a fire station into a police station, because the big red trucks do not fit in the foyer, but you most certainly can put a police station in a fire station.”
Jake Berry
To come back to my specific point about the clause, my question is: if this or a similar clause comes forward in the Lords, will there be wide consultation, especially with the fire service, before the Secretary of State gives direction about the national title to be used by police and crime commissioners? I would be grateful if the Minister could answer that question.
Mike Penning
It is vital that we get the title right and that there is a national title for those taking on those responsibilities. At the same time, there will be consultation not only with the FBU and the other unions and with the chief fire officers and their association, but with the chief constables and the Police Federation. The title will be with us for a long time. When I first joined the fire service—I think it was the fire service, not the fire and rescue service, at the time—I was, sadly, a fireman; I say that because in my time we did not have fire ladies. We were not called firefighters then. I think it is sad that that change did not happen many years earlier.
I want to touch on the issue of flooding. I was so impressed by our firefighters and ambulance crews, and by the local communities, volunteers, local authorities and police in areas where flooding took place. Flooding is becoming more and more a part of the fire and rescue service’s work. However, that is not new. There is a lovely place on the edge of Epping forest called Theydon Bois—it is in Essex, but quite close to east London, where the shadow Minister resides—where flash floods were a regular occurrence, and we used to go there. As a full-time firefighter, I regularly used to go there.
In Committee, I said that I would keep an open mind about the need to change the title to reflect areas of responsibility. In my opinion, this has nothing to do with money. Normally, I agree with nearly everything that the hon. Member for Vauxhall (Kate Hoey) says, but on this occasion, I do not. Her constituency is only partially affected by the Bill, because the Mayor has now taken over direct responsibility for the fire service in London—that had been called for for some considerable time—so I am not surprised that PCCs are not at the forefront of conversations when she knocks on constituents’ doors in her part of the world.
There are real benefits to come from the collaboration that can take place. I am not saying that no collaboration is now taking place, but much more can be done. In particular, there is more work to do with ambulance services, especially with the triage units on blue light vehicles. I will soon have the honour and the privilege to go to America to pay my respects at the site of 9/11 in New York. No policing and fire Minister has yet done that, which I think is a sad indictment. One of the main reasons why I want to go to New York is to look at its firehouses, as they are called. Another reason is the fact that paramedics are carried in the back of fire appliances, which we need to consider very carefully in this country.
Geoffrey Clifton-Brown
I have enormous sympathy with what my right hon. Friend is saying. It is absolutely clear that we need closer collaboration. However, in Gloucestershire we do not at the moment want the fire and rescue service to be put under the control of the PCC, so will he give us an assurance that it will not be forced to do so against its wishes?
Mike Penning
I cannot do so because that is not part of the Bill. The Bill provides for agreements where they can be made. Where no agreement can be reached, as will happen in many areas, the PCC can make a business case to the Home Secretary, if the PCC decides to do so; frankly, if there is so much opposition in Gloucestershire, the PCC might see the writing on the wall and decide not to do so. The business case will then go out to independent review, and only then will the Home Secretary make a decision.
I am enormously keen not to make this a one-size-fits-all provision. However, there has to be a backstop provision in case no one can reach an agreement and no one can move forward. In a perfect world, we would not be in a situation where we had to make it a statutory requirement to collaborate, but, frankly, collaboration in some parts of the country is not of the standard we would expect in the 21st century. We therefore need measures to take forward such collaboration.
Finally, amendment 21 is about the concordat. I have talked about that, and other bits and bobs, particularly with the hon. Member for North Durham (Mr Jones). I do not think it would be good to put that on a statutory footing—in other words, to make that law. The concordat seems to be working really well, so let us see how that evolves with these agreements. The shadow Minister did not refer to that, but it is relevant. We spoke about it in Committee and I will keep a really close eye on how the concordat works, but I do not think that at this early stage putting that into law is the answer .
I hope that I have alleviated the concerns of my hon. Friends. I hope, although I do not expect, that the Opposition have listened to the assurances that I have given, not only here but in Committee.
Mike Wood
Clearly, close collaboration is important not only for efficiency, but for the delivery of effective prevention work. Can my right hon. Friend give additional assurances that the revenue streams of fire services such as that in the west midlands will be protected, including for commercial activities?
Mike Penning
I have given categorical assurances in Committee and here that there will be two funding streams and that they will not be combined. Even so, whether it is a mayoral system or a PCC system, I would expect there to be better collaboration on how that money is spent. With that in mind, I hope that none of the amendments, none of which were tabled by the Government, will be pressed.
Madam Deputy Speaker (Natascha Engel)
I ask the Serjeant at Arms to investigate the delay in the Aye Lobby.
The Parliamentary Under-Secretary of State for the Home Department (Karen Bradley)
I beg to move, That the clause be read a Second time.
Madam Deputy Speaker (Natascha Engel)
With this it will be convenient to discuss the following:
Government new clause 32—Police volunteers: inspection.
Amendment 11, in clause 35, page 57, line 39, leave out subsection (1A).
This amendment removes the ability for volunteers to be given the powers of a Constable or Police and Community Support Officer.
Amendment 12, page 58, line 2, at end insert—
‘(2A) The chief officer of any police force may not place a volunteer in any role which requires the use of force or restraint.’.
This amendment would prevent volunteers being placed in roles which may require the use of force or restraint which should only be performed by officers and members of police staff.
Amendment 13, page 59, line 1, leave out subsection (9B).
This amendment removes the provision for volunteer PCSOs to be issued with CS spray and PAVA spray.
Amendment 10, page 59, line 31, at end insert—
‘(12) This section cannot come into force until the House of Commons approves a report under subsection 46(6) of the Police Act 1996 which guarantees no annual reduction in funding in real terms to local policing bodies in each financial year until 2020.’.
This amendment would guarantee that police funding would be protected in a police grant settlement approved by Parliament before proposals to grant additional police powers to volunteers can be brought forward.
New clause 1—Sale of knives and certain articles with blade or point to persons under eighteen: due diligence checks—
‘(1) The Criminal Justice Act 1988 is amended as follows.
(2) In section 141A, after subsection (4) insert—
“(4A) Due diligence serving to confirm the material facts in relation to a sale over the internet of with respect to the age of a purchaser must include, but is not limited to—
(a) age verification on delivery,
(b) online age verification, and
(c) offline follow up checks.
(4B) The Secretary of State must publish guidance, which the Secretary of State may revise from time to time, on how due diligence verification and checks under section (4A) are to be carried out.’.
This new clause provides a triple lock to ensure that knives are not illegally sold over the Internet to under-18s.
New clause 7—Amendments to the Firearms Act 1968—
‘(1) The Firearms Act 1968 is amended as follows.
(2) Omit section 5(1A)(f).
(3) Omit sections 5A(4), (5), (6), (7) and (8).
(4) Omit section 7(1) and insert—
“(1) A person who has obtained from the chief officer of police for the area in which he resides a permit for the purpose in the prescribed form may, without holding a certificate or authority under this Act, have in his possession a firearm and ammunition in accordance with the terms of the permit.”
(5) At the end of section 28A add—
“(8) Where an individual has applied for the renewal of a certificate before its expiry but the chief constable has not, as at the date of its expiry, determined whether or not to grant the renewal, the certificate is to continue to have effect until the application is determined.”’.
The new clause seeks to make a number of technical changes to the 1968 Firearms Act covering expanding ammunition, section 7 temporary permits and the renewal of firearms certificates in order to clarify the law and reduce the administrative burden on the police and shooting community.
New clause 8—Amendments to the Firearms (Amendment) Act 1988—
‘(1) The Firearms (Amendment) Act 1988 is amended as follows.
(2) In section 15(1) (Approved rifle clubs and muzzle-loading pistol clubs) omit the first “rifle” and for the second “rifle” substitute “firearm”.
(3) Omit section 15(2) and insert—
“(2) Any club may apply for approval, whether or not it is intended that any club members will, by virtue of subsection (1) above, have firearms subject to section 1 or ammunition in their possession without holding firearm certificates.”
(4) Omit section 15(4) and insert—
“(4) The application of subsection (1) above to members of an approved club may—
(a) be excluded in relation to the club, or
(b) be restricted to target shooting with specified types of firearm, by limitations contained in the approval.”
(5) In section 15(7) omit “rifle”.
(6) In section 15(10) omit the first “rifle”.
(7) Omit sections 15(11) and (12).’.
The new clause allows a club to be approved for any type of Section 1 firearm so that if a person using a shotgun or long-barrelled pistol is taken ill, or the firearm malfunctions, another authorised person can legally ‘possess’ (handle) that firearm to assist and/or make it safe.
New clause 9—Authorised persons permitted to lend firearms—
‘(1) In the Firearms Act 1968, omit section 11(5) and insert—
“(5) A person may, without holding a shot gun certificate, borrow a shot gun from the owner or occupier of private premises or a person authorised by the owner or occupier and use it on those premises in the presence of the owner, occupier or authorised person.”
(2) In the Firearms (Amendment) Act 1988, omit section 16(1) and insert—
(a) the owner, occupier or authorised person in whose presence it is used holds a firearm certificate in respect of that rifle; and
(b) the borrower’s possession and use of it complies with any conditions as to those matters specified in the certificate; and
(c) where the borrower is of the age of 17, the owner, occupier or authorised person in whose presence the rifle is used is of or over the age of 18.”’.
The new clause would clarify the law as regards who can lend a shotgun or rifle to another person. This addresses the uncertainty currently caused by the term ‘occupier’ in relation to the borrowing of a shotgun or a rifle by a person without a certificate.
New clause 19—Events, festivals and gatherings: control of flares and fireworks etc.—
‘(1) A person is guilty of an offence if he has an article or substance to which this section applies in his possession—
(a) at any time during the period of a qualifying event, festival or gathering when he is within the venue or in any area from which the event, festival or gathering may be directly viewed or physically accessed, or
(b) while entering or trying to enter a venue or area defined in paragraph (1)(a) at any time during the period of the qualifying event, festival or gathering, or
(c) while travelling by any means towards a qualifying event, festival or gathering with the intent to enter a venue or area as defined under paragraph (1)(a).
(2) It is a defence for the accused to prove that possession is with lawful authority.
(3) This section applies to any article or substance whose main purpose is the emission of a flare whether for entertaining, illuminating or signalling (as opposed to igniting or heating) or the emission of smoke or a visible gas or a noise intended to simulate an explosion; and in particular it applies to fireworks, distress flares, fog signals, and pellets and capsules intended to be used as fumigators or for testing pipes, but not to matches, cigarette lighters or heaters.
(4) The Secretary of State may be regulations define or amend—
(a) a “qualifying event, festival or gathering”,
(b) a “period of an event, festival or gathering”,
(c) a “venue or area from which the event, festival or gathering may be directly viewed or physically accessed”, and
(d) articles and substances falling under subsection (3).
(5) The power to make regulations under subsection (4) shall be exercisable by statutory instrument but such an instrument may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.
(6) A person guilty of an offence under this section shall be liable on summary conviction—
(a) in the case of an offence under subsection 1(a) or (b) to a fine not exceeding level 3 on the standard scale or to imprisonment for a term not exceeding three months, and
(b) in the case of an offence under subsection 1(c) to a fine not exceeding level 2 on the standard scale.
(7) Nothing in this section shall apply to persons, articles or substances that are lawfully present at, entering, travelling to, or being transported towards, a qualifying event, festival or gathering by virtue of being a planned part of the event, festival or gathering under the responsibility, regulation and control of the organisers.’.
New clause 21—Firearms: Full recovery of the licence costs—
‘(1) The Firearms Act 1968 is amended as follows.
(2) At the end of section 53 insert—
“(4) The Secretary of State must set the sum payable at the full cost to the tax payer of issuing a licence.”’.
This new clause would help to ensure full costs recovery of the licencing of guns.
Amendment 7, in clause 106, page 115, line 22, leave out “the amount of any fee that may be charged” and insert
“that the fee charged must be equal to the full cost to the tax payer of issuing a licence.”
This amendment would help to ensure full costs recovery of the licencing of guns.
Amendment 8, page 115, line 41, leave out
“the amount of any fee that may be charged”
and insert
“that the fee charged must be equal to the full cost to the tax payer of issuing a licence.”.
This amendment would help to ensure full costs recovery of the licencing of guns.
Amendment 9, page 116, line 19, leave out
“the amount of any fee that may be charged”
and insert
“that the fee charged must be equal to the full cost to the tax payer of issuing a licence.”.
This amendment would help to ensure full costs recovery of the licencing of guns.
Amendment 1, in clause 107, page 117, line 14, at end insert
“and
(c) other relevant stakeholders.”.
This amendment would require other relevant stakeholders to be consulted in drawing up statutory guidance to the police. The current non-statutory guidance involves consultation between the Home Office, police, shooting organisations and others and all existing parties, not just the police, should be accommodated within the new statutory framework.
Government amendment 62.
New clause 17—Alcohol abstinence and monitoring: cost recovery—
‘(1) The Criminal Justice Act 2003 is amended as follows.
(2) In section 212A, insert at the end of subsection 7(b)—
“(c) arrangements for recovering the cost of testing from the offender by the police.”’.
This would allow the Secretary of State to include to make provision for the police to charge an offender subject to an alcohol abstinence and monitoring requirement for the costs of testing their compliance with such a requirement.
Karen Bradley
At this stage I will speak to the Government new clauses and amendment, and I will respond later to the points that are made about other amendments.
Chapter 1 of part 3 will enable chief officers to designate police staff with a wider range of police powers. They will also be able to confer police powers, other than the core powers reserved for warranted officers, on volunteers. The intention is that the powers that can be conferred on employed staff and designated volunteers are the same. This includes the power to carry and use defensive sprays, such as CS gas and PAVA spray, where the chief officer considers that there is an operational case for this. It is already the case that chief officers can equip police community support officers with defensive sprays, and to that extent the Bill codifies the existing position.
New clause 31 makes necessary consequential amendments to the Firearms Act 1968 to ensure that police volunteers are civilian officers for the purposes of that Act. The effect is that they do not then need a certificate or authorisation under section 1 or 5 of the 1968 Act in order to carry a defensive spray.
Andrew Gwynne (Denton and Reddish) (Lab)
I understand perfectly what the Minister is trying to do here, but I am not sure that there is a consensus out there for volunteers to be equipped with CS gas, for example. Does she understand the concern that the public have about that?
Karen Bradley
If the hon. Gentleman had been part of the Committee, he would have heard the extensive deliberations and debate that we had about that issue. In my response to the amendments later, I will come to the specific point about volunteers. I would like to hear the arguments before I respond, but I am aware that there are concerns, although I may not agree with them.
The new clause puts community support volunteers and policing support volunteers in the same position as police officers and police civilian staff. We are also taking the opportunity to make it explicit on the face of the 1968 Act that special constables are members of a police force for the purpose of that Act and therefore similarly do not require a certificate or authorisation under the 1968 Act when equipped with a defensive spray. This will avoid any doubt being created by the insertion of a specific reference to policing support and community support volunteers within the meaning of “Crown servant” in the Firearms Act.
Bob Stewart
I am sure the Minister will give an affirmative answer to my question. Can she confirm to people listening that anyone issued with such sprays will be fully trained in their use and that the sprays will not just be handed out?
Karen Bradley
My hon. and gallant Friend makes an important point and I can assure him that appropriate training will be given.
Government new clause 32 clarifies that designated community support volunteers or police support volunteers may be subject to inspection, just like any other member of a police force, and can be served with a notice requiring information or access to premises. As with other members of a police force, they would have no right of appeal against such a notice.
As I said, I will respond to the other amendments in this group when winding up the debate.
Jack Dromey
May I start by giving the apologies of the shadow Home Secretary, my right hon. Friend the Member for Leigh (Andy Burnham), as to why he cannot be here today? He is at the Hillsborough inquest. Twenty-seven years ago a terrible wrong was done. Ninety-six husbands, wives, fiancés, brothers, sisters, sons and daughters died. The fact that today justice was done is due both to the remarkable persistence of the families to ensure justice for those who died, and to the outstanding leadership of my right hon. Friend who, in his courage, persistence and championing of a noble cause, has served the people not just of Liverpool, but of this country well.
We welcome many of the proposals before the House today, which follow our exchanges in Committee. I do not intend to speak to them all in detail. We welcome the move on pre-charge bail to prevent terrorists, such as Dhar, from ever fleeing the country before charge. We welcome the protection of police whistleblowers. We welcome moves to improve the way that the police deal with people suffering a mental health crisis, such as no longer considering a police cell to be a place of safety. We welcome moves to ensure that 17-year-olds detained in police custody are treated as children, which is something my hon. Friend the Member for Rotherham (Sarah Champion) has fought very hard for.
We support changes to the Fire Arms Act 1968 that will tighten our gun laws in line with recommendations made by the Law Commission. We support the duty on emergency services to collaborate. We will deal with many of these issues in some detail on the second day on Report. We also welcome moves made by the Government on other issues that emerged during our consideration of the Bill. For example, agreement has been reached following the excellent campaign run by David Jamieson, the police and crime commissioner for the west midlands, on the banning of those hideous zombie knives, whose only purpose can be to kill or maim.
However, given that the Bill purports to complete police reform, I am bound to say that there are a number of issues that should have been in the Bill but are not. The Bill does not help the police to adapt to a world in which crime is changing and moving increasingly online. There is a gaping hole in the Government’s policing policy on the failure to tackle—or even to acknowledge in the Bill—cybercrime, or to help the police deal with the consequences of the Government’s swingeing spending reductions. On child sexual exploitation and abuse, although the one clause is a welcome step, for a Bill that purports to be focused seriously on this grotesque manifestation of all that is worst in our country, one clause alone is not enough. The Bill does not go far enough on some of the issues it seeks to address, such as police accountability, but we will return to some of those on day 2.
Having spelled out those areas of the Bill that we agree with, I am bound to say that there are critical areas with which we fundamentally disagree. We have just had a debate, led by my formidable hon. Friend the Member for West Ham (Lyn Brown), opposing the compulsory takeover of fire authorities by PCCs. Our strong view, as she indicated, is this: yes to greater collaboration; no to hostile takeovers that take place regardless of what local elected representatives and local people think.
The other highly controversial proposal that we are debating today is about giving police powers to volunteers. Let me make it absolutely clear that there is a long and honourable tradition going back 150 years of special constables. There is a more recent tradition, but one that is profound within the communities we serve, of volunteer engagement in neighbourhood watch. For example, the admirable Maureen Meehan, chair of the Stockland Green neighbourhood watch in my constituency, does outstanding work to ensure that the community is safe, working with the police. Indeed, in this House we have the police parliamentary scheme. My hon. Friend the Member for Merthyr Tydfil and Rhymney (Gerald Jones) has had a fascinating insight into policing in the Met and in south Wales, and subsequently he has waxed lyrical about the work he has seen, for example on mental health, but also working with volunteers.
We are strongly in favour of enhancing citizen engagement and voluntary efforts. As the great Robert Peel said,
“the police are the public and the public are the police”.
Therefore, the role of the citizen in policing is key. But the public demand that police functions are discharged by police offices, which is essential. We are extremely concerned that the proposals contained in the Bill are an attempt by the Home Secretary to provide policing on the cheap.
Andrew Gwynne
My hon. Friend hits the nail on the head. Most people outside Parliament will see through this, because they are seeing the number of police officer and PCSOs in their own neighbourhood policing teams cut, and the Government are proposing to hand those powers to civilians.
Jack Dromey
My hon. Friend is exactly right. In all the surveys of public opinion about the visibility of the police over the past couple of years, the public have complained more and more that they no longer see their police officers or PCSOs, that they no longer have contact with them, that the police no longer have roots in the community and that neighbourhood policing is being progressively hollowed out. People want neighbourhood policing—the bedrock of British policing—to be rebuilt, but not using volunteers.
Kit Malthouse (North West Hampshire) (Con)
I understand the point the hon. Gentleman is making, although I do not agree with him. Does he accept that there are circumstances in which we all have police powers? If I witness somebody committing what I consider to be an indictable offence, I am able, as a citizen, to arrest them without a warrant. Does he agree, therefore, that if we are going to have volunteers among the police—unless he wants to do away with them completely—they should at least be trained? If they then find themselves in a situation of danger where they may have to act as a police officer, they can do so, perhaps using purely that power of citizen’s arrest?
Jack Dromey
The problem is that the Government have failed to spell out how they will ensure that these volunteers are properly trained and properly accountable, or how there will be clarity about their role—as I will say later, the Government have ruled out nothing in terms of the role volunteers might play in the next stages. The hon. Gentleman will no doubt want to come back on that issue, but on the particular point he raised, perhaps he will wait until I get to the relevant part of my speech.
Antoinette Sandbach
The Labour-run Welsh Government have funded community support officers, who perform a very similar role to the one proposed. What is the distinction? Would the hon. Gentleman’s proposals not prevent the use of such community support officers?
Jack Dromey
I am very familiar with what has happened in Wales. All credit to the Labour Government in the Welsh Assembly for funding 500 PCSOs. I was in south Wales but two weeks ago, and I met some of the PCSOs concerned—in south Wales alone, there are 200 PCSOs on the beat, which is very popular with the public. However, they are employed by the police service; what is being proposed here is a new generation of volunteer PCSOs. As I will say later, the issue is not just training and accountability, but that volunteers will be able to use certain powers—I am thinking particularly of the issue of CS gas, and I think the public will be incredulous when it becomes clear exactly what the Government propose.
Vera was right, and no wonder. In the last five years, Government funding to police forces has seen the biggest cuts to any police service on the entire continent of Europe—a staggering 25% cut. For that five-year period, the Government’s alibi was, “Yes, we cut the police, but we also cut crime.” It is not true that they have cut crime. The statistics on police recorded crime, increasingly cleaned up over the past couple of years following criticism from this House, among others, show violent crime up by 27%, homicides up by 11%, a 9% rise in knife crime, and overall police recorded crime up by 7%. The Government continue to rely on the crime survey for England and Wales, but that does not include a whole number of areas of crime. In two months’ time, when cybercrime and online fraud is included in the crime statistics in the crime survey for England and Wales, it will show crime nearly doubling.
Karen Bradley
I hope that the hon. Gentleman, for whom I have a great deal of respect, is not confusing reported crime with the prevalence of crime. The independent crime survey for England and Wales is very clear that prevalence of crime is down but the reporting of crime is up. I hope that he would welcome the fact that we have more reported crime, because it is only by getting those reports of crimes that the police are able to solve them.
Jack Dromey
I agree that proper reporting and recording have been absolutely key—for example, in relation to sexual offences. However, in saying, “We cut the police but we have cut crime”, the Government have relied on the crime survey for England and Wales, where the projections, including those from the Office for National Statistics, are that when online fraud and cybercrime are included, there will be a potential increase of 5 million offences, nearly doubling crime. Therefore, with the greatest respect to the Minister, for whom I have great respect, the alibi of five years will be blown apart.
Karen Bradley
Does the hon. Gentleman agree that such crime was happening before but was not included in the crime survey under the previous Labour Government, that this Government are making sure that it is included, and that we need to be honest about prevalence so that we can tackle the problem?
Jack Dromey
If I agree that it should have been included in the past, I hope the Minister will agree that in future never again will I hear the Government say, “We’ve cut crime.” Crime is not falling; crime is changing.
Sir Edward Garnier (Harborough) (Con)
This is all very interesting, but surely the central point of the hon. Gentleman’s argument is that clause 35 should be deleted, full stop. All these pussy-footing little amendments that he has tabled are really designed to undermine the concept of the volunteer. He disagrees with the concept of volunteers; the Government clearly think they are a good thing. Why does he not just speak to that argument rather than wasting our time with amendments 11, 12 and 13, which are actually designed to make it difficult for someone to perform the function of a police volunteer?
Jack Dromey
With the greatest respect, I would not downplay the significance of this, including to the public out there whom we serve. We will come specifically to two issues relating to amendment 10, on volunteers, and amendment 13, on volunteer PCSOs being able to carry CS gas and PAVA spray.
It is simply not true that crime is falling. Nor is it true that the Government have protected the frontline. The Policing Minister has been good enough to acknowledge that he inadvertently misled Parliament by suggesting that. Nor is it true that police funding has been protected. Last November, the Chancellor of the Exchequer said:
“The police protect us, and we are going to protect the police.”—[Official Report, 25 November 2015; Vol. 602, c. 1373.]
Sir Andrew Dilnot has now made it clear that a £160 million cut, in real terms, in this financial year alone would be sufficient for 3,200 police officers. The inconvenient truth for the Government is that 18,000 officers have gone and ever fewer are doing ever more, just when demand is growing. Coming to the point made by the right hon. and learned Member for Harborough (Sir Edward Garnier), that is crucial in this respect: given the context in which this Bill has been introduced, our amendment 10 would block proposals to grant additional police volunteers until the Government have passed a police funding settlement that guarantees that funding to police forces will be protected in real terms. The Government said that it would be protected last November, but that is not true. We ask that it now be the case, rather than the phoney police promise that we heard from the Chancellor of the Exchequer last November.
Antoinette Sandbach
I am aware of the hon. Gentleman’s experience of south Wales and his knowledge of the cuts made to South Wales police by the police and crime commissioner. If he comes to Cheshire, he will see that there have been increases on the frontline in my constituency, where there is a Conservative police and crime commissioner. If he goes to mid-Wales, he will see that there have been increases on the frontline in Dyfed-Powys, where there is a Conservative police and crime commissioner. Surely, the two are not linked.
Jack Dromey
The interesting thing about what the hon. Lady says is that the current police funding formula skews funding away from metropolitan areas towards leafy Tory shires. Why is the west midlands hit twice as hard as Surrey? If we ask the police and crime commissioner for Surrey, we find that he agrees. To add insult to injury, the Government finally said, “We admit that the formula is unfair. We will change the formula,” which led to the omnishambles before Christmas when they had to abandon the proposed changes to the formula.
Sir Edward Garnier
I have been listening with deep fascination to the hon. Gentleman for the last 15 minutes or so, but he is yet to come to amendments 11, 12 or 13. Are there any arguments in support of those?
Jack Dromey
Absolutely. Under the current arrangements in the police service, there is an agreement between the Home Office, the National Police Chiefs Council, the College of Policing and the police staff unions that police support volunteers should bring additionality to the workforce but should under no circumstances replace or be a substitute for paid police staff. The Government claim that they have protected police funding and that they are not using the provisions to plug holes left in the workforce from funding reductions. If plugging gaps in our hollowed-out police service is not the Government’s aim in these ill-though-out proposals, there should be no reason whatsoever for them not to support amendment 10.
Kit Malthouse
The hon. Gentleman needs to realise that he is walking into a cul-de-sac, which may not be of his own making. Independent custody visitors are essentially police volunteers who visit custody suites, and a case could probably be made by a smart lawyer that they substitute for custody officers in their supervisory role. Are they the kind of people that he wants to get rid of?
I urge the hon. Gentleman to listen to my right hon. and learned Friend the Member for Harborough (Sir Edward Garnier). We have a duty in this House not to create Heath Robinson legislation. Amendments 11, 12, 13 and 10 seem to me to be an extraordinarily roundabout way to disagree with what the Government are trying to do through the previous amendments. Surely the hon. Member for Birmingham, Erdington (Jack Dromey) should simply vote against those amendments, rather than creating this Byzantine structure to negate what the Government are trying to do.
Jack Dromey
It is quite right, for reasons that I will come to, that those amendments have been tabled, but the amendment that we will press to a vote is amendment 10. As I have just said, the Government should not plug gaping gaps in the police service with volunteers; the police service should be properly funded in real terms. Not until that happens should the Government proceed with their proposals for a new generation of volunteers—for whom, as I will come on to say, there are no constraints thus far on what they might be able to do.
I turn to exactly that point: the proposal that there should be no limits in law on where the chief constable can place volunteers—no limits on the operational role that volunteers might play, including in some of the most vital, sensitive and demanding areas. The public will be rightly dismayed by the Government’s refusal to rule out the use of volunteers in tackling child sexual exploitation, terrorism and serious crime. There has been no clarity in the Government’s proposals thus far about the role that volunteers should play in those areas. We have asked for clarity, but none has been forthcoming.
I now turn to accountability in relation to volunteers. Under the Bill’s provisions, when police officers and special constables have been dismissed following disciplinary proceedings, their details will be added to the barred list held by the College of Policing, and chief officers will not be able to appoint anyone on the list as an officer, a member of police staff or a special constable. However, the Bill does not provide for volunteers dismissed for misconduct to be added to the barred list, which is why we sought to amend the Bill in Committee. Will the Minister explain what mechanisms are in place to ensure that volunteers who abuse their powers cannot serve again?
Andrew Gwynne
My hon. Friend is being generous in giving way. Does he not also suspect that, perhaps as an unintended consequence, this might place volunteers in very risky situations?
Jack Dromey
That is absolutely right. I will mention something similar in a moment. If we have volunteers—I again stress that there is a long and honourable tradition of volunteers working in and with our police service—we must, to be frank, go the extra mile to ensure that they are not subject to risk or harm. If they are ill-trained and there is no framework of accountability, issuing them with CS gas and leaving them to get on with it might lead to very serious consequences indeed, not just for members of the public but for the volunteers themselves.
Bob Stewart
Forgive me; my experience is not with the police, but I know very well that the police service, just like the armed services, would not issue CS gas or the like without very strict controls and very strict training. I am quite sure that volunteers would not be given any less training in the use of such chemicals in pursuit of their duty.
Jack Dromey
As the hon. Gentleman knows, I used to be chairman of the defence unions. I am proud of my long association with members of our armed forces, of which he was an admirable example. It is extraordinary—I have given some reasons for this, and I will come on to others—that there is no clarity about training and accountability. A proposal has simply been inserted in the Bill for volunteer PCSOs to be issued with CS gas and PAVA spray, which raises fundamental issues of concern. I suspect that if this was raised with members of the public in the hon. Gentleman’s constituency, they would say, as was the case in Hove and in my constituency at the weekend, “What planet are they living on?”
Sir Edward Garnier
If I can just bring the discussion back to this planet, I accept that the Labour party does not want volunteers to be able to enter our police system in the way proposed by the Bill, but where on earth does the hon. Gentleman get that idea? I hope he is just making it up as he goes along, because if he has thought about his arguments I am even more worried than I was a moment ago. Where in the Bill does it say that anybody is going to be handed a noxious substance such as CS gas or the other spray without adequate training? It defies belief that anyone with common sense would advance that argument, and it is even less likely that a consequence of the measure would be that they would not get that sort of training. It is just bananas.
Jack Dromey
The right hon. and learned Gentleman should put that question to his Front-Bench colleagues so that the concerns he has just expressed can be allayed. The concerns raised during detailed scrutiny of the Bill in Committee were heard but not acted on, and that is precisely why we are having this debate today.
On the principle of volunteers in the police service, I went out of my way to say at the beginning of this debate that there is a long and honourable tradition of excellent men and women serving as special constables and in neighbourhood watch teams. Had we won the election in May 2015, we had plans to enhance the role played by local people in having a local say over the policing of their local communities, including greater volunteering and co-operation with the police. The question is where we draw the line on what is and what is not appropriate. Perhaps I could visit the right hon. and learned Gentleman’s constituency and we could ask the first 100 people we meet, “What do you think of volunteer PCSOs being able to carry CS gas?” I suspect that I know the answer we would get.
Sir Edward Garnier
That, I respectfully suggest, is not a very clever question, because it is loaded to produce the answer that the hon. Gentleman wishes to receive. He is very fond of other volunteers, but he does not like clause 35 volunteers. If I asked anybody in his constituency or in mine, “What do you think about untrained people carrying shotguns, police weapons or CS gas?”, of course they would say that that was not very sensible, but the question removes reality from the practical application of the Bill. No volunteer within the ambit of clause 35 is going to be walking around Market Harborough, still less the hon. Gentleman’s own constituency, without having been properly trained in the use of the materials, weapons or instruments to which they will be given access. That is just plain silly, and I wish he would move on to something rather better.
Jack Dromey
I agree it is plain silly that the right hon. and learned Gentleman’s Front-Bench colleagues have not answered those questions. When they speak today and during the Bill’s subsequent stages, I have no doubt that he will pose those questions and say, quite rightly, that it would indeed be silly for something to happen without proper training or accountability. At the moment, for the reasons I have spelled out, that just is not in the Bill.
Antoinette Sandbach
Traditionally, matters such as training are not put in legislation, but that does not mean that they do not happen. There is no requirement to include training in the Bill, but it still goes on.
Jack Dromey
With respect, I disagree with the hon. Lady. If we look at the training received by the police, PCSOs and police staff, we see that there is guidance and that an agreement has been reached. The existing framework is very helpful, but as the Bill stands there is nothing for the new breed of volunteers that the Government seek to introduce. The hon. Lady might want to put that question to her own Front-Bench colleagues.
It is our very strong view that the use of CS gas and PAVA spray should be undertaken only by officers who are regularly trained in their usage and, importantly, in the law surrounding their use. In the words of Vera Baird:
“We have lost 861 police officers and 940 police staff since 2010 through government cuts which can’t be replaced by volunteers”.
She also said:
“many volunteers want to support the work of police officers—not to do their jobs for them. The use of CS gas and PAVA spray is something that should only be undertaken”
by sworn officers,
“who are regularly trained on their usage and importantly in the law surrounding their use”.
She is absolutely right. She went on:
“Rather than extending the role of volunteers, the Government needs to start funding police forces properly, to allow Chief Constables and Police and Crime Commissioners to recruit more police officers, who can go on the beat and serve local communities.”
The Government need to have a proper conversation with the police and the public about what they see as the acceptable use of force by volunteers, in a context in which institutions such as the Independent Police Complaints Commission have already raised serious issues about the use of force by fully trained warranted officers. With regard to that proper conversation, only today we received a briefing from the National Council for Voluntary Organisations, which has already said about the proposals in the Bill that
“the development of volunteering in policing needs to be driven by a clear vision and strategic direction”
and that the Government have not fully articulated
“what role the reforms will play in moving towards a different and improved model of policing beyond how it may offer forces greater flexibility and reduce costs.”
To return to the proposal on CS and PAVA, our police service has and needs the power to use force where necessary when carrying out its duty to protect the public. It is clear that the public understand that, and indeed, expect and rely upon it. However, under the UK’s tradition of policing by consent, they also expect that those who use force will be properly trained and qualified, and there will be proper accountability. The Government simply have not made the case for the proposal and we will therefore be voting against it.
I hope that, even at this late stage, the Government will listen to, for example, Winston Roddick, the chair of the Association of Police and Crime Commissioners, who said about the proposal:
“I have serious reservations about it... I think that the proposal raises points of principle about arming members of the public to do something by the use of arms, which goes further than the common law principle of acting in reasonable self-defence.”––[Official Report, Policing and Crime Public Bill Committee, 15 March 2016; c. 51, Q67.]
Bob Stewart
The hon. Gentleman—he is actually a friend of mine—and I both know that we arm members of the public in our reserve forces. With training, they do exactly the same on operations as any normal regular soldier, and they are sent on operations into really dangerous positions.
Jack Dromey
I am very familiar with what the hon. Gentleman has said. I am proud to have many friends who are reserves; they play a very important role in the armed forces. Crucially, they are properly trained and equipped, and work within a framework of accountability. That is exactly what has not been proposed—or at least spelled out—by the Government for volunteer PCSOs. That is precisely what we are seeking to draw out, and for that reason we will be voting against the Government’s proposals.
I will say one final thing on volunteering before I move on briefly to other provisions in the Bill. I return to what the NCVO has said; to be frank, it has captured our concern:
“The proposed approach to volunteering, through the creation of volunteer positions that are ‘equivalent’ to or ‘mirror’ paid roles, risks misunderstanding the nature of volunteering and the full contribution it can make. Rather than the language of equivalence we hope the government will recognise this and start to reflect a language of distinctiveness and complementarity. This will help ensure a more successful police volunteering programme.”
The NCVO is absolutely right that the Government have, in this respect, simply got it wrong.
I turn now briefly to other issues dealt with in Committee by my formidable colleague, my hon. Friend the Member for West Ham. Our new clause 21 and amendments 7, 8 and 9 would help to ensure full cost recovery of the licensing of guns. That is a crucial objective of the Gun Control Network. It is also a goal that the Government profess that they wish to achieve. In Committee, the Minister for Policing, Fire, Criminal Justice and Victims told us:
“We are as one on the fact that the taxpayer should not subsidise licensing.”––[Official Report, Policing and Crime Public Bill Committee, 12 April 2016; c. 259.]
We will hold him to his words, and so look for an assurance on when the Government will move to full cost recovery. We note that some forces are already moving in that direction. It cannot be right that an overstretched police service that has lost 18,000 police officers and 5,000 PCSOs should have to subsidise gun licences, and we look forward to the Minister’s response on that. He says that the e-commerce scheme will deliver full cost recovery, but we will see. Are we moving to full cost recovery, and when will that be achieved?
Several hon. Members rose—
Kit Malthouse
What an honour it is to be called before all these august Members!
In respect of amendments 11, 12, 13 and 10, I congratulate the hon. Member for Birmingham, Erdington (Jack Dromey) on manfully—or indeed womanfully—arguing what seems to be a lost cause; Conservative Members eloquently made the case that the proposals are nonsense.
Fundamentally, the hon. Gentleman is saying through his amendments that he does not trust a chief police officer to get right the architecture around volunteers used in their organisation. He is saying that a chief constable cannot be trusted to organise and train volunteers correctly—but if they cannot be trusted to do that relatively simple task, how can they be trusted to handle some of the risks that they face on a daily basis, even with their warranted force? As he considers these matters over the next couple of hours, I urge him to think about withdrawing his amendments and simply to vote against the Government’s amendments if he believes that to be right. His would be Heath Robinson legislation, as I said, and the House has a duty to keep things simple.
I am extremely supportive of new clause 1. As the hon. Gentleman said, the proliferation of knives, particularly these unpleasant zombie knives, has caused a huge problem, particularly in urban areas and especially in London. We have seen some tragic cases over the last two or three years. A while ago, as people will remember, there was some alarm about air rifles and air-powered weapons; as a result, the legislation on purchasing air rifles was changed so that they could not be bought other than face to face. Now, when someone buys an air rifle online, it has to be delivered by the firearms dealer, who has to verify, face to face on the doorstep, that the person is who they say they are and of the correct age, and that the weapon can be sold to them lawfully. Alternatively, there is a mutual network of firearms dealers operating in such a way that someone can buy from one and pick up from another, who will verify that person’s identity and age.
I am 6 feet 2 inches—nearly—and quite a big chap. I am much more frightened of zombie knives than of air rifles, so I urge the Government to look carefully at new clause 1. It would be a valuable addition to our armoury as we try to keep these weapons out of the hands of people who should not have them. Having said that, I do not think it would be a silver bullet—not much we do in the House is; many of these knives are bought on the dark web, where things are a little more amorphous, identities more difficult to find and things are often posted illegally. Many firearms are bought on the dark web and sent to the UK through the normal post, but the police are becoming quite sophisticated at picking them up, and the same could be true of knives. I therefore urge the Government to adopt the new clause.
I am similarly supportive of new clause 19, on flares at public events. They are not allowed at football matches any more, but elsewhere they often cause injury and terror—people, particularly children, are frightened of them—so it would be sensible to outlaw their use in those circumstances.
Finally, I will speak briefly—we are pressed for time—to new clause 17, which stands in my name. This is a probing amendment, as they say, and I have no intention, at this stage, of putting it to a vote, but I will give Members the back story because it might well appear in the other place.
Members might remember that three or four years ago City Hall ran a big campaign to get a disposal on to the books called “compulsory sobriety”, which manifested itself as alcohol abstinence monitoring orders made against people who have committed a crime where alcohol was a contributory factor. Essentially, an offender, rather than going to prison, which would mean losing their job and contact with their family, is sentenced to wear an alcohol-testing tag or bracelet that, for three, four or six months, tests their skin every 30 seconds to make sure they are not drinking. If they drink and the tag detects it, a signal is sent, the police apprehend them and they go back into the criminal justice system and might well get a custodial sentence. Effectively, the offender is in charge of their own custody.
These orders have been hugely successful in the United States. In South Dakota, where they started, there has been massive compliance and a drop in the number of people arrested for drink-driving and dying on the roads. I learned this morning that there has also been an increase in life span because there is less drinking. South Dakota is a big, flat state; there is not much to do except drink a lot and beat each other up, as in parts of this country. That was happening an awful lot, until these orders were introduced by the now famous prosecutor, Larry Long. They have changed the alcohol environment there entirely.
We managed to get the orders on the statute book here, and a pilot in Croydon over the last couple of years has resulted in a 93% compliance rate among offenders fitted with a tag and an extremely good reoffending rate—once someone has had three to six months off the booze, they do not tend to go back but instead learn the error of their ways. However, there is one aspect of the scheme in the states that we did not adopt but which they think is critical to its success: the ability to charge offenders for their own testing.
In the United States, when somebody is put on this disposal and they go to be tested, more often than not they appear twice a day at the police station, blow into a breathalyser and pay a buck, or a dollar, a test. Effectively, that is money that they would otherwise have spent on booze. From the point of view of the criminal justice system, that makes the scheme self-financing.
Sir Edward Garnier
I can see that my hon. Friend is on to a good thing here. As someone who has not sentenced anyone to this type of order but has sentenced people to the drug testing orders under the Criminal Justice Act 2003, I would like to ask whether this should be a compulsory requirement. Is it that the police “must” or “may” charge? If it is the former, I think my hon. Friend will find that many people who fall into this sentencing remit will be so chaotic, at least to start with, that they will not have the finances to be able to reimburse the state for the charge.
Kit Malthouse
My right hon. and learned Friend makes a valid point. However, these people are somehow financing an alcohol habit, so they are paying for alcohol. I think my right hon. and learned Friend would be surprised at the demographic of offenders. In the US, this was more often used for repeat drink-driving than anything else. In this country, repeat drink-driving is predominantly a crime of white, middle-aged, professional men; it is they who get done most for this offence. One hopes that they would indeed be able to afford to pay the cost.
My right hon. and learned Friend is, however, right that the proposal is that the police “may” charge. They do not have to. If a PCC believes it would be useful, they could apply to the Home Secretary to run a scheme on a charging basis and then decide on the charge. It might be 50p a day, a pound or £3—who knows? It will depend on the area and the level of offences committed.
Having this particular power adds two critical things to the scheme. First, one of the successes in the US is that the scheme gives offenders the notion that they are in control of their destiny. Every time they reach for a drink, they have to think about the consequences. That is why there is such high compliance—because people feel they are in control. At the same time, having to pay provides an even greater sense of ownership of the disposal. Offenders understand that this is a punishment; they understand that they have to take responsibility and finance the scheme themselves. It is essentially “the polluter pays”.
Secondly, although this disposal has been wildly successful in London and has spread to the rest of the capital, it took a lot of up-front Government funding to get the scheme out there. The Ministry of Justice had to put in £500,000 and the Mayor has done the same to get the facilities out and around town. If we want the disposal to spread so that other PCCs take it up, there needs to be a business case. Bluntly, I am a Conservative, and if there is a flow of income coming from this disposal to a PCC in a way no other disposal will allow, I believe PCCs would be more likely to use it and invest the money up front; they would know that the income would come in to finance it.
I realise that offenders paying for their own punishment would be a new departure for the British criminal justice system, but I think it could be useful given that alcohol abstinence monitoring orders are themselves a new departure. There may be some cultural difficulties. When I first proposed the disposal, I went to see my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke), who was then Lord Chancellor. His first response was to say, “Good grief, you can’t stop people from having a pint!” I explained that if these people break somebody’s jaw or cause a crash because they have been driving drunk, of course we can. If we put them in prison, we stop them drinking. This was just a way of doing that, I explained, without incarcerating people. It is much cheaper, much quicker and, if the Government are kind enough to think about this new clause—perhaps following it up in the other place—the disposal could be self-financing and help to save a huge amount of money.
Andrew Gwynne
It is a pleasure to follow the hon. Member for North West Hampshire (Kit Malthouse). I start by saying that I have always been supportive of the police; I was brought up to be. I can remember my mum telling me as a very young child that if I ever got lost the police were my friends and that I should always seek out a police officer, who would always try to find where my mum and dad were. That is hopefully an ethic that I have passed on to my own children. That, I think, is where we must start.
In this country, there is a degree of consensus about the nature of policing, because we have developed, over a long period, the concept of policing by consent. I think that Parliament, when passing legislation both here and in the other place, must do everything in its power to ensure that we do not move away from that important concept. A number of measures in the Bill deserve to be scrutinised properly before Parliament decides whether it is appropriate to extend the powers in the way that the Minister proposes.
Jake Berry
The hon. Gentleman is absolutely right about the role that special constables play in our police force. They are vital to policing throughout the United Kingdom. Will he join me in calling on the Government, when the Bill goes to the other place, to consider extending the protection of the Police Federation to special constables, who cannot join the federation unless there is a change in primary legislation? I think that that would be a good way of ensuring that when special constables go out there and take risks, they benefit from the protection of a proper trade union.
Andrew Gwynne
I entirely agree. I am very proud that the headquarters of the Greater Manchester Police Federation are in the Reddish part of my constituency, in Stockport. The work that the federation does in supporting police officers is absolutely brilliant, and, as the hon. Gentleman says, it is crucial that we extend that support and protection to special constables. After all, they are doing the job of a police constable. When we talk about the role of volunteers, it is important for us to do so in the context of what we expect volunteers operating in the police service to do.
My hon. Friend the Member for Birmingham, Erdington, who spoke passionately about these issues, was right to draw attention to the important role of the home watch. In all our constituencies there will be home watch schemes led by dedicated members of the public and volunteers, working alongside the police and police community support officers. They provide a vital connectivity between the community and the police service, which, even following the introduction of neighbourhood policing, is still considered by too many of our constituents to be fairly remote from public concerns. So I support volunteers being the eyes and ears of the police on the ground and in schemes such as home watch.
Also, in my constituency, we have some very dedicated volunteers manning the front desks at the few police stations that are still open. They are playing an important role in ensuring that continuity of service is provided to members of the public. We often hear Ministers talking about protecting the police frontline, but to a number of my constituents who have experienced police station closures and front desk closures, that actually was their frontline. That was where they could get face-to-face access to the police service when they needed it. Were it not for police volunteers in Dukinfield in my constituency, for example, that police front desk would have closed in the same way that ones at the Denton and Reddish police stations have done. Those closures are a retrograde step for the communities that I represent.
Bob Stewart
Does the hon. Gentleman agree that, when the public see a police officer, they simply see a police officer? They do not look at them and wonder whether they are volunteer police officers or not. Volunteers who man desks do not wear the uniform, but wearing the uniform immediately tells the public that someone is a police officer. They do not think, “Is that a reserve officer?” They think, “That is a police officer”, and that is great.
Andrew Gwynne
It is great, and I think that the hon. Gentleman is inadvertently making my case for me that we should not be giving CS gas to volunteers who are not wearing the police uniform. My point is that we already have volunteer police officers. They are called special constables and they have the full power of a police constable and wear the uniform of a police constable. They wear the uniform with pride and they volunteer with pride, and we should be supporting the extension of the special constable programme rather than extending powers to other volunteers, which I do not think is appropriate. I take the hon. Gentleman’s point that, when people see someone in a police uniform, they do not care whether they are a special constable or a paid member of the police force. They just see them as a police officer. There is an important distinction that we must consider in examining some of the powers that Ministers are proposing. That is why we need clarity from the Minister before we decide whether to support the extension of these powers. I sincerely urge Members to exercise caution before we extend them.
My hon. Friend the Member for Birmingham, Erdington also mentioned the parliamentary police service scheme. I was pleased to be able to take part in that scheme back in 2007, when I was Parliamentary Private Secretary to the then Home Secretary, Jacqui Smith. That seems a long time ago now. Taking part in the scheme provided an invaluable insight into the work of the police. I was posted with my own police force, Greater Manchester police, although I was a bit gutted that I was unable to go out on the beat in my own constituency. I was told that that was in case the police ended up nicking any of my constituents. I was gutted because I had a long list of people I would have liked to call on. Leaving that aside, it really was an invaluable experience. I had not appreciated just how complex the police service in an area such as Greater Manchester is. Indeed, it was not really until the end of my experience on the police service scheme that I began to appreciate not only the complexity of the organisation but how it all fitted together.
I want to talk about one experience that really changed my view of the police. Before coming to this House as a Member of Parliament, when I was a local councillor in Tameside, and following my election to this place, I took the view that the police were a pretty remote service, because when my constituents needed them, they never seemed to call on them when they were expected to arrive. On one day, I called in at Oldham police station, where I was posted on the parliamentary scheme, and was to go out on response calls with a very dedicated police officer. We looked at the computer screen and 14 jobs were waiting for the police officer. We took the job at the top of the list, but just as we were about to set off, he received a call on the radio to go to the local hospital, because a girl—a teenager of a similar age to my eldest son—had been picked up by the police and it was suspected that she had been raped at a house party.
The police officer had received Nightingale training to deal with such cases, so we did not go to job No. 1 on the computer screen; we went to the hospital. It was inspirational to see the officer’s work. He was able to get the girl to open up and to get the necessary information out of her. The father in me wanted to bash the girl around the head and say, “What on earth were you doing at that house party instead of being at school where you should have been?” That is the paternal instinct, but the police officer was so caring, gentle and professional that he was able to get the information.
That story is relevant because I was back in my constituency that afternoon at a public meeting in Reddish and one of my constituents started complaining about a neighbourhood nuisance issue in the field at the back of her house. She had called the police at the time, but an officer did not come round. Indeed, the police officer did not come round until two days later. I had to gently remind that lady that she might have been job No. 1, No. 2 or No. 3 on the computer screen—it was in a different borough, but it is just an example—and that we might have been going to head out to her when the police officer got called off on Nightingale duty. I asked her, “If that was your granddaughter, what would you think was the most important job for that police officer to go to?” She conceded that it was to go and look after the girl in hospital rather than to come and see her. That is where the public’s perception of the police’s work is out of kilter with the real pressures on the police service, not just in Greater Manchester, but across the country, and that is why we must tread carefully when considering how we move away from the traditional policing models. The development of neighbourhood policing has been invaluable, and a move away from it would be a retrograde step.
I suspect that part of the reason that the Minister has come to the House to try to extend the powers of police volunteers is to fill the gap that the Government have created. I will provide an example from my constituency. Greater Manchester lost the equivalent of five officers every week over the course of 2015 and has lost 1,445 officers since the Government came to office, which has an impact on what the police service can provide. I appreciate that this is where the Government are trying to fill the gap with volunteers, but I ask them to think carefully about how they approach the matter. If their approach—it is not clear in the Bill—is that volunteers will be trained to become special constables, that is different from a member of the public, with good intentions no doubt, being taken on by a police force and trained to a certain level, but not actually becoming a police officer. That is what most people outside Parliament will be concerned about.
I will use another local example. Back in 1998, Tameside Metropolitan Borough Council—a Labour local authority —decided to complement the Labour Government’s neighbourhood policing team policy with a team of council officers called the Tameside patrollers. They were to be trained in a similar way to PCSOs, and were to wear a uniform that, although in Tameside council’s corporate colours, rather than the police colours, looked similar to a police uniform. They were also to work as part of the neighbourhood policing team.
Jake Berry
Will the hon. Gentleman accept that Parliament is not seeking to extend the power to volunteers? It is seeking to extend the power to chief constables to make the decision on whether volunteers should have CS or PAVA spray. How long does he think that a chief constable would be in office if someone—perhaps an accountant—came in to volunteer on a complicated fraud case and he said, “While you’re in here, take this CS gas spray.”? I think the hon. Gentleman is being unduly alarmist.
Andrew Gwynne
I would sooner be unduly alarmist than face a situation in the future where somebody may have been approved inappropriately to have this facility. It is the duty of Parliament to legislate well. We need to be much clearer in the Bill about what we intend so that there can be no ambiguity in respect of a chief constable in future. It should be perfectly clear what Ministers intend with regard to the use and the extent of this power.
All it would take is for the Minister slightly to amend and to clarify those points, and we might then have a different view. Unless the legislation that we pass is completely clear, and the intention is completely clear, we run the risk at some stage in the future of somebody who is inappropriate having that power extended to them.
Jake Berry
Is the hon. Gentleman seriously suggesting that Parliament should sit until the recess and come up with an exhaustive list of circumstances in which chief constables could use this power? Surely the appropriate thing to do is to trust our chief officers to use the power responsibly, which is exactly what this Bill does.
Andrew Gwynne
I hope that we would not have to face a situation in which chief constables inappropriately use the powers that the Government are seeking to extend to them, but it is our duty to legislate for a situation where that might be the case. I do not want, at some stage in the future, a chief constable to be all over the headlines of the national press because they have done something that they should not have done but to get out of that because the intention of the Act was not clear. All I am asking for is some clarity from the Minister. If we have to wait to get this right, the Government have the power to carry over legislation. Bills do not fall at prorogation if the Government want to carry them over. Actually, the Government could easily amend the Bill and clarify the point during the remaining stages.
Kit Malthouse
The hon. Gentleman is making a peculiar point. If he is saying that, essentially, we should not give chief constables a particular power because, at some point in the future, they may well fall foul of it or misuse it, then there are lots of other powers that we give chief constables to which he may wish to apply that rule. For instance, a chief constable is able to license a police officer to handle a firearm. If that firearm is used incorrectly, as we have tragically seen in the past, then the chief constable faces the consequences—whether that be legal consequences or otherwise. Does he think therefore that this principle that we cannot trust these highly trained and highly experienced chief constables to use their discretion should be applied to other perhaps more critical areas of their operation?
Andrew Gwynne
The hon. Gentleman has, inadvertently, made my case for me. He talks about extending firearms powers to police officers. That is the difference—he is talking about police officers. Chief constables are accountable for police officers. What we are talking about here is extending the use of CS gas to volunteers. We need to be very clear in the Bill what Parliament intends and how Parliament expects that power to be used. If the power is abused or misused, it is Parliament that will be at fault because it has not been clear about the fact that these are volunteers, not police officers.
I appreciate that other Members want to contribute to the debate. I return to the fundamental point about policing by consent. If we extend to volunteers, who are not warranted police officers in the form of special constables, powers that we would expect warranted police officers to be given, Parliament must be very careful and clear about the intention and the use of those powers, so that there are appropriate checks and balances if those powers are misused or abused, which we hope they will not be.
Several hon. Members rose—
Mr Deputy Speaker (Mr Lindsay Hoyle)
Order. We have seven more speakers, plus the Minister, so I am a little concerned that we will not get everyone in.
Mr David Burrowes (Enfield, Southgate) (Con)
I shall try to rattle through my contribution. I shall speak to my new clause 1, but first let me mention new clause 17. I welcome the comments of my hon. Friend the Member for North West Hampshire (Kit Malthouse) and pay tribute to his work as deputy mayor on championing alcohol abstinence and monitoring requirements. I did my bit in the Commons and in the Lords to ensure that the new clause eventually got on to the statute book and we need to make it have meaningful effect.
The evidence from what is happening in London, which is spreading, and the impact on the offender, not least as a result of the inconvenience of having to pay, is significant and supports the South Dakota model. That needs to be taken into account when the measure goes to the other place. There are those in the other place—Baroness Finlay and others—who champion the cause and who will look carefully at the evidence and give further impetus to cost-effective efforts to help those caught up in the cycle of alcohol-related offending.
I welcome the cross-party support for new clause 1 and the support from my hon. Friends the Members for St Ives (Derek Thomas), for Colchester (Will Quince), for South Thanet (Craig Mackinlay), for North West Hampshire, for Richmond Park (Zac Goldsmith), for Romford (Andrew Rosindell), for Congleton (Fiona Bruce) and for Altrincham and Sale West (Mr Brady). Some more recent supporters such as my hon. Friends the Members for Gower (Byron Davies), for Eastbourne (Caroline Ansell) and for Windsor (Adam Afriyie) did not quite make the cut last night to get their names on the amendment paper.
Over a number of years there has been support to ensure that knife crime legislation was fit for purpose and that it dealt properly with the issues of enforcement, recognising as do all of us who represent constituencies that have, sadly, been affected by knife crime, that much work is needed on prevention. I welcome the Government’s work over a number of years to ensure that we tackle knife crime both at its source and when it comes to court. I and a former Member, Nick de Bois, championed mandatory sentencing for repeat knife offending and I welcome the fact that that has now reached the statute book and is being implemented. We will continue to monitor that to ensure that it is implemented properly.
More needs to be done. No one can be complacent about the need to review legislation and to use the opportunities presented by the Bill to deal with knife crime. At 11 pm last night there was another incident of stabbing in the borough of Enfield, where a 28-year-old was stabbed twice in the abdomen and twice in the head in what was probably a gang-related incident. An off-duty police officer found the victim opposite Edmonton police station. The case reminds us of the impact of knife crime.
New clause 1 focuses on the sale of knives, particularly online sales, to those who are under age. I recognise that in some ways that is of marginal relevance. When I talk with police officers about gang crime, they explain that the easiest way for a youngster to obtain a knife is by getting one from the kitchen, or from someone else, or an adult might purchase it for them, so we have to recognise that there are other areas where we can tackle the prevalence of knives that would not be tackled by new clause 1.
Gerald Jones (Merthyr Tydfil and Rhymney) (Lab)
According to the National Audit Office, police forces saw their funding from central Government fall by 25% in the previous Parliament. The Chancellor and the Home Secretary have been rebuked by the statistics watchdog for claiming in the November spending review that police funding would be protected in this Parliament. As my hon. Friend the shadow Policing Minister said, Sir Andrew Dilnot, chair of the UK Statistics Authority, noted that the budgets would be cut by £160 million in real terms between 2015-16 and 2016-17. The result is that 18,000 officers have been cut by this Government, 12,000 from the frontline. This has led to police forces being overstretched and struggling with the challenges that they face. In many areas, specialist teams are stretched, and sometimes being merged, leading to even more pressure on the frontline.
I oppose the Government’s attempts in this Bill to plug the holes that they have created in the workforce with volunteers. I recognise the excellent work done by special constables, as highlighted by many right hon. and hon. Members. Some weeks ago, I had the privilege of spending some night shifts with the Lambeth division as part of the police service parliamentary scheme. I was absolutely impressed by the dedication, commitment and professionalism of all the specials I met in having to deal with fighting, robbery, assault and a range of all sorts of offences during those shifts. For many years, my own father was a special constable in south Wales, so I absolutely appreciate the role played within the policing family by special constables, as well as the other volunteers who work to support the police through neighbourhood watch, police and crime panels, and a range of other roles. However, there is a big difference between volunteers bringing additionality to the police workforce and volunteers acting as replacements for paid police staff.
One of the most concerning results of police cuts has been the reduction of in the number of neighbourhood policing teams. Under the Labour Government, we saw significant investment in local policing teams. That had a really positive impact in reducing crime, building rapport with local communities, and raising awareness and visibility. Sadly, we are witnessing the loss of local neighbourhood policing, and that is a huge backward step.
Peter Kyle (Hove) (Lab)
My hon. Friend is making an incredibly powerful point about the importance of neighbourhood and community policing. Does he agree that the other important aspect is stability for our economy? Increasingly, particularly in constituencies such as mine in the far south of England, high numbers of self-employed people are working at home and therefore need stability in order to boost our economy and retain economic growth within the community where a lot of our economic activity now takes place. It is not just about personal harm; it is about economic stability as well.
Gerald Jones
My hon. Friend makes a good point that I fully agree with. Unfortunately, across the country we are seeing the loss of the neighbourhood policing that has grown over the past 10 or15 years or so. That is a very retrograde step.
Jim McMahon (Oldham West and Royton) (Lab)
Failsworth in the borough of Oldham had one of the borough’s reassurance projects, which were the forerunners of the model of neighbourhood policing that we all see and respect today. The police station in that area is now closed. There is not a single custody cell in the whole borough of Oldham, and there are only two PCSOs left in the township, one of whom is likely not to be there if the cuts continue. The seven neighbourhoods that were in the borough of Oldham have now changed so that they stretch from Manchester’s city boundaries all the way through to Saddleworth and towards Huddersfield. That is not a neighbourhood, by anybody’s standards.
Gerald Jones
My hon. Friend makes a good point. As a local councillor, I spent many years working with the neighbourhood policing team in my communities, organising monthly advice surgeries and working with the team to resolve issues that were brought up. Cases that we as local councillors come across often have a two-pronged effect: are they a policing issue or a council issue? Very often, issues cut across both. The ability of elected local councillors to work with local neighbourhood policing teams has had a positive impact on solving crime that was, in some cases, low level, but that often led to bigger issues brewing if it was not resolved at an early stage. Local neighbourhood policing is essential to resolve community tensions, bring communities together and act as that visible part of policing that, unfortunately, we came to take for granted but that is no longer there in the way it once was. The Government should fund police forces properly and allow police and crime commissioners and chief constables to recruit more police officers to be visible on our streets, and to have the positive impact on crime that we became used to under the previous Labour Government.
Antoinette Sandbach
In fact, those people are community support officers, not police community support officers. Policing is not devolved to the Welsh Assembly Government, so the position is that they are community support officers. [Interruption.] The hon. Member for Swansea East (Carolyn Harris), who is speaking from a sedentary position, might want to check that. The Welsh Assembly Government do not have devolved powers over policing or justice.
Gerald Jones
I accept that the Welsh Assembly Government do not have power over policing, but there is no difference between the 500 PCSOs that the Welsh Government fund—they are part of the policing family—and other PCSOs. They are certainly not what is being proposed in the Bill; they are paid police community support officers who work in communities across Wales. Sadly, because of the Conservative cuts, the number of PCSOs has been drastically reduced elsewhere. Wales is the only area where PCSO numbers have increased, and I am thankful that I represent a Welsh constituency where that is the case. I close by asking the Minister to confirm whether she expects the volunteers to plug the gap that the Government have created by cutting the number of PCSOs.
Geoffrey Clifton-Brown
You have caught me out of my place, Mr Deputy Speaker, but I am sure that what I have to say will still be perfectly valid.
Geoffrey Clifton-Brown
I probably did. I start by drawing attention to my entry in the Register of Members’ Financial Interests. I am the chairman of the all-party group on shooting and conservation, and I am a shotgun and firearms certificate holder. I have tabled several amendments that are technical, so I will take them slowly. They have the support of the British Shooting Sports Council, the Countryside Alliance and the British Association for Shooting and Conservation. Those associations cover very large numbers of lawful certificate holders.
I rise to speak to new clauses 7, 8 and 9 and amendment 1. New clause 7 has three purposes. First, subsections (2) and (3) relate to expanding ammunition. Expanding ammunition is required under the Deer Act 1991 and the Deer (Firearms etc.) (Scotland) Order 1985 to shoot deer, and it is the humane option for pest control and humane dispatch. It is therefore widely possessed. Certificates are rendered more complex by the inclusion of the additional authority to acquire and possess it. Expanding ammunition is also safer than fully jacketed ammunition, being less prone to ricochet.
It is my understanding that the National Police Chiefs Council has asked for a revision of this provision. Currently, special authority has to be given on a firearms certificate for the possession of expanding ammunition, which requires additional administration for the police. The new clause would simplify the licensing process, save resources for the police and facilitate the movement of such ammunition for the trade. Moving expanding ammunition back to section 1 of the Firearms Act would reduce the administrative burden. It is also illogical to have a type of ammunition that is banned by one Act, but required to be used by another.
Secondly, subsection (4) of my new clause 7 would replace the existing section 7(1) of the 1968 Act to address an anomaly in the Act as regards section 7 permits. The insertion of words “or authority” would extend section 7 temporary permits to cover section 5 items held on a firearms or shotgun certificate. That would help in a variety of circumstances when temporary possession has to be authorised—for example, when there are firearms or ammunition among a deceased person’s effects that have to be disposed of by the executors.
Thirdly, subsection (5) of new clause 7 would clarify the law with regard to certificate renewals, and replicate the provision in Scottish legislation that ensures that the possession of firearms remains lawful when there is a delay in renewal. This has happened to me. An application may be made to the police in good time, but because of the number of certificates that the police have to inspect and then decide whether to grant, they do not actually renew the certificate on time. Unless they issue a section 7 temporary permit, the person holding the firearms or shotguns is doing so illegally because the certificate has not been renewed. I therefore suggest the adoption of the Scottish solution.
A recent freedom of information request to all police forces in England and Wales has shown that there has been a substantial increase in the number of section 7 temporary permits issued during the past five years. For example, the number of permits issued in Hampshire has increased by over 15 times, from 79 in 2010 to 1,205 in 2015. It should also be noted that some of the police forces inspected by Her Majesty’s inspectorate of constabulary have failed to issue a section 7 temporary permit to individuals whose certificates have expired, placing those individuals in an illegal situation through no fault of their own. Of the 11 police forces inspected by HMIC, between one and 168 firearms holders were currently in that category in each police force area. Simply by deeming the existing certificate to be in force until it is renewed by the police would reduce the administrative burden on them, and not place the individual certificate holder in the invidious position of holding illegal firearms.
New clause 8 would extend Home Office club approval to cover section 1 shotguns and long-barrelled pistols used for target shooting at clubs approved by the Home Office. These clubs are very strictly vetted. They may possess firearms for the use of their members, who may temporarily possess one another’s firearms. This allows the club to instruct new members in safety and shooting skills, as it is required to do under its licence, and for a range officer to take possession of a firearm on the range in the event of a problem.
At present, the Home Office may approve target shooting clubs to use only rifles or muzzle-loading pistols. Long-barrelled pistols and section 1 shotguns are increasingly popular for target shooting, but because of the limitations placed on firearms for which Home Office approval may be given, only the person—this is the critical bit in relation to new clause 8—on whose firearms certificate the long-barrelled pistol or shotgun is entered may use it at the club. This has adverse consequences in that clubs may not possess such arms for the use of members, and may find that the possession stricture makes safety instruction difficult and, critically, prevents range officers from taking control of such firearms should there be a problem. For example, if the weapon jams or, even worse, if something serious, such as a heart attack, strikes the user of the firearm, the range officer in the club cannot lawfully take possession of the firearm. New clause 8 seeks to amend that provision.
New clause 9 addresses the problem caused by the term “occupier” in relation to the borrowing of a shotgun without a shotgun certificate under section 11(5) of the Firearms Act 1968, and the borrowing of a rifle without a firearm certificate under section 16(1) of the Firearms (Amendment) Act 1988. I will cut a lot of verbiage from my explanation of the new clause by illustrating it with an example. Suppose, Mr Deputy Speaker, that I invite you to shoot on my shoot and I am the occupier. If you bring a friend, he can borrow my gun, because I am the occupier, but he cannot borrow your gun, because you are not the occupier, even though you might be a lawful certificate holder.
Recent inquiries made to police forces suggest a lack of clarity as to how the term “occupier” is understood, but it is construed narrowly. The organisations that I have mentioned carried out a survey. When asked under a freedom of information request for their definition of “occupier”, the majority of police forces relied on guidance. Sussex police force replied that “occupier” meant
“either the owner of the land or the person possessing the sporting (shooting) rights over the land”.
The Durham police force, however, defined “occupier” as
“an owner, lessee or authorised person over the age of 18 years who holds a firearm certificate and who owns or is responsible for land that has rights of hunting, shooting, fishing or taking game”.
Those two examples make it crystal clear how different police forces construe the meaning of the word “occupier”.
The Law Commission’s scoping consultation concluded the following on the lack of definition:
“It has been reported to us by a number of stakeholders that this provision poses real problems in practice for shooting enthusiasts. This is because it inconsistently limits this very temporary, restricted loan of shotguns, with the result that some novices wishing to shoot are arbitrarily forced to take out shotgun certificates in their own names”.
By simply replacing the word “occupier” with
“the owner, occupier or authorised person”,
anyone granted a lawful certificate by the local constabulary would become the authorised person. The new clause deals with the anomaly.
Moving rapidly on to my amendment 1, this Bill will give the Home Office the right to produce statutory guidance by which the police will have to abide, but the shooting organisations fear that they will not be consulted as part of that process. That would be monstrously wrong, because the thousands of lawful certificate holders would not have a say in that guidance. My amendment simply states that other organisations must be consulted on that statutory guidance.
I would like to spend 30 seconds on the Opposition’s amendments on full cost recovery. If they look carefully at the work of the fees working group, they will see that all the organisations, including the Association of Chief Police Officers, the Home Office and the shooting organisations, agreed that the system allows for full cost recovery. Put simply, the police must adopt the new, computerised efficiency systems to give them those reductions in costs. Unfortunately, not all constabularies are complying with that new e-commerce system. I ask the Minister to encourage all 42 constabularies to adopt the system so that they can get the maximum efficiencies and keep their costs to the lowest possible level. That would benefit all certificate holders. Thank you, Mr Deputy Speaker, for allowing me this opportunity.
Nigel Adams (Selby and Ainsty) (Con)
I want to speak to new clause 19, which appears in my name and those of many right hon. and hon. Members from parties on both sides of the House. Members may recall my promotion of a ten-minute rule Bill on the subject in question a couple of weeks ago, so I hope they will indulge me while I provide a quick summary.
My new clause seeks to ban those attending live music events from carrying or using flares, fireworks or smoke bombs. In 2014 there were 255 incidents involving such items, which can be very dangerous as they can burn at temperatures of up to 2,000 °C. Although we are lucky that no one in this country has died from such incidents recently, such deaths have occurred elsewhere in the world, so we should try to act now to prevent that from happening here.
Antoinette Sandbach
I rise to add my support to new clauses 7, 8 and 9. In particular, it is important that people who are not seen as a risk when holding firearms—I declare that I hold a shotgun certificate—do not suddenly become a risk overnight because their certificate has expired. New clause 7, and particularly subsection (5), is a sensible amendment to firearms legislation.
If an application to renew a certificate has been received by the local firearms team but it has been unable to deal with it in time, it seems wrong that members of the public who have exercised their responsibilities appropriately and within the terms of their licence should be criminalised overnight by the failure of the police force to deal with that application in time. I urge the Minister to take that into account. New clause 7 would make matters administratively simpler for the police, and avoid unnecessarily criminalising people who have otherwise done nothing wrong.
Mr Geoffrey Cox (Torridge and West Devon) (Con)
Does my hon. Friend agree that in that situation, one way forward that the shotgun licence holder is given is to apply for a temporary permit? Yet that application is made to the same firearms department, which is already overburdened with work, and it requires the same amount of work as issuing a permanent permit. We need some mechanism such as that proposed in the new clause.
Antoinette Sandbach
I totally agree. The new clause would remove that unnecessary duplication of effort and allow the police to concentrate on getting through a backlog of licence renewals, or processing them quickly and effectively.
Let me highlight some of the anomalies behind new clause 9. As a landowner I could lend somebody a gun that is lawfully in my possession and that I am authorised to hold. Many children are taught to walk around with unloaded guns for many years, so that they learn how to use shotguns safely. Those guns are never loaded, but children are taught how to carry one, how to keep other people safe, and how to cross fences. That is a valuable part of training, and it makes a nonsense of the current unclear legislation on the term “occupier”—my hon. Friend the Member for The Cotswolds (Geoffrey Clifton-Brown) spoke about how different police forces interpret that term, which indicates that there is something of a postcode lottery regarding where someone lives and how the law is applied.
The new clause brings much needed clarity to the process, and I urge the Minister to consider taking the matter further. If he cannot accept the new clause today, perhaps he will commit to it being considered in the other place. It is clear that these new clauses do not involve further risk—or indeed any risk—to the public.
The hon. Member for Birmingham, Erdington (Jack Dromey) mentioned the police funding formula. In many areas, rural policing is like rural schooling and delivery of services. The policing formula does not support delivery of policing in rural areas—indeed, it tends to favour metropolitan areas. I have many examples of that. I know from previous experience that North Wales police were underfunded by £25 a head. It would be quite wrong, therefore, to give the impression that the leafy shires are better funded than metropolitan areas; that simply is not the case. The difference, particularly in Dyfed–Powys or indeed Cheshire, has been the way the PCC has allocated resources to frontline policing.
Jack Dromey
With the greatest respect, I have to correct the hon. Lady. If we compare metropolitan forces with areas such as Surrey, Sussex and Hampshire, we will see that the evidence is stark. In addition, after the debacle over the police funding formula, proposals were made for transition arrangements, but all the emphasis has been on helping Conservative areas, which cannot be right.
Antoinette Sandbach
I simply do not accept that. The “damping” provisions have ensured that metropolitan areas have had substantially more funding, and rurality is not adequately accounted for in the funding formula to reflect the difficulty of policing often very large areas. After all, communities in rural areas deserve to be policed in exactly the same way and to have the same support and cover as those in metropolitan areas. I want to correct the impression that that is not the case.
In Cheshire, the PCC’s approach to services has led to a substantial increase on the frontline in the number of warranted officers. PCCs are making choices about where to allocate resources, but the examples from Cheshire and elsewhere, such as Dyfed–Powys, show that we can protect frontline services and even increase frontline policing using the funding settlements made over the last few years. The examples are out there, and I invite members of the public to check them out.
Karen Bradley
I start by joining the hon. Member for Birmingham, Erdington (Jack Dromey) in paying tribute to the right hon. Member for Leigh (Andy Burnham) and his work to expose the tragedy at Hillsborough. I also pay tribute to my right hon. Friend the Home Secretary, who instigated the coroner’s inquiry and made sure we had the inquest. Had it not been for her work, we would not be here today with the unlawful killing judgment that we are all grateful for.
I agree with the hon. Gentleman that the Committee was good natured. There was a great deal of agreement and consensus, and where there was agreement—and even where there was not—the debate was good natured. I must, however, take issue with some of his points. We had a bit of a debate during his contribution about crime, but the figures are clear: since 2010, crime is down. He is right, however, that reported crime is up, and that is good news. We want victims to come forward and we want the police to believe them. We want to ensure that when a crime has been committed, it is reported and recorded, so that we have the best possible chance of catching the criminal and bringing them to justice.
The hon. Gentleman talked about the changing face of crime and seemed to imply that the Bill had failed. I hope he will acknowledge that the Investigatory Powers Bill, currently in Committee, deals with many of his points about the changing face of crime. He is right that there are new ways criminals can attack us and get to us.
Before the internet, a criminal simply could not get to somebody sitting in Leek, in my constituency of Staffordshire Moorlands, or to Joe and Josephine Soap in The Dog and Duck in Erdington, who we have heard much about in our debates. They could simply not get to those people from places such as the far east, eastern Europe and so forth. Now, thanks to the internet, they can. The internet has provided a great opportunity, but it also means that criminals have access to that opportunity. I believe that the Investigatory Powers Bill being debated upstairs addresses many of the points that the hon. Member for Birmingham, Erdington raised.
Jack Dromey
May I briefly intervene in support of new clause 1? There is no doubt that welcome steps have been taken, but what the hon. Member for Enfield, Southgate (Mr Burrowes) and others have proposed, with cross-party support, is the imposition of clear obligations and responsibilities, in law, to which those engaged in the selling and provision of knives must be held. Are the Government rejecting that approach?
Karen Bradley
The law is clear. Selling a knife to anyone under 18 is against the law, and anyone who does so is breaking the law. What we are seeking is the best way in which to ensure that that responsibility is upheld and there is appropriate enforcement of the law, and that means ensuring that retailers adhere to the code of practice. It is a voluntary code of practice, but we want the onus to be on the retailer rather than on the Government. The key issue is effective implementation and enforcement of the law as it exists. My hon. Friend the Member for Enfield, Southgate pointed out that such matters are not generally covered by primary legislation, and tend to be dealt with in, for instance, codes of practice. I shall be happy to look into whether there are suitable ways of enabling the code to be implemented by prosecution services or others, and I will keep my hon. Friend apprised of developments.
Let me now deal with the new clauses relating to firearms which were tabled by my hon. Friend the Member for The Cotswolds (Geoffrey Clifton-Brown) and supported by my hon. Friend the Member for Eddisbury. I think that my right hon. and learned Friend the Member for Harborough (Sir Edward Garnier) has left the Chamber, but I sensed that he was about to support them as well.
The purpose of the firearms provisions in the Bill is to close the most pressing loopholes in the current legislation, which are open to exploitation by criminals. The Government accept that firearms legislation needs a general overhaul, but our priority must be to address the issues that pose the greatest risk to public safety. The Law Commission recommended that firearms legislation be codified, and we are giving careful thought to the case for that. We may be able to consider some of the proposals in new clauses 7, 8 and 9 as part of such an exercise. The provisions in the Bill have been subject to detailed consideration and consultation by the Law Commission, unlike the proposals presented by the British Shooting Sports Council. We need to think carefully about the impact on public safety before legislating on any of these matters, and I assure my hon. Friend that we will do just that.
Geoffrey Clifton-Brown
With great respect to my hon. Friend, it sounds as though she is shunting my new clauses into the very long grass, which would simply not be acceptable to the millions of lawful holders of firearms and shotguns. There will be a great deal of pressure on my hon. Friend. Will she please assure us that she is not shifting this into the very, very long grass?
Karen Bradley
I can assure my hon. Friend that that is not the case. I understand that he had a productive meeting with officials yesterday to discuss his new clauses. As I have said, our No. 1 priority must be to promote public safety, but I accept that we also need an efficient licensing regime that minimises bureaucracy and inconvenience both to the police and to legitimate holders of firearms certificates. We will study my hon. Friend’s new clauses further, and if there are elements that can sensibly be taken forward without our compromising public safety, I shall be happy to look into whether it might be possible to do that in the Bill. I will keep my hon. Friend informed of progress in advance of the Committee stage in the other place.
I recognise that amendment 1 is intended to enable those with practical expertise to contribute to the development of the guidance to the police. We will consult widely on the first edition of the new statutory guidance, and that consultation will consider the views of shooting organisations as well as of the police. However, this is not a matter for legislation.
The hon. Member for West Ham (Lyn Brown) has tabled amendments relating to firearms fees. Currently, combined, the authorisation and licensing of prohibited weapons, shooting clubs and museums cost the taxpayer an estimated £700,000 a year. It is our intention that licence holders, not the taxpayer, should pay for the cost of the service. The proposed fees will be set out in a public consultation and the Government must consider any evidence put forward about the impact of the fees on particular categories of licence holders. I cannot pre-empt the consultation but, for example, organisations in the voluntary or civil society sector might put forward a case.
Fees for firearms and shotgun certificates issued by the police are separate and were increased in April 2015. Those were the first increases since 2001. My hon. Friend the Member for The Cotswolds talked about the police’s new online e-commerce system. Once that has been introduced across all 43 forces, fees will recover the full cost of licensing.
Jack Dromey
I have a very quick question for the Minister. Is she therefore giving us an assurance that we are moving to full cost recovery, and that never again will the police have to subsidise the cost of issuing gun licences?
Karen Bradley
Yes. I understand that the Minister for Policing, Fire, Criminal Justice and Victims will write to Opposition Front Benchers with further information when we have further details of the consultation.
My hon. Friend the Member for North West Hampshire (Kit Malthouse) has tabled new clause 17 on the question of sobriety orders. He and I had a good discussion on this yesterday, and I am keen to explore the areas that he has talked about. He has rightly made the point that it is currently not possible to make offenders pay for the cost of their tags, and to do so would represent a departure from what we are doing in other parts of the criminal justice system. So, if he will allow me, I would like to explore the matter further, check for any unintended consequences and other points and perhaps continue to discuss the issue with him so that we can ensure that we get this measure right if it is appropriate to introduce it.
My hon. Friend the Member for Selby and Ainsty (Nigel Adams) tabled new clause 19, and I want to start by praising him. He should take great pride in having identified a real gap in the law. He is quite right to say that we do not want to see hundreds of young people—and perhaps not-so-young people—at festivals being maimed by flares. The Government fully support the intention behind the new clause but we need to be sure that there would be no unintended consequences.
It is for that reason that the Home Secretary and I have agreed with my hon. Friend to work together to table a Government amendment on this issue in the other place. I can assure him that when the Bill is enacted, such an amendment will be on the face of the legislation. I can also assure him that we will work to ensure the timely implementation of the amendment so that the law is in force by the time of next year’s festival season. I think I picked up some references in his contribution to a great artist who passed away last week. I can assure him that, at next season’s festivals, people will be able to party like it’s 1999.
Question put and agreed to.
New clause 31 accordingly read a Second time, and added to the Bill.
New Clause 32
Police volunteers: inspection
‘(1) In section 54 of the Police Act 1996 (appointment and functions of inspectors of constabulary), in subsection (7) (as inserted by section 34), after paragraph (a) insert—
“(aa) persons designated as community support volunteers or policing support volunteers under section 38 of the Police Reform Act 2002;”
(2) In Schedule 4A to the Police Act 1996 (further provision about Her Majesty’s Inspectors of Constabulary), in paragraph 6D (as inserted by section 33), after sub-paragraph (1A)(c) insert—
“(ca) a person designated as a community support volunteer or a policing support volunteer under section 38 of the Police Reform Act 2002;”.’.—(Karen Bradley.)
This new clause makes provision about how the law relating to police inspections under the Police Act 1996 applies to those designated as community support volunteers or policing support volunteers under section 38 of the Police Reform Act 2002. The amendment of section 54 clarifies that inspections of police forces may include inspections of designated volunteers. The amendment of Schedule 4A is related to amendment 48 and means that designated volunteers served with a notice under paragraph 6A of that Schedule requiring the provision of information have no right of appeal against the notice (and, hence, are in the same position as constables serving with a police force and civilian staff designated under section 38 of the 2002 Act).
Brought up, read the First and Second time, and added to the Bill.
Policing and Crime Bill
Wednesday 26th October 2016
(9 years, 6 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 55-II(b) Amendments for Committee, supplementary to the second marshalled list (PDF, 62KB) - (26 Oct 2016)
Lord Rosser
“Statutory duty on flooding
The Secretary of State shall make provision for the fire and rescue services in England to lead and co-ordinate the emergency service response to—(a) rescue people trapped, or likely to become trapped, by water; and(b) protect people from serious harm, in the event of serious flooding.”
Lord Rosser (Lab)
My Lords, the amendment requires the Secretary of State to make a statutory provision for the fire and rescue services in England to lead and co-ordinate the emergency service response to serious flooding.
Part 2 of the Fire and Rescue Services Act 2004 sets out the statutory core functions of fire and rescue authorities: fire safety, firefighting, and rescuing people and protecting them from harm in the event of road traffic accidents. The 2004 Act also gives the Secretary of State the power to give fire and rescue authorities functions relating to other emergencies, including outside the fire and rescue authority’s area. This is an order-making power and does not require primary legislation.
There is thus no statutory duty on the fire and rescue services for emergencies arising from flooding, yet flooding is on the increase. Government figures show that in 2007 there were 14,000 flooding calls; in 2011-12 there were 16,000; and in 2013-14 there were 18,000. I also sense that the extent of flooding is becoming more serious. The Greater Manchester Fire and Rescue Service said that on Boxing Day last year it deployed two-thirds of its available resources on flood response. The 2008 Pitt review into the 2007 floods said that a statutory duty would be beneficial and recommended that the Government should urgently put in place a fully funded national capability for flood rescue, with fire and rescue authorities playing a leading role underpinned as necessary by a statutory duty.
The case for a statutory duty on the fire and rescue services is now stronger than it was in 2008, with more and more flood calls but fewer staff, less equipment and fewer fire stations. In parts of the United Kingdom there is already a statutory duty on flooding, namely in Scotland since April 2013 and Northern Ireland since January 2012. A statutory duty would assist in adding to the resilience of fire and rescue services when faced with flooding, assist with strategic planning between fire and rescue services and local resilience forums, and underscore the need to resource fire and rescue services specifically for flooding.
The Government’s approach to date appears to be that there is no need for a statutory duty because the fire and rescue services will turn up as necessary anyway even though it is not a statutory core function. On the basis of that argument one might as well remove all the existing statutory core functions of the fire and rescue services on the basis that they will turn up anyway. The reality is that additions are made to statutory functions to reflect changing circumstances.
The fire service has been rescuing people from road traffic crashes for decades, but it was felt that a statutory duty was needed and the Fire and Rescue Services Act 2004 addressed that. The fire service had been providing fire protection for centuries, but a statutory duty was introduced in 1947. Now is surely the time to introduce a statutory duty on flooding to reflect and recognise the vastly increased role of the fire and rescue services in this area of emergency provision. The Government talk about the need to reform our emergency services and bring them up to date. Perhaps the Government need to do the same for the statutory functions of the fire and rescue services. I beg to move.
Lord Paddick (LD)
My Lords, while I agree with the noble Lord, Lord Rosser, on a statutory core function or a statutory duty on flooding for the fire and rescue service, we are a little concerned about the wording of his amendment which reads:
“The Secretary of State shall make provision for the fire and rescue services in England to lead and co-ordinate the emergency service response”.
It is accepted practice among all the emergency services that the police co-ordinate during the emergency phase of any emergency, whether flooding or anything else, partly because there is a duty on the police to investigate. For example, one can imagine a scenario where flooding is caused by a criminal act. It is generally accepted practice and has been for many years that the police service should lead and co-ordinate in every emergency situation. That is slightly different from what the noble Lord, Lord Rosser, is saying in terms of the fire and rescue services having a statutory core function or duty but we do not believe that that should be to lead and co-ordinate in the case of flooding.
The Earl of Erroll (CB)
My Lords, I know nothing about this but a question suddenly occurred to me. If this is a statutory duty that these services are undertaking, will this help them secure funding to do it properly?
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, like the noble Lord, Lord Rosser, I recognise the sterling work and professionalism of the fire and rescue authorities in providing a brilliant service to the various communities during the significant number of flooding incidents, especially in December and January. The noble Lord talked about the Greater Manchester FRA, to which I pay full tribute. When I visited some of the affected areas, such as Rochdale, Salford and Bury over the new-year period, there was clearly effort from not just the community and police but the fire and rescue service. It provided fantastic input into what was a very successful operation in clearing up various areas.
It is clearly important that a timely and co-ordinated response is provided at these critical incidents. A number of agencies are involved generally in rescuing people from floods, particularly in coastal areas, including the Royal National Lifeboat Institution and the Maritime and Coastguard Agency, as well as fire and rescue authorities and the local charitable organisations that play a vital part in many communities. However, direction rests with local resilience forums for local responders to work out the arrangements that work best in their area. Often, this will be the fire and rescue authority but there may be many valid reasons—as the noble Lord, Lord Paddick, outlined—why they might choose a different responder in different circumstances and if that works locally. We do not want to reduce this flexibility with a one-size-fits-all approach as there may be good reasons why, in some areas and on some occasions, it makes more sense for a different responder to take the lead. The fact that two noble Lords have slightly different views on how that might be is proof of that.
I will give an example. During and in the direct aftermath of serious flooding, it has been vital for other agencies including voluntary groups to provide services to protect people from serious harm and to distribute clean water to those affected. Depending on the extent of the incident, it may be necessary for the Royal Air Force to take a major role, as with the flooding in 2007 when it deployed Sea King helicopters from as far afield as Cornwall, Anglesey and Yorkshire for the rescue of 120 people. There are advantages to a permissive, multi-agency regime where responders have broad powers and local discretion rather than a prescriptive duty for flooding or indeed any other type of critical incident we can identify. There is no question that fire and rescue authorities have the power they need to respond to floods. They have responded to all major flooding events and usually provide the most resources.
I welcome the scrutiny that this amendment provided of the arrangements for the emergency services’ response to flooding. To answer the brief question from the noble Earl, Lord Erroll, in terms of something being on a statutory footing, yes, it would necessitate a funding stream. However, for the reasons I have given and from the experiences I have had, I believe that the existing regime with broad, permissive powers gives both fire and rescue authorities and local resilience forums the flexibility they all need. On that note, I ask the noble Lord to withdraw his amendment.
Lord Rosser
I thank noble Lords who contributed to this short debate, and the Minister for her response. I think she said that the fire and rescue services did respond to all major flooding events, which is certainly my understanding of the situation.
It seems a little odd that even if there may be objections to the precise wording of our amendment, there is no willingness to write in a statutory duty and function in respect of flooding for our fire and rescue services. We know that they play a key role. If I understood the Minister correctly she indicated that, if this was on a statutory footing, the fire and rescue services would of course have to be provided with the resources to carry out that activity. Bearing in mind the issues that fire and rescue services face over resources, one has a suspicion that one reason for the reluctance of government to go down this road may be that it would require that commitment of resources, even though the Government have acknowledged that the fire and rescue services do respond to all major flooding events. Obviously, I am disappointed with the Government’s reply but at this stage I beg leave to withdraw the amendment.
Baroness Chisholm of Owlpen (Con)
My Lords, as the way in which policing is delivered evolves, it is important that the powers and remit of Her Majesty’s Inspectorate of Constabulary also evolve to ensure that it remains able to inspect and report on the totality of policing.
As forces rightly place an increasing emphasis on collaboration between emergency services, certain policing functions, such as answering 999 calls, may be delivered by employees of other emergency services without any formal contractual arrangements in place. HMIC must be able to require access to information and premises from these other services when they are related to the delivery of policing functions. That is what these amendments will achieve.
Amendments 165 and 166 extend the definition of a police force for the purposes of an inspection to include non-policing bodies delivering policing functions, even where there is no formal contract in place. In keeping with the scheme provided for in the Bill, such other persons delivering policing services would not be able to appeal against an information notice served on them by HMIC. Amendments 123 and 164 give HMIC and the new inspectors of fire and rescue authorities access to premises in which other services are delivered alongside those that they are inspecting; for example, HMIC would be able to access premises shared by a police force and a fire and rescue service.
I trust the Committee will agree that these are sensible refinements of the inspection provisions in the Bill. I beg to move.
Lord Paddick
Lord Paddick
My Lords, if I say this at the beginning of the afternoon, I hope I will not have to repeat it, but I declare an interest as having been a member of the police service for 30 years. In moving Amendment 124, I will also speak to the other amendment in this group, Amendment 127.
Clause 12 allows a police and crime commissioner—or the Mayor’s Office for Policing And Crime in relation to the Metropolitan Police district, or the Common Council in relation to the City of London police area—to choose to take on direct responsibility for receiving and recording complaints against the police and keeping the complainant informed of progress.
The problem here is that this may further confuse the public about who they should complain to. People are already unsure whether they should complain to a local police station, to the IPCC or to a third party. This change will inevitably mean that in some parts of the country, the complaint needs to be made to the police and crime commissioner—the local policing authority, to use a generic term—who will then deal with the complaint and keep the complainant informed. In other cases, it will be the police service itself, depending on whether the local policing authority takes up the offer provided by the legislation to take on the handling of complaints.
The idea of giving local policing authorities responsibility for complaints against the police, as opposed to the chief officer, is a good one. It will introduce a further element of independence into the police complaints system, but allowing local policing authorities simply the option—and indeed allowing local policing authorities to be persuaded by their chief constable not to take responsibility away from her or him—appears to me to be a fudge. Indeed, the more a chief constable tries to persuade his or her PCC not to take away the responsibility, the more the PCC should resist such pressure, in my opinion. This amendment would require the local policing authority to take over these statutory responsibilities, to ensure independence and clarity for the public.
I turn to Amendment 127. Clause 22 inserts into Section 23 of the Police Reform Act 2002, titled “Regulations”, a new paragraph which gives local policing authorities the power,
“to delegate the exercise or performance of powers and duties conferred or imposed on them”,
in relation to the handling of complaints against police. In a subsequent subsection, which inserts new paragraphs into the Police Reform and Social Responsibility Act 2011, the expression used is to “arrange” for another person,
“to exercise a function that the police and crime commissioner has”.
Although the Explanatory Notes give reassurance that liability remains at the top, Amendment 127 is intended to probe why there is a difference in the wording between the two different subsections and to ensure that the delegation of powers and duties does not include delegation of responsibility. I beg to move Amendment 124.
Lord Bach (Lab)
My Lords, I declare my interest as a police and crime commissioner, for Leicester, Leicestershire and Rutland. I will say a few words about this very interesting amendment, moved by the noble Lord, Lord Paddick, neither to praise it nor to condemn it, but just to tell the Committee something that it is probably aware of anyway. I suspect I speak for other police and crime commissioners as well when I say that as we speak here, we are considering which way to go, given the possibilities that the Bill opens up for us in terms of complaints. It is very interesting that the noble Lord, Lord Paddick, suggests that we should not have that option but should be compelled, as it were, to take all complaints at a low level and consider them. I am not so sure he is right—I do not know. I think there may in the end be a tendency among a number of police and crime commissioners, once the Bill is an Act and this legislation is law, to not take full responsibility for all complaints. I am not quite sure what the Government would like in this case: it may be that they really do not have a preference, and it would be interesting to hear from the Minister whether they do or not.
I have to tell the noble Lord that the chief constable in my patch has done absolutely nothing up until now to try and persuade me not to take the full gamut, but it may be different elsewhere. It is an interesting debate and I look forward very much to hearing what the Minister has to say. I suspect, if the Bill remains as it does up until it becomes an Act, then police and crime commissioners around the country will be doing different things.
Baroness Williams of Trafford
My Lords, I thank the noble Lord, Lord Paddick, and Parliament’s only living breathing PCC, the noble Lord, Lord Bach, for an insight into their views and the opportunity for your Lordships’ Committee to debate the provisions in the Bill that seek to give more responsibilities for handling complaints to local policing bodies.
The Government are committed to reforming the police complaints system so that complaints made against the police are responded to in a way that restores trust, builds public confidence and allows lessons to be learned. The reforms also increase the independence and accountability of the complaints system by enhancing the role of police and crime commissioners and their equivalents in London. The Bill seeks to strengthen local accountability by giving PCCs explicit responsibility for the performance of the complaints system locally and the responsibility for those appeals currently heard internally by forces.
As the noble Lord, Lord Bach, has tried to tease out of the Government, Clause 12 gives PCCs the ability to choose to take on the additional complaints functions of handling low-level customer services issues, the initial recording of complaints and communicating with the complainant throughout the process. Amendment 124 to Clause 12 would remove this ability to choose, instead giving PCCs the mandatory responsibility for all these complaints functions. However, the Government’s intention is to ensure that PCCs can choose the model that would work best for them in their local area. As the noble Lord says, this will look different across the country in future as that local choice is made.
PCCs are very well placed to listen to the concerns of their constituents. The reforms will provide PCCs and forces with the flexibility to deliver a complaints service that responds to the needs of their local area rather than trying to operate within some sort of rigid system that does not reflect operational or community differences. For example, a PCC might wish to give his or her force the ability to deliver a more customer- focused complaints handling system before making a judgment on taking on additional responsibilities. However, the Government have acknowledged the concerns raised with regard to different models operating across the country. This is why the Bill enables PCCs to choose to take on only specific duties within a reformed and streamlined framework. Responsibility for the formal handling of complaints will remain with forces or, in the more serious and sensitive cases, with the IPCC.
Lord Bach
I am very grateful to the Minister for giving way. I should have mentioned this and asked her the question in my earlier remarks. A lot of police and crime commissioners want to know, if they decide to extend their powers—I know they will be extended to some extent anyway, but if they are fully extended—whether resources will follow. That is quite an important issue for them, and I wonder whether the Minister can help us.
Baroness Williams of Trafford
My Lords, I will correct this if I am wrong. While I am not guessing, I am assuming that, particularly where you have the model with a mayoral PCC as well, the mayoral precept will enable some of those mayoral functions. On the additional resources, I would like to write to the noble Lord before Report as I would not want to say something to the Committee now that simply was not true.
Amendment 127 to Clause 22 relates to the ability of PCCs to delegate their complaints-related function. The amendment seeks to clarify the difference in language in the subsections of the clause, and I am happy to do that.
The reason for the difference in language between the subsections is that it aims to replicate the language already used in the corresponding Acts. Although subsection (1) uses different language to that in subsections (2) to (4), the policy intention and result is the same. Local policing authorities should and will be able to delegate their complaints-related functions. Regardless of whether any complaints-related functions have been delegated, the local policing body will retain ultimate responsibility for the complaints performance in its area. This follows the same model as chief constables delegating their complaints responsibilities to more junior ranks, where the chief constable is still ultimately responsible for the outcome.
I hope that those comments have reassured noble Lords and that the noble Lord will feel happy to withdraw his amendment.
Lord Paddick
I am grateful to the Minister for that explanation on Amendment 127, which is a probing amendment. I am not as enthusiastic about her response to Amendment 124, and I am grateful that we have the noble Lord, Lord Bach, here as a living, breathing police and crime commissioner who can bring his experience to this. I have to say that, bringing my experience as a police officer, I believe that there would be great benefit if there was one system that members of the public knew and could rely on. For example, it would be of great benefit to the public if the decision on whether complaints were investigated was taken out of the hands of the police.
The Minister said that the purpose of the new provision was to restore trust. If the purpose is to restore trust and a PCC decides not to take up the offer, what are the constituents in a PCC’s area to think about that? However, at this stage, I beg leave to withdraw the amendment.
Lord Paddick
Lord Paddick
My Lords, I fear it will be like this for the rest of the afternoon. Amendment 124A is in my name and that of my noble friend Lady Hamwee, and I shall speak to the other amendment in the group, Amendment 124B.
Clause 14 amends Part 2 of the Police Reform Act 2002 in relation to keeping complainants—people who have complained about the police—informed of the progress of the investigation of their complaint. Subsection (3) substitutes the matters contained within it for those matters that subsection (3) of the 2002 Act required the complainant to be kept informed about. Basically, subsection (3) sets out what the complainant needs to be kept abreast of. One of the matters in the 2002 Act was to keep the complainant informed of,
“any provisional findings of the person carrying out the investigation”.
This requirement is no longer listed in the new subsection (3), and the amendment is to probe why it is no longer a requirement. Amendment 124B relates to the substitution of subsection (9) in Section 21 of the 2002 Act made by Clause 14(7), which again omits “any provisional findings” from the requirements in the 2002 Act. I beg to move.
Lord Harris of Haringey (Lab)
My Lords, I understand absolutely the objective of the amendment moved by the noble Lord, Lord Paddick, and I have a lot of sympathy with what he is trying to get at. However, perhaps there is also need to look at the extent to which the public who have been victims of crime are also kept informed of the progress of investigations into those crimes. In exactly the same principles that the noble Lord, Lord Paddick, has outlined in terms of complaints against police officers, ought they perhaps also be applied to people who have been victims of crime?
Lord Blair of Boughton (CB)
I am slightly concerned about the phrase “provisional findings”, because it does not define when that is in an investigation. I should declare an interest that I was head of the complaints investigation branch of the Metropolitan Police Service, the subtitle for whom was the “Prince of Darkness”. One knew the provisional findings, but one had that word “provisional” in front. It slightly worries me that we are pushing a process forward where the complainant is given information that new information then changes. It feels an odd thing to be doing. I would like to know why it has been withdrawn in this Bill, as it may have been withdrawn on quite sensible grounds.
Baroness Chisholm of Owlpen
My Lords, the current process for keeping complainants and other interested persons updated on the handling of their complaint is overly complicated, with Sections 20 and 21 of the Police Reform Act 2002 heavily prescriptive on what exactly a force, or as the case may be the local policing body or IPCC, must do and when. This often results in a box-ticking process and perverse outcomes rather than any genuine consideration of what is best for the complainant.
The Bill simplifies this process. Clause 14 amends Sections 20 and 21 of the 2002 Act to create a broad statutory duty on forces to ensure that they keep relevant parties updated on the progress of the handling of the complaint, the outcome of the complaint, and any right of review. This allows for many of the various notification duties on appropriate authorities currently scattered throughout Schedule 3 to the 2002 Act to be consolidated into one place, and for Sections 20 and 21 of that Act to be extended beyond just complaints where there was an investigation.
This broad requirement is in line with the wider changes to the complaints system where the various routes for resolving a complaint—for example, disapplication, discontinuance and local resolution—have been replaced with a general duty to consider the reasonable and proportionate response to a complaint. Greater discretion for forces in deciding how to keep the relevant parties updated on progress reflects the wider intention to trigger a culture change in forces in the handling of complaints. We want a system that encourages proper consideration to be given to the needs of the complainant, rather than officers simply following a very set procedure regardless of the nuances of the case.
I want to reassure the noble Lord that the Government fully expect that where there has been an investigation into a complaint, updating complainants on the progress of the handling of the complaint will include forces informing them of any provisional findings of that investigation. In keeping with the overall intention to simplify the complaints system and to empower forces in how they deal with complaints, this is not something we consider is necessary to prescribe in primary legislation. Instead, it is for the IPCC to consider whether what is meant by updating on the progress of the complaint is better explored in IPCC statutory guidance. Guidance may be able to better reflect best practice and the principle that all cases need to be treated slightly differently.
The noble Lord, Lord Harris, asked about keeping victims of crime informed on progress. He makes a valid point about victims of crime, but this is not a matter for these clauses. We have a later amendment about the rights of victims of crime.
Lord Paddick
My Lords, I am very grateful to noble Lords for their contribution to this short debate. I agree with the noble Lord, Lord Blair of Boughton. It could be that giving “provisional findings”, which are not the ultimate findings, could create a false sense of expectation in the complainant and so forth. However, the question was around not whether that should be there but the reason for it being there. As the noble Lord, Lord Blair, said, there may be a sensible reason for taking it out in the new legislation, but I failed to hear a sensible reason for why it was formerly in primary legislation but will no longer be. Perhaps between now and Report we may be able to unearth that reason. I beg leave to withdraw the amendment.
Lord Paddick
“(aa) the complainant (who must be questioned as to whether he wishes the complaint to be recorded) does not indicate a wish that it not be recorded, or”
Lord Paddick
My Lords, Amendment 125 is tabled in my name and that of my noble friend Lady Hamwee. I shall speak also to Amendment 126. In Schedule 5, Part 1 of Schedule 3 to the Police Reform Act 2000 is amended after sub–paragraph (6) by inserting a new sub-paragraph (6A) in relation to when a complaint against police must be recorded. It states that a complaint must be recorded if,
“at any time the complainant indicates a wish for the complaint to be recorded”.
Our amendment adds a requirement that the complainant must be asked whether he wishes the complaint to be recorded and states that unless he positively indicates that he does not wish the complaint to be recorded, it must be recorded.
From a wealth of personal experience in this area, I know that it is very easy for a complainant to be misled, albeit unintentionally, about whether his complaint will be formally recorded or even to be dissuaded from having a legitimate complaint recorded. The current wording gives the police or the local policing body, if it takes over responsibility, the ability not to record a complaint unless the complainant specifically asks that it be recorded. If the police inspector at the front counter tells the complainant not to worry but to leave it to him as he will have a word with the officer concerned and there is no specific request that the complaint be recorded, it could result in a complaint not being recorded when the complainant believes that it has been. This amendment is designed to reduce the chance of that happening.
Amendment 126 relates to a different issue: the conduct of chief officers of police. Part 3 of Schedule 5 is intended to require the referral of all complaints and matters concerning the conduct of chief officers to the Independent Police Complaints Commission by inserting new paragraphs into Part 3 of Schedule 3 to the Police Reform Act 2002. They provide new powers to enable the Secretary of State to specify in regulations that the IPCC must independently investigate all complaints, recordable conduct matters, and deaths and serious injury matters which relate to the conduct of a chief officer or the Deputy Commissioner of the Metropolitan Police.
Assistant commissioners of the Metropolitan Police wear the same badge of rank as, and are considered to be at least the equivalent of, chief constables or chief officers. In fact, they are paid at the highest rate of chief officer, with the exception of the commissioner and deputy commissioner of the Met, a salary equivalent to that of the chief constables of the Police Service of Northern Ireland, Police Scotland, the West Midlands Police and Greater Manchester Police. The assistant commissioner of the City of London Police wears the insignia of, and is considered equivalent to, a deputy chief officer and is outside the scope of this provision and the amendment. Will the Minister explain why assistant commissioners of the Metropolitan Police are not included with the deputy commissioner of the Metropolitan Police as officers complaints about whom must be referred to the IPCC? Our amendments would add assistant commissioners of the Metropolitan Police to the list of compulsory referrals. I beg to move.
Baroness Williams of Trafford
My Lords, I am grateful to the noble Lord, Lord Paddick, for explaining the purpose of the two amendments. The handling of complaints about the police must be customer-focused, simple to understand and transparent throughout. It is widely accepted that the current system is confusing, complicated and, in many cases, unclear. Through the reforms made in the Bill, we are ensuring that cases are dealt with quickly and effectively, for the benefit not just of the public but of officers who have done nothing wrong. Many forces already currently operate customer service teams through which all complaints about the force are filtered and whereby they try to resolve quality-of-service issues as soon as possible. The reforms in the Bill explicitly provide for that sort of model and try to make it as bureaucracy free and straightforward as appropriate.
The evidence is that this approach works. In Derbyshire in 2014-15, for example, 47% of issues raised about the force were handled outside of the formal complaints system. In Northumbria, where the triage team sits in the office of the police and crime commissioner, 36% of issues raised about the force in the first six months of 2014 were handled in this manner, with 92% of complainants happy with how their issue was handled—and this is increasing. The Government want to encourage forces and local policing bodies such as PCCs to adopt this more customer-focused approach and to resolve as many complaints as possible quickly, simply and to the complainant’s satisfaction through this route. Amendment 125 would require complainants explicitly to confirm that they were content for the force or PCC to seek a customer service solution to their issue outside of the formal complaints system. I put it to the noble Lord that this approach risks limiting what forces can achieve through informal resolution.
The Government believe that this confirmation process would lead to fewer issues being dealt with in this way and, contrary to the policy intent, increase the number dealt with in the formal system. We think it right that, unless the complainant has offered an alternative view or the complaint falls into one of the categories outlined in the legislation for why this form of resolution is inappropriate—I shall discuss the safeguards shortly—the force or PCC should first have the opportunity to draw on their experience to seek to resolve the matter through its own customer service processes. I reassure the noble Lord that the Bill includes extensive provisions to ensure the complainant is in control in this process and that forces can resolve issues outside of the complaints system only when it is appropriate to do so.
There is a clear expectation on PCCs, with their new explicit responsibility for oversight of the complaints system locally, as provided for in Clause 21, to ensure clear communication is provided to complainants about their rights when they make a complaint and how the process will work. This includes explaining that, if at any point a complainant wants his or her complaint to be recorded, it will be recorded. If the force pursues a customer service solution that falls short of the complainant’s view on what constitutes a satisfactory resolution, they can request that the complaint be recorded and handled formally. There is a statutory duty at the outset of a complaint to contact the complainant to understand how the complaint might be best resolved. Statutory guidance will also make clear that, 10 days after receipt of a complaint, it should be formally recorded, even if a customer service approach may have been proportionate. This is to ensure that this form of resolution is limited to only those issues that can be resolved quickly. Beyond that, if there is any indication that the complaint might result in disciplinary or criminal proceedings, or might meet the criteria for mandatory referral to the IPCC, it must be recorded.
Finally, there will also be a requirement on forces, to be detailed in regulations or secondary legislation, to keep some information on the issues they resolve outside of the formal complaints system—the name of the complainant, the issue, and how it was resolved. This will allow PCCs locally to scrutinise those data and HM Inspectorate of Constabulary to inspect the robustness of the decision-making of forces in deciding what is suitable for an informal resolution. Given these safeguards, we are satisfied that there is no need for an explicit requirement that the complainant must agree at the outset to an issue being resolved informally. Ultimately, the priority for most complainants is that their complaint is dealt with to their satisfaction and as quickly as possible.
I turn to Amendment 126. The complaints and discipline system is designed on the premise that, unless matters are of exceptional seriousness and sensitivity and are therefore referred to the IPCC, they should be dealt with—in accordance with the legislation—within the force’s chain of command. The exception is where there is no ultimate senior officer, such as would arise where a complaint is made against a chief constable. In these cases, most complaints are investigated by the IPCC but some may end up being investigated by chief constables of other forces. In his independent review of the police disciplinary system in England and Wales, Chip Chapman recommended that all such investigations should be undertaken by an independent body. The Government agree with this recommendation and that is why the Bill introduces a new regulation-making power that will require complaints regarding the conduct of chief officers to be referred to the IPCC to determine whether it should conduct an independent investigation or direct an investigation. However, although the rank of Assistant Commissioner of the Metropolitan Police Service is one of the highest ranks in England and Wales, there is no need to include it in the proposed measure because it can be reasonably expected that the commissioner or deputy commissioner will oversee any investigation. I hope that this clarifies the matter and that, on the basis of my explanation, the noble Lord will feel free to withdraw his amendment.
Lord Paddick
My Lords, I am grateful to the Minister. As far as Amendment 125 is concerned, I have no issue with a complainant being offered the option of informal resolution or a “customer service solution”—I never heard of that when I was in the police service; it shows how things have moved on—or a formal complaint. The problem we keep encountering in this House is the Government saying, “Well, it’s going to be be in statutory guidance and of course, in practice, if it’s a serious complaint or something that should be recorded, it will be recorded”. Unfortunately, the real world is not quite as ideal as the Minister makes out.
As far as Amendment 126 is concerned, I was with the noble Baroness until she said that matters needed to be referred to the IPCC where there was no ultimate senior officer. Quite clearly, in the case of the Deputy Commissioner of the Met, which is a specific rank for which any complaints have to be referred to the IPCC, there clearly is an ultimate senior officer: the Commissioner of the Met. Unfortunately, the explanation given by the noble Baroness does not help me to understand why the Deputy Commissioner of the Met is specifically mentioned.
Baroness Williams of Trafford
Perhaps I can explain a bit further. While new paragraph 5(1)(a) of Schedule 3 to the Police Reform Act 2002, inserted by Schedule 5 to the Bill, does cover the Deputy Commissioner of the Metropolitan Police Service, this is because, in the Police (Conduct) Regulations 2012, the deputy commissioner is treated in the same way as the commissioner. The Secretary of State is responsible for appointing the investigator of any conduct matter relating to both the commissioner and deputy commissioner. There is no mechanism to allow investigations into the deputy commissioner to be conducted internally. I hope that I have not confused the noble Lord further; I am just seeking to clarify the position.
Lord Bach
I hope that the noble Lord will forgive me for asking the noble Baroness about something that she said in her summing up a little while ago about the position of chief constables. She said that any complaint against them would automatically go to the IPCC. There is a view that says that this is slightly harsh and is not necessary and will mean more work for the IPCC in some cases than is necessary. What is the view of the IPCC on that proposal? It seems to some of us that the IPCC is overburdened and overworked. Does it really want the most trivial complaint against a chief constable—they do exist, it has to be said—to have to go to the IPCC without investigation? Is that not too extreme a measure?
Baroness Williams of Trafford
I think I said in my summing-up—if I missed it, I apologise—that most complaints are investigated by the IPCC but some may end up being investigated by chief constables from other forces. I am guessing that those will be the more low-level investigations. Therefore, not absolutely everything has to go to the IPCC. I do not know the IPCC’s view on this but Chip Chapman has recommended that all investigations should be undertaken by an independent body.
Lord Blair of Boughton
Perhaps I may intervene again—and again I declare my interest as a former commissioner. The mailbox of the Metropolitan Police is pretty large and contains lots of complaints about the fact that the commissioner has failed to do something. The commissioner is probably blissfully unaware of thousands of complaints. Is it being suggested that, every time somebody says, “I wish to complain about the Commissioner of Police of the metropolis because Constable Such and Such did not put a ticket on a car outside my house”, that is a complaint against the commissioner? It would be the same for chief constables.
There is a sense here that we are losing sight of the scale of the mailbox. There is a famous story of one of my predecessors who came from outside the force finding out that not all letters that were addressed to the commissioner came to his office. A week later, he realised why—when the mailbags fell in through the door. There has to be a level of reasonableness and, at the moment, I am not hearing that reasonableness. I am hearing the idea that everything will be sent to the IPCC or investigated by another chief constable. We could block the entire system unless we get a degree of reasonableness—and I am not sure where that is going to appear. I put that surmise to the Minister.
Lord Swinfen (Con)
Will my noble friend look at the practicality of the matter, which has been so well explained?
Lord Paddick
My Lords, I am very grateful to those who have contributed to this short debate and to the Minister. As regards the comments of the noble Lord, Lord Blair, my reading of this is that it concerns complaints against the commissioner himself rather than vicarious liability responsibility—which, of course, the commissioner carries for all his officers. The clue lies in the fact that the legislation goes on to talk about “death or serious injury” matters—not that the commissioner is known for using physical violence against people.
Lord Bach
I am so sorry to interrupt again. I wonder whether there is a proper distinction between a complaint per se and a complaint that may be laid vicariously at the commissioner’s or chief constable’s door. Who will make that distinction when the complaint comes in? It will add to the existing bureaucracy and is another reason for listening very carefully to what the noble Lord, Lord Blair, suggested a minute or two ago.
Lord Paddick
I am very grateful to the noble Lord, Lord Bach, and I will leave it to the Government to respond. The deputy commissioner of the Met was, at least at one stage, considered to be a first among equals among assistant commissioners. I will have to read the second part of the Minister’s explanation on that issue. As regards the other matter, again, I will want to read carefully what the Minister said—but at this stage I beg leave to withdraw the amendment.
Lord Paddick
Lord Paddick
My Lords, in moving Amendment 126A, which is also in the name of my noble friend Lady Hamwee, I will speak to Amendment 165A in this group.
Clause 18 deals with sensitive information received by the IPCC and restrictions on disclosing that information. It amends Part 2 of the Police Reform Act 2002 by inserting new Clause 21A, subsection (3) of which defines sensitive information as including,
“information obtained from a government department which, at the time it is provided to the Commission or the paragraph 18 investigator, is identified by the department as information the disclosure of which may, in the opinion of the relevant authority … cause damage to national security, international relations or the economic interests of the United Kingdom or any part of the United Kingdom”.
When this House recently considered the Investigatory Powers Bill, where matters were considered to be related to the economic interests of the United Kingdom it was made explicit that these were only where the economic interests were directly linked to national security. Amendment 126A would insert the wording,
“so far as those interests are also relevant to the interests of national security”,
to make it explicit in this Bill as well as in the Investigatory Powers Bill. Amendment 165A makes a similar change to the term “economic interests” in Clause 35, which amends Schedule 4A to the Police Act 1996 in relation to the restriction on disclosure of sensitive information acquired by Her Majesty’s inspectors of constabulary. I beg to move.
Baroness Williams of Trafford
My Lords, Clause 18 increases the protections afforded to any sensitive information that is obtained by the Independent Police Complaints Commission in the course of its investigations or by a police or National Crime Agency investigator conducting an investigation under the direction of the IPCC. Clause 18 ensures that where the IPCC or investigator receives “sensitive information” it must not disclose that information without the consent of the “relevant authority”, as defined in the clause. To assist the IPCC or investigator in fulfilling this requirement, Clause 18 places a duty on the person providing the information to make the IPCC or investigator aware that the information is sensitive and to provide enough detail to permit the identification of the appropriate “relevant authority”. Clause 35 does likewise in respect of sensitive information received by Her Majesty’s Inspectorate of Constabulary.
“Sensitive information” in this context means: first, that provided by or that which relates to the security and intelligence services; secondly, information derived from interception; and thirdly, information provided by a government department which may, if disclosed, cause damage to national security, international relations or the economic interests of the country or any part of it. In such instances, the government department must identify it as such when it provides the information to the IPCC or investigator. Amendments 126A and 165A seek to narrow the third part of this definition by carving out information which may cause damage to the economic interests of the UK or part of the UK, unless there is a national security link. In effect, this would mean that the IPCC, investigator or HMIC would not need the relevant authority’s consent to disclose certain economically sensitive information that could, if disclosed or handled inappropriately, have a negative economic impact on the country. The drafting approach taken in the Bill in relation to the definition of “sensitive information” is not new. The drafting simply replicates the existing definition in paragraph 19ZD of Schedule 3 to the Police Reform Act 2002, which these provisions replace.
I stress that the primary purpose of Clauses 18 and 35 is not to prevent sensitive information being provided for legitimate reasons, such as to the CPS in the event of criminal proceedings, but, rather, to protect that information and ensure that it is handled appropriately. Simply because a piece of information falls under the definition of “sensitive information” in Clauses 18 or 35, the relevant authority cannot unreasonably withhold its consent to its disclosure; it is a matter of public law that decisions made by the relevant authorities must be both reasonable and rational. The Government are simply closing a gap to provide additional certainty and reassurance around the handling of sensitive information, not to prevent any greater disclosure than is absolutely necessary.
I hope that that has clarified the matter for the noble Lord and that he is content to withdraw his amendment.
Lord Paddick
I am very grateful to the Minister for that lengthy explanation, but it does not answer the question that I asked. The drafting may not be new but my understanding is that it is inconsistent with the Investigatory Powers Bill. We sought clarification and the Government agreed to put it on the face of the Bill that economic interests meant economic interests that are likely to impact on national security. It may be consistent with previous legislation but my understanding is that it is not consistent with the most recent legislation. That is the question that I hoped she would answer. I understand and accept everything that she has said; it is what is missing that is key.
Baroness Williams of Trafford
Perhaps I can provide further clarification, although I am not sure that it will clarify matters much better. Clause 18 talks about,
“the economic interests of the United Kingdom or any part of the United Kingdom”.
Clause 62 of the Investigatory Powers Bill says,
“in the interests of the economic well-being of the United Kingdom so far as those interests are also relevant to the interests of national security”.
There is a variation in the drafting of the two Bills because the provisions serve entirely different purposes. It is right that where authority is being sought to obtain communications data or to issue warrants for the purpose of the economic well-being of the UK, it should be done only where it is also relevant to the interests of national security. In Clause 18 of this Bill, the definition of “sensitive information” is intended to provide a safeguard to ensure that, whenever the IPCC handles particular types of information that originate from the security services or from government departments, it checks with the relevant authority before disclosing that information. The noble Lord does not look convinced but I hope that that has provided further clarification.
Lord Paddick
I need to improve my poker face skills. I am very grateful to the Minister for that explanation. I will read it to see whether I can get the answer to my question from what she has said, but at this stage I beg leave to withdraw the amendment.
Lord Paddick
Lord Paddick
My Lords, in moving Amendment 128 in my name and that of my noble friend Lady Hamwee I will speak also to the other amendments in the group—Amendments 129 and 130. These are probing amendments that relate to which bodies can be designated as being eligible to bring super-complaints against the police.
Bodies are to be designated by the Secretary of State through regulations. Clause 25 inserts a new Section 29B into Part 2A of the Police Reform Act 2002. Subsection (5) of new Section 29B states:
“The Secretary of State must, before making regulations under subsection (3) or (4), consult such persons as the Secretary of State considers appropriate”.
However, it does not require the Secretary of State to consult on subsection (1). Adding in reference to subsection (1) means that the Secretary of State would have to consult before making the regulations that designate which bodies should be capable of bringing super-complaints. Those regulations presumably will set out the criteria referred to in subsections (3) and (4). That means that there will be consultation on those as well.
Amendment 129 lists the three bodies—the Law Society of England and Wales, the National Council of Voluntary Organisations, and Citizens Advice—that, along with others as specified by the Secretary of State, would be made “authorised” persons for the purposes of subsection (2)(d). That gives them a role in designation, as they are likely to know the territory and issues involved, know their members and know which the good non-governmental organisations are, and so on.
Amendment 130 is intended to ensure that the first regulations made under subsections (1), (3) and (4) of new Section 29B are subject to the affirmative resolution process. I beg to move.
Lord Kennedy of Southwark (Lab)
My Lords, this section of the Bill gives the power to designated bodies to make super-complaints to Her Majesty’s Chief Inspector of Constabulary. The complaints can be made where, in the opinion of those bodies, a feature of policing is harming the public and needs to be looked at.
The noble Lord, Lord Paddick, listed three organisations to make these super-complaints to be put on the face of the Bill. I have some sympathy with the amendments that have been put forward, but I understand that they are probing amendments. I hope that when the noble Baroness replies she can give us some indication of the organisations likely to be designated to make these complaints under the regulations. It is important that, when creating these new powers, we have some idea of what the organisations are likely to be. Are those listed in the amendment likely candidates to be designated when this comes into force, or are there others?
Baroness Chisholm of Owlpen
I am grateful to the noble Lords, Lord Paddick and Lord Kennedy, for the opportunity to debate the provisions in the Bill that will create a new system of policing super-complaints.
There are currently three extant super-complaints systems, having been originally created in the Enterprise Act 2002. These systems exist in the commercial sector, the financial system and in payments regulation. All relate to systemic issues affecting consumers relating to private sector organisations. The police super-complaints system, although based on the success of these antecedents, will be the first such system to address issues in the public sector.
A super-complaint is defined in Clause 24 as a complaint that,
“a feature, or combination of features, of policing … by one or more than one … force is, or appears to be, significantly harming the interests of the public”.
Only bodies designated for the purpose of these provisions will be able to make a super-complaint, but any body can be designated if it meets the relevant criteria. Those criteria for designation will, following consultation, be laid out in regulations. The system will be “owned” by the HM Chief Inspector of Constabulary, so as to be sufficiently independent of government. Ultimately, this system will allow charities and advocacy groups to raise systemic issues they identify in policing in a more effective way, leading to the improvement of policing in England and Wales.
I turn now to the noble Lord’s amendments which focus on the regulations relating to designated bodies and the designation process contained in Clause 25. The designated bodies able to make a super-complaint will be set out in regulations. Amendment 128 would require the Government to consult on such regulations. We have provided in Clause 25 for consultation on the regulations setting out the criteria for designation, but we do not believe that it is appropriate to consult each and every time a new body is given designation status. Any body that is so designated will have been assessed as meeting the criteria for designation. The Government believe that the criteria are the key to getting the right bodies involved in the system. This is why it is the criteria rather than the bodies themselves that will be subject to consultation. Following consultation on the criteria, further consultation on the resulting list of designated bodies would be unnecessary and, if conducted every time a body is designated, would be burdensome.
On Amendment 129, the Government agree that the nature of the bodies involved in the super-complaints system is key to its success. That is why we shall be consulting widely on the criteria for designation. Furthermore, the Government intend to include a requirement in the criteria for designated bodies to act as umbrella bodies for smaller organisations. This will ensure that any bodies that notice a systemic issue with policing, but are not designated, are still able to raise an issue through another organisation.
We have engaged with a number of key bodies, including Citizens Advice, in the development of this policy. We will continue to work with these bodies throughout its implementation to ensure that the system works in the public interest. It will of course be open to Citizens Advice, the Law Society and the National Council for Voluntary Organisations to apply for designated body status, but that decision is a matter for them. The Government would welcome the input of your Lordships on any particular bodies or organisations that may work towards the improvement of policing through becoming designated bodies.
Amendment 130 would require the first regulations made in relation to designation to be subject to the affirmative procedure. The Government set out the rationale for applying the negative procedure to these regulations in their delegated powers memorandum. That memorandum has been considered by the Delegated Powers Committee which did not take issue with the application of the negative procedure whether on the first or subsequent exercise of these powers. The negative procedure is consistent with the legislative framework applicable to existing super-complaints systems and I see no good case for departing from it here.
Having given these provisions in the Bill the airing they deserve, I hope that the noble Lord will be content to withdraw his amendment.
Lord Kennedy of Southwark
The noble Baroness has talked about consultation on the regulations. Is there a timescale for when that will take place because obviously the Government will complete their consultation and make a decision before the regulations come into force? Can she give us some idea of when it will be?
Baroness Chisholm of Owlpen
If there is a timescale that we know of, I will write to the noble Lord, but I do not have it here in my notes.
Lord Harris of Haringey
My Lords, it is clear that the Government have given a great deal of thought to the concept of super-complaints. Have they made any assessment of how many such super-complaints might be presented and what proportion of the time of Her Majesty’s Inspectorate of Constabulary is likely to be devoted to looking into such matters?
Baroness Chisholm of Owlpen
We do not know how many super-complaints will be made because it is difficult to judge that. The point about the super-complaints is that they will make an enormous difference to the way things are done. It was interesting to note that in March this year the then shadow Home Secretary, Andy Burnham, held a seminar with the noble Baroness, Lady Lawrence, which brought together groups that are still campaigning for justice, such as the Shrewsbury 24 campaign, the Orgreave Truth and Justice Campaign, and Justice 4 Daniel. A common thread runs through all of these groups but the way the system works at the moment forces them all to plough their own furrow; it does not allow them to join forces. The super-complaint proposal will rebalance the system in their favour and mean that they can join together.
Lord Kennedy of Southwark
My Lords, perhaps I may pursue the point about the regulations one more time. The noble Baroness has said that there is no timescale but that she will write to me if she can find out if there is. I should say to her that this issue is very important to the campaigns she has just listed. If this legislation gets on to the statute book without us knowing where we are with the regulations, of course it cannot come into force. I hope that she will take back to the department and her ministerial colleagues that the consultation should be done with the utmost urgency. There is no point in passing the legislation if people cannot actually make their complaints.
Baroness Chisholm of Owlpen
I do not have a timescale. I do not want to give the noble Lord false information, so it is only fair that I write to him.
Lord Paddick
My Lords, I am very grateful to noble Lords who have contributed to the debate, and for the response given by the Minister. I have a confession to make: I did not write the amendments. I am glad to see that everyone fell into the same trap I did. The intention of Amendment 128, whether or not it would be the effect, is for there to be consultation on the regulations, not each time an organisation is designated. It could be that it is a mistake in the drafting—I can say that because I did not draft them.
The organisations listed in Amendment 129 are suggestions as to who authorised persons should be under the Act, not who the designated bodies should be. The authorised persons are those who can make representations to the Secretary of State to have a particular body designated or removed from the list of designated bodies. That is what I believe I explained when I introduced the amendment. The list that includes the Law Society and so forth is not a list of bodies that we think should be designated, but a list of people who should be authorised persons who can then ask the Secretary of State to add or remove people from the list of designated bodies.
I will read again the view of the Delegated Powers Committee so far as Amendment 130 is concerned, but at this stage I beg leave to withdraw Amendment 128.
Lord Rosser
“Police complaints and the media
(1) Subject to subsection (3), the Prime Minister must commission an independent inquiry into the operation of the police complaints system in respect of relationships between the police and media.(2) The matters that are the subject of the inquiry shall include, but shall not be limited to—(a) how adequately police forces investigate complaints about police officers dealing with people working within, or connected to, media organisations;(b) the thoroughness of any reviews by police forces into complaints of the type referred to in paragraph (a);(c) in those cases where a complaint of the type referred to in paragraph (a) led to a criminal investigation, the conduct of prosecuting authorities in investigating the allegation;(d) whether any police officers took illegal payment to suppress investigations into complaints about relationships between police officers and people working within, or connected to, media organisations;(e) the implications of paragraphs (a) to (d) for the relationships between media organisations and the police, prosecuting authorities, and relevant regulatory bodies, and recommended actions.(3) The inquiry may only start once the Secretary of State is satisfied that it would not prejudice any relevant ongoing legal cases.”
Lord Rosser
My Lords, the amendment would provide for the Prime Minister to commission an independent inquiry into the operation of the police complaints system in respect of relationships between the police and media. It also states that the inquiry may start only once the Secretary of State is satisfied that it would not prejudice any relevant ongoing legal cases.
The objective of the proposed new clause set out in the amendment is to seek to hold the Government to their promise to the victims of press intrusion to hold a second stage of the Leveson inquiry to look at the culture of relations between the police and the press. In November 2012, the then Conservative Prime Minister reminded the victims of press intrusion that when he set up the Leveson inquiry he had also said there would be a second part to investigate wrongdoing in the press and the police, and that his Government remained committed to the inquiry as it was then established. He then went on to say:
“It is right that it should go ahead, and that is fully our intention”.—[Official Report, Commons, 29/11/12; col. 458.]
However, real doubts about the Government’s willingness to honour that promise have arisen. Ministers have subsequently used language that suggests it is no longer a question of when the inquiry will go ahead, but rather of whether it will go ahead.
Police-press relations is a significant area still to be addressed. We have yet to start to make changes to properly put right, once and for all, the kind of wrongs that have now come to light, for example, following the Hillsborough tragedy. Briefings by the police in the immediate aftermath of the tragedy had a profound adverse impact, not just on the families who had lost loved ones, but on thousands who had been at the match and returned home in a state of some trauma, only to read a few days later that the police were blaming them for the deaths of their friends and family. It surely cannot be right that a police force is able, unattributably or otherwise, to brief damning and unproven information to a newspaper. The extent and reasons for such practices, both previously and more recently, must be investigated independently and openly and those practices brought to an end.
Lord Paddick (LD)
My Lords, I support the amendment in the name of the noble Lord, Lord Rosser. The second stage of Leveson is a very important stage of the investigation into the conduct of the police and the media. It is essential that it is carried out as soon as possible, bearing in mind that there may be outstanding criminal cases that need to be dealt with first.
It is understandable that a slightly one-sided picture has been given of the relationship between police and press. There are many entirely appropriate relationships between the media and press which are beneficial to the public interest. For example, appeals for witnesses to a serious crime can receive the wide publicity sometimes required only with the co-operation of the media and local press. There are searches for missing persons, where an appeal needs to be made nationally to try to identify where a vulnerable person might be. Clearly, there are examples of the opposite. Hillsborough is one. Another rather common example is where, sadly, the police brief the media casting doubt on the character of those who died at the hands of the police.
I am not saying that it is entirely a positive relationship but it is necessary for the police to have a relationship with the media. It is important to differentiate between positive and appropriate relationships and negative and entirely inappropriate ones, particularly, as happened with the phone hacking case, where there was at least the opportunity for critics of the police to suggest that their lack of enthusiasm initially to investigate phone hacking by the media might have had something to do with that too-close relationship. For those reasons, I support the amendment.
Lord Kennedy of Southwark
My Lords, I, too, support the amendment moved by my noble friend Lord Rosser. I agree with the comments of the noble Lord, Lord Pannick. I very much support the police. They do a fantastic job for us and put their lives on the line every day to keep us safe.
The noble Lord is right when he talks about the need for an appropriate relationship between the media and the police, and how important that is. Equally, as my noble friend Lord Rosser said, there are obviously times when things go wrong. Clearly what happened at Hillsborough was an absolute tragedy. Can you imagine losing a loved one on that day and then having to endure the abuse in the media which has clearly now been shown not to be true? We should pay tribute to the steely determination of the Hillsborough families to get justice for their loved ones. They not only lost them but saw their names dragged through the mud.
It is important that we get to the point where the Government can clarify that they will proceed with the second stage of Leveson. There are some nuances between the statement we had from the previous Prime Minister and what we had from this Dispatch Box more recently. That difference might just be a few words which mean nothing at all, but we need to be clear that this should go ahead and that the Government are determined that any prosecution dealing with this will proceed.
Baroness Williams of Trafford
My Lords, I thank all noble Lords who contributed to this debate. I join the noble Lord, Lord Kennedy, in paying tribute to the victims of the Hillsborough disaster, which took place not far from where I live.
As the noble Lord, Lord Rosser, explained, this amendment would require the Prime Minister to establish what is colloquially referred to as the Leveson 2 inquiry into the relationships between the police and the media. It is worth noting that the drafting of this amendment goes beyond the terms of reference of the Leveson inquiry. Part 1 examined the culture, practices and ethics of the media; if it goes ahead, Part 2 is to examine wrongdoing in the press and the police, including the failure of the first police investigations into phone hacking and the implications for police and press relations.
This amendment would, for example, extend the remit of Leveson 2 to cover how the police investigated any complaints about their dealings with people connected to the media, and to the conduct of the CPS where complaints led to criminal investigations. This is well outside the scope of the current inquiry terms of Leveson 2. The Government are of the view that it is not necessary to legislate to require Leveson 2 as it is already set up under the Inquiries Act 2005. As the noble Lord will be aware, there are still ongoing criminal cases relevant to the subject matter of the Leveson inquiry. I welcome the fact that subsection (3) of the proposed new clause recognises the importance of not prejudicing those outstanding criminal proceedings. We have always been clear that these cases, including any appeals, must conclude before we consider part 2 of the inquiry. Given this, and the fact that we already have an appropriate legal framework in the Inquiries Act, it is not an appropriate matter for further legislation. There is an established process in place for taking this matter forward. On that basis, I hope the noble Lord will withdraw his amendment.
Lord Rosser
The Minister referred to subsection (3) in the amendment, which states:
“The inquiry may only start once the Secretary of State is satisfied that it would not prejudice any relevant ongoing legal cases”.
She also made reference to Leveson 2. Is it the Government’s position that once ongoing cases have been determined, the second stage of Leveson will take place, or—as I think the Minister said on behalf of the Government—that once outstanding cases have been resolved, the Government will only consider whether to proceed with the second stage of Leveson? Can the Minister clarify what she said? Are the Government saying that once outstanding cases have been resolved, Leveson 2 will take place, or is the Minister simply confirming what now appears to be the Government’s stance—unlike the promise that was given—that they will only consider whether to move to the second stage of Leveson?
Baroness Williams of Trafford
It is the latter. We will make a decision on Leveson 2 once the outstanding cases have been concluded.
Lord Rosser
Can the Minister say why the position has changed from the very clear and specific commitment given by the previous Prime Minister that the second stage of Leveson would take place?
Baroness Williams of Trafford
My Lords, both the current Prime Minister and the previous Prime Minister were very clear that all the cases of Leveson 1 should be concluded before Leveson 2 is considered.
Lord Rosser
Is the Minister saying on behalf of the Government that the previous Prime Minister did not give a commitment that the second stage of Leveson would take place? Is she really saying on behalf of the Government that the previous Prime Minister gave a commitment only to consider whether the second stage of Leveson should take place?
Baroness Williams of Trafford
My Lords, I would have to look at the exact words that the previous Prime Minister used before I contradicted the noble Lord. I certainly do not want to contradict the noble Lord. In terms of the process, both the current Prime Minister and the previous Prime Minister were clear that Leveson 2 could not proceed until Leveson 1 was concluded.
Lord Rosser
I find the Government’s response most unsatisfactory but at least the Minister has confirmed that there has been a complete shift in the Government’s stance. I will say what I think: the Government have now gone back on the very clear undertaking that was given by the previous Prime Minister that the second stage of Leveson would take place.
Baroness Williams of Trafford
My Lords, I hope I did not make it clear that we have gone back on the decision but we will make a decision on Leveson 2 once those outstanding cases have been concluded, which is rather different from going back on what was said.
Lord Rosser
The promise that was given was that there would be a second stage of Leveson. If the Government are now saying that once the outstanding cases are concluded they will only consider whether they should move to a second stage of Leveson, that is going back on the promise that was given. It is no longer specific. Does the Minister not agree?
Baroness Williams of Trafford
I think we are going to have to agree to differ that we have not gone back but we will consider it once those cases have concluded.
Lord Rosser
I accept that the Committee will not want me to continue with an argument over the difference in wording, but I will simply restate my stance that for the Government now to say that they will only be considering a second stage of Leveson is not what the previous Prime Minister said in the promise he gave to the victims of press intrusion. I strongly regret the answer that we have received from the Government today, but nevertheless beg leave to withdraw the amendment.
Lord Paddick
Lord Paddick
My Lords, in moving Amendment 132 I will speak also to our Amendments 135, 136 and 137 in this group and in support of Amendments 133 and 134, in the name of the noble Lord, Lord Rosser.
Clause 27 relates to investigations by the IPCC of concerns raised by whistleblowers and inserts a new Part 2B into the Police Reform Act 2002. If we were asking for this clause to not stand part of the Bill, it would be a case of 2B or not 2B—but that is not what we are asking for. I am just checking to see whether noble Lords are awake. New Section 29D of the 2002 Act defines a whistleblower as a person who,
“raises a concern … about a police force or a person serving with the police”,
and who is,
“under the direction and control of a chief officer of police”,
at the time. However, it does not cover cases where the whistleblower is currently under the direction and control of a chief officer. One potential scenario is where the whistleblower is a witness to an incident that happened before he or she joined the police service, and wishes to draw the matter to the attention of the IPCC. Our Amendment 132 would legislate for that scenario.
I move on to Amendments 135, 136 and 137. New Section 29I of the 2002 Act allows the Secretary of State, by regulations, to set out the circumstances where the identity of the whistleblower may have to be disclosed. This may be done only for permitted disclosure purposes, one of which is,
“the institution or conduct of criminal proceedings”.
Our concern is that a whistleblower may not realise that his or her identity may be revealed if the investigation turns into a criminal one, and that the whistleblower should be informed at the outset that this might be the case, so that they can withdraw the concern if they are worried by that prospect. Amendment 135 addresses that issue.
New Section 29E of the 2002 Act sets out the actions of the IPCC if it chooses not to investigate, including making recommendations in the light of the concern. Subsections (4) and (5) allow the Secretary of State to make regulations in relation to such a scenario, including, in (5)(a), to,
“describe the kinds of recommendations that the Commission may make”.
Our Amendment 136 is aimed at ensuring that the IPCC is not restricted as to what recommendations it can make by adding that the Secretary of State,
“may not specify an exclusive list of recommendations”.
In new Section 29L of the 2002 Act, the Secretary of State is required to consult various bodies before making regulations about whistleblowers. We believe that organisations representing police officers and staff should be included in the list of groups who must be consulted. Our Amendment 137 makes this change. We also support, as I mentioned, Amendments 133 and 134, in the name of the noble Lord, Lord Rosser. I beg to move Amendment 132.
Lord Kennedy of Southwark
My Lords, this section of the Bill deals with whistleblowing and investigations by the IPCC. It provides a new power for the IPCC to investigate matters raised by a police whistleblower without the matter having to be raised with the police force concerned, and provides further powers to protect the identity of the individual or individuals concerned. All the amendments in this group are in the names of the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee, with the exception of Amendments 133 and 134 in the name of my noble friend Lord Rosser.
Amendment 132 seeks to provide as much clarity as possible and allows for the eventuality that the person making a complaint could still be under the direction and control of a chief officer of police. This amendment raises an interesting point, which was highlighted by the noble Lord, Lord Paddick, when he presented his scenario to the House a few moments ago. I hope that when the Government respond they will be as clear possible in their reasoning if they do not think the amendment is necessary.
The amendments in the name of my noble friend seek to add clarity to this section of the Bill by making clear that these provisions cannot be used if the matter is subject to an ongoing investigation. Amendment 134 would allow for whistleblowing protections to be applied to police witnesses. These are good amendments that would strengthen what is proposed by the Government.
When reading and thinking about Amendment 135, I was not completely convinced that it was either necessary or should in fact be there. Having said that, I listened to the points made by the noble Lord, Lord Paddick, and I think that he persuaded me on those.
I am not sure what Amendment 136 adds to the Bill as it would not put in the Bill an exclusive or exhaustive list. Amendment 137 is completely correct: organisations representing police officers and staff must be consulted before regulations are made concerning this section of the Bill. It is not good enough to rely on the subsection that talks about other organisations that are deemed appropriate. Those organisations deserve to be in the Bill when it leaves this House.
Baroness Chisholm of Owlpen
I am grateful to the noble Lords, Lord Paddick and Lord Kennedy, for the opportunity to debate the provisions in the Bill that will strengthen protections for police whistleblowers. The Government are committed to ensuring that those working for the police have the confidence to come forward to report concerns of malpractice and misconduct within the service.
Forces should, and do, provide channels for staff to raise such issues in confidence. However, Her Majesty’s Inspectorate of Constabulary has found that the quality of reporting arrangements and support offered to whistleblowers varied considerably by force, and a key concern was a lack of trust in confidential reporting. That is why, through Clause 27 and Schedule 6, we are creating a specific power for the Independent Police Complaints Commission to investigate whistleblowing allegations. If the IPCC decides to investigate, it does not have to refer the matter to the force unless the concern is about a conduct-related matter for the purposes of Part 2 of the Police Reform Act 2002. Even if it decides not to investigate, it will have to take all reasonable steps to ensure that the whistleblower’s identity is protected. These changes will give officers and staff much greater assurance that their concerns will be considered objectively and discreetly.
I have listened with interest to the points raised by the noble Lords, Lord Paddick and Lord Kennedy, and on two points I have some sympathy—I see that I have surprised the noble Lord, Lord Kennedy. The first is dealt with in Amendment 132, which seeks to modify the definition of a whistleblower to include those raising a concern about matters that occurred within a police force prior to them joining the police. The legislation as currently drafted allows for existing and former members of a police force to raise concerns about matters that occurred while they were serving. It is evident that some cases of police misconduct and malpractice can go unreported for some time, and it may be appropriate that there be some scope for this to be brought to light, as prescribed under new Part 2B, by a whistleblower who had joined the force at a later stage.
Amendment 133, tabled by the noble Lord, Lord Rosser, and spoken to by the noble Lord, Lord Kennedy, addresses the concern that there is a risk under the new provisions that a police officer or staff member interviewed as a witness in connection with a Part 2 investigation by the commission could be deemed a whistleblower, and that this could lead to confusion and complexity. Amendment 133 would prevent the IPCC having to start a new investigation where one is already under way in relation to the concern that has been raised. I am sympathetic to that point.
However, it is not the intention of the legislation to capture those providing factual information in an existing investigation. Rather, the aim of the legislation is to encourage whistleblowers to come forward and capture those concerns that are not being investigated but, in the public interest, should be considered independently by the IPCC and subject to its recommendations.
For this reason, I have less sympathy with Amendment 134, which would allow the IPCC discretion to confer whistleblowing status on any individuals providing evidence in existing investigations. We do not wish to create an expectation among police witnesses that the IPCC could offer them protections in return for giving their evidence. I understand that the IPCC has concerns about the protections available for those who provide it with evidence, but this is a much broader issue which needs be considered in the longer term, beyond the narrow confines of the whistleblowing provisions and in consultation with all relevant policing stakeholders.
Amendment 135 would impose an express duty on the IPCC to inform a whistleblower that his or her identity may be disclosed in the course of any criminal proceedings and to give the whistleblower an opportunity to withdraw the concern. The legislation is quite clear on the protection of anonymity and the circumstances in which a whistleblower’s anonymity might cease to be protected. As well as criminal proceedings, such circumstances could, for example, include the interests of national security and allegations of misconduct against the whistleblower him or herself. It is not practicable for the primary legislation to include every possible prescription. We would expect the IPCC to do its best to ensure that police officers were aware of the limitations of anonymity before they raise their concern, as I do not believe that it would be practical or desirable to provide for a concern to be withdrawn or unsaid by a whistleblower.
Guidance will support the new provisions, including an update of the College of Policing’s Reporting Concerns guidance, to promote awareness and understanding of these important reforms for whistleblowers. The protections offered by the new process that the Government are providing for whistleblowers can only go so far, and certainly not at the expense of allowing criminals to escape justice.
Amendment 136 would restrict the power of the Secretary of State to stipulate the matters on which the IPCC can make recommendations to a police force in cases where it has decided not to investigate a whistleblower’s concerns. I reassure the noble Lord, Lord Paddick, that the intention is not to provide the Secretary of State with the power to prescribe an exclusive list but merely to describe the kinds of recommendations that the IPCC may make. The purpose of the provision is to assist the IPCC in those cases where it decides, with the whistleblower’s consent, to refer the matter to the appropriate authority.
Finally, in response to Amendment 137, the Bill already requires the Secretary of State to consult on the whistleblowing regulations with police staff associations as members of the Police Advisory Board for England and Wales. This matter was discussed in the House of Commons and subsection (5) of new Section 29M to the Police Reform Act 2002 was inserted on Report there to provide for this requirement.
On the understanding that I will consider further, in advance of Report, Amendments 132 and 133, I ask the noble Lord, Lord Paddick, to withdraw his amendment.
Lord Kennedy of Southwark
I was pleased that the Minister was sympathetic to the point I made on Amendment 133; that is certainly progress. My noble friend raised an important point. We do not want it not to be addressed in legislation on the suggestion that it will come back as guidance, and then we have as an unintended consequence when the guidance is not strong enough that someone makes a complaint and what we thought could not happen does. We need to reflect on that, and perhaps the Government could come back on Report, because I think my noble friend has identified an important issue: we would not want a conflict there to cause problems in future.
Lord Paddick
I am very grateful to the Minister for her explanation and for admitting the concern of Her Majesty’s Inspectorate of Constabulary that support for whistleblowers at present is patchy. We welcome the changes that the legislation brings in terms of reassurance to whistleblowers. I am grateful that the noble Baroness has undertaken to take away our Amendment 132 to see whether anything can be done.
I am not sure that whistleblowers will be reassured by the noble Baroness’s response to Amendment 135, that the IPCC will do its best to keep their identity secret. Again, we are discussing whether something should be in the Bill or in statutory guidance, and if in statutory guidance it will be adhered to in the real world.
On Amendment 136, we understand that it is not the intention to restrict the recommendations that the IPCC can make in response to an issue of concern raised by a whistleblower that is not investigated by the IPCC. However, perhaps the Minister might consider putting in statutory guidance the fact that it is not the intention of the legislation to restrict the number or type of recommendations that the IPCC can make. I will reflect on what she said about Amendment 137, which appears to be a reasonable explanation. In the meantime, I beg leave to withdraw Amendment 132.
“(c) condition A, B or C is satisfied in relation to the person. (3AA) Condition A is that the person ceases to be a member of a police force after the allegation first comes to the attention of a person mentioned in subsection (3A)(a).(3AB) Condition B is that the person had ceased to be a member of a police force before the allegation first came to the attention of a person mentioned in subsection (3A)(a) but the period between the person having ceased to be a member of a police force and the allegation first coming to the attention of a person mentioned in subsection (3A)(a) does not exceed the period specified in regulations under this section.(3AC) Condition C is that—(a) the person had ceased to be a member of a police force before the allegation first came to the attention of a person mentioned in subsection (3A)(a),(b) the period between the person having ceased to be a member of a police force and the allegation first coming to the attention of a person mentioned in subsection (3A)(a) exceeds the period specified for the purposes of condition B, and(c) the alleged misconduct, inefficiency or ineffectiveness is such that, if proved, the person could have been dealt with by dismissal if the person had still been a member of a police force.(3AD) Regulations made by virtue of subsection (3A) as they apply in a case where condition C is satisfied in relation to a person must provide that disciplinary proceedings may be taken against the person in respect of the alleged misconduct, inefficiency or ineffectiveness only if the Independent Police Complaints Commission determines that taking such proceedings would be reasonable and proportionate having regard to—(a) the seriousness of the alleged misconduct, inefficiency or ineffectiveness,(b) the impact of the allegation on public confidence in the police, and(c) the public interest.(3AE) Regulations made by virtue of subsection (3A) may make provision about matters to be taken into account by the Independent Police Complaints Commission for the purposes of subsection (3AD)(a) to (c).”
Baroness Williams of Trafford
My Lords, the important amendments in this group relate to the circumstances in which disciplinary action may be taken against former police officers and former special constables.
Clause 28 will allow for the extension of the disciplinary regime to former officers where an allegation arose before they resigned or retired, or arose within a period of time following their resignation or retirement. The relevant period will be specified in regulations and we have made it clear that we intend to specify 12 months. On Report in the Commons, the then Policing Minister undertook to bring forward amendments which would set aside the 12-month time limit in exceptional circumstances. The government amendments in this group make good on that commitment.
I start by recognising, as the whole House does, that the vast majority of police officers and special constables conduct themselves with absolute integrity. They serve our communities with distinction and loyalty throughout their careers and, in doing so, demonstrate the values set out in the College of Policing’s Code of Ethics on standards of professional behaviour. Nevertheless, and regrettably, a small minority do not meet the high standards of professionalism that the public rightly expect. The public also expect those suspected of serious misconduct to be subject to formal disciplinary proceedings and that, where officers are in the wrong, they are held to account for their actions. Indeed, that is what both the public, and the majority of decent, dedicated and hard-working police officers in this country deserve.
The Bill already contains significant reforms to increase the accountability of former police officers. As I have indicated, the provisions in Clause 28, and the accompanying regulations, will ensure that where an allegation that could have led to dismissal had the officer still been serving comes to the attention of a force within 12 months of an officer’s resignation or retirement, or where an individual resigns while an investigation is ongoing, this can be investigated or continue to be investigated and that, where appropriate, disciplinary action can be taken to hold the officer to account for serious wrongdoing. Where a case is proven, the new police barred list will ensure that the individual concerned is prevented from future service in policing.
These are important steps, but we need to go further, particularly in the wake of high-profile cases where there is a perception that retired officers suspected of committing the most serious acts of gross misconduct have not been held to account where such acts cause serious harm to public trust and confidence in policing. In these cases, which can emerge long after individuals have left policing, there is more to be done to prevent the perception that officers who have left policing are able to evade accountability. We recognise the strength of feeling in relation to such cases and, in particular, the public concern that police officers who commit the most serious acts of wrongdoing should be held to account for their actions. The Government also recognise the importance of ensuring that the measures introduced are proportionate for policing as a whole and fair for individual officers.
The amendments that stand in my name achieve this important principle of accountability and do so in a way that is robust, fair and proportionate. In effect, these create the new exceptional circumstances test, which will be applied by the IPCC and, in due course, by the director general of the Office for Police Conduct, following the reforms to the IPCC. In our view it is right that the decision as to whether the exceptional circumstances test is met is taken by an organisation independent of government and free from any politicised decision-making. The IPCC carries out its role and functions in a way that is well established within the sector as the independent watchdog for policing.
It would be only in those cases where this test is met and the IPCC has determined that it would be reasonable and proportionate to do so that disciplinary proceedings could be instigated. In deciding whether the exceptional circumstances test is met, the IPCC will have to have regard to the seriousness of the alleged misconduct, inefficiency or ineffectiveness, the impact of the allegation on public confidence in the police and the public interest. We will set out in regulations the matters to be taken into account by the IPCC in making such a determination.
This will mean that disciplinary proceedings can be brought in relation to the most serious matters which are considered of an exceptional nature where serious and lasting harm has been caused to public confidence in policing as a result of the wrongdoing. As with the original provisions set out in Clause 28, the exceptional circumstances test will not operate retrospectively. As such, these provisions will apply only to those officers who are serving on or after the date that they come into force. Where there is a finding that the former officer would have been dismissed at a subsequent misconduct hearing, the individual will be barred from future service in police and other law-enforcement agencies.
Amendment 138 gives effect to these changes in respect of former police officers, Amendment 140 in respect of former special constables and Amendment 144 in respect of former MoD police officers. Amendments 139, 141 and 145 clarify that, in cases where the investigation or disciplinary proceedings concerning the former officer, special constable or member of the Ministry of Defence Police arise from a decision to reinvestigate a matter previously closed, this can lead to disciplinary proceedings only in cases which either meet the exceptional circumstances test or where the reinvestigation commences within the specified time limit. Amendments 160, 161 and 162 are consequential on the main amendments and the changes to the governance of the IPCC. They provide that, in future, these determinations will be made by the director general of the Office for Police Conduct.
Amendments 149, 150 and 151 clarify the operation of the police advisory list. The amendment makes it clear that the duty on chief officers and others to report officers to the College of Policing applies only in the case of officers who at the time of leaving the force are under active investigation. The amendments will mean that in circumstances where an officer was previously under investigation while serving but the investigation concluded with no disciplinary proceedings being brought and subsequently the officer leaves the force, the duty to report the officer to the college shall not apply. This eliminates potential ambiguity in the legislation and makes it clear that reports are required only when an individual is subject to an ongoing investigation.
Amendments 142 and 143, in the name of the noble Lord, Lord Rosser, are directed at the same end as the key government amendments in this group. I hope that, having heard my explanation of the government amendments, the noble Lord is satisfied that they deliver a similar outcome. I commend the government amendments to the Committee and I beg to move Amendment 138.
Lord Paddick
My Lords, we broadly welcome the government amendments in this group and, subject to what the noble Lord, Lord Kennedy of Southwark, has to say on the Labour amendments, they seem to cover similar ground.
I have some questions, but I agree with the Minister that the overwhelming majority of police officers are honest, decent people who want only to do their best to protect and serve the public. However, if an officer has left the service and, within 12 months, an investigation takes place which, if the officer was still serving, could have resulted in that officer being sacked, what sanctions would be available against such an officer, other than their name being added to the banned list?
I understand that “exceptional circumstances”, in terms of the most serious acts of wrongdoing, needs to be defined by an independent body. We will come later on in our considerations to talk about the Independent Police Complaints Commission and whether it is truly independent. It is slightly concerning that one criterion that the IPCC would have to look at, in deciding what action to take, is the impact on public trust and confidence in the police, because it could take the decision that the impact of exposing serious misconduct through an investigation would have such a detrimental impact on that trust and confidence that it would use it as a reason not to investigate rather than an obligation to do so. So we have to be very careful about the grounds on which the IPCC should or should not consider something to be exceptional wrongdoing.
Clearly, many members of the public will be very concerned, or disappointed, that the legislation will not be retrospective, particularly with regard to those involved in the aftermath of the Hillsborough disaster. The concern is not with the rank and file officers in that case; the concern is with what happened in the aftermath, and the leadership exercised at Hillsborough. However, as I say, we are generally supportive of the government amendments.
Lord Kennedy of Southwark
My Lords, first, I associate myself with the comments made by the Minister and by the noble Lord, Lord Paddick, in paying tribute to the police and how they conduct themselves. They are a fantastic group of people, who protect us every day, and we are very lucky to have them looking after us.
As we have heard, this section of the Bill concerns disciplinary proceedings against former police officers and former special constables, and the amendments in this group are to both the relevant clauses and schedules. Generally, I am content with the government amendments, and supportive of them. My noble friend Lord Rosser tabled Amendments 142 and 143 before the Government tabled their amendments, and we are very happy with what the Government have proposed.
I accept entirely the point that the noble Lord, Lord Paddick, made about “exceptional circumstances” being defined by an appropriate body. Could the Minister give us some idea what the Government’s thinking is on that matter? Having said that, I support the government amendments.
Lord Condon (CB)
My Lords, I apologise for not being here at the start of this grouping; I intended to speak but I was slightly delayed. I want to add my support to the Government, to the Opposition and to the noble Lord, Lord Paddick, for moving these amendments. It is vital for public confidence that there should be no sense that police officers, once retired, can somehow escape the consequences of actions that, in other circumstances, would have been dealt with by discipline. Certainly, as a former commissioner, I accept that until I draw my last breath I should be accountable for everything that I did during my time as a police officer. I say that with a clear conscience but, if there were any aspect that could have led to a criminal case or disciplinary case, I would of course want that to be tested and examined with the full rigour of the law or disciplinary process, and I would want the same to apply to other people who had retired.
My only reservation—it is not even really a reservation—is that, for more junior officers in particular, a line can never be drawn under their service and what they did as police officers, and they should be held accountable. I think that they and their relatives would take comfort—when looking at an incident that was, perhaps, 20 or 30 years old, where the law, public morality around an issue, or cultural issues may have changed—that there is some test that prevents vexatious or frivolous complaints from that earlier time being put into a process. I take enormous comfort that in, for example, Amendment 142 in the names of the noble Lords, Lord Rosser and Lord Paddick, there is a pretty high bar that the Secretary of State has to determine that investigating and, if appropriate, hearing a case is both necessary and proportionate. Those words will be of enormous comfort to the vast majority of retired police officers—men and women who have sometimes put their lives at risk serving the public. They would want to feel that their honourable service has been recognised. I wholeheartedly support the Bill, what is behind these amendments and the spirit of the amendments moved by the Opposition.
Lord Blair of Boughton
My Lords, I also apologise for not joining this particular part of the debate earlier. I absolutely agree with and amplify what my noble friend Lord Condon has said. Part of the difficulty for some of the most senior officers in the system, which my noble friend and I and the noble Lord, Lord Paddick, obviously are—we therefore have to declare interests to your Lordships—is that you end up during your period of service, particularly the period of top command, with cases that are headlines for years and which are investigated and investigated. It would mislead the House to say that my noble friend Lord Condon and I have not spoken about it—we have, although not in the Chamber. I urge those putting forward Amendment 142, the Government and the Opposition, to keep the words “necessary and proportionate” in mind, otherwise there is no end to some of these cases. This is a matter that our legislature needs to think about as it brings forward this kind of amendment. I agree absolutely with my noble friend, and I am sure that I speak for other noble Lords who have been senior police officers, that this is the right way forward.
Baroness Williams of Trafford
My Lords, I thank the noble Lords who have responded to both the government amendments and the other amendments. The noble Lord, Lord Paddick, talked about the ultimate sanction for someone who had retired. The ultimate sanction is that the officer is found to have committed gross misconduct at a public misconduct hearing, with the panel finding that the officer would have been dismissed, and, therefore, as a consequence, should be added to the police barred list. Inclusion on the police barred list would see the officer banned from any future service in policing and added to the published list for a period of five years. Perhaps the noble Lord was referring to a police officer in this situation who had retired anyway and had no intention of going back into the police. However, if I had served 40 years in an organisation, such a judgment would be a pretty awful outcome for my career. Therefore, although there would be no actual effect on the person’s life, the ultimate judgment of misconduct in public office would fulfil that purpose.
Lord Paddick
I am grateful to the noble Baroness for giving way but my understanding is that, in the past at least, it has been possible in exceptional circumstances for a disciplinary authority to reduce the pension, for example, of somebody who is dismissed or forced to resign from the police service. Will the noble Baroness write to me explaining whether that sort of sanction might be available?
Baroness Williams of Trafford
I will certainly write to the noble Lord. I can envisage such a situation where somebody was sanctioned before they retired. In fact, I have the answer—the cavalry arrived in the nick of time. The measure will not directly impact an officer’s pension. However, if criminal activity is identified following an investigation and the officer is convicted, it will be open to the force, as now, to apply for some of the officer’s pension to be forfeited.
The noble Lord, Lord Kennedy, was disappointed that the measure was not retrospective in circumstances such as Hillsborough. I think that most noble Lords would share that disappointment. However, we make laws in line with established principles. It is in line with established principles that new laws generally should not be retrospective. They will apply only to officers who are serving when the relevant provisions are commenced. These matters do not in any way affect criminal investigations and prosecutions which, as now, can be pursued at any stage. So, yes, it is disappointing, but it is in line with established practice.
The noble Lord, Lord Kennedy, asked about the exceptional circumstances. I repeat that the IPCC will have regard to the seriousness of the alleged misconduct, the inefficiency or the ineffectiveness, the impact of the allegation on public confidence in the police and the public interest. I thank the noble Lords, Lord Blair and Lord Condon, for making the very important point about the necessity and proportionality of these measures.
The period specified”
“(c) condition A, B or C is satisfied in relation to the person. (2BA) Condition A is that the person ceases to be a special constable after the allegation first comes to the attention of a person mentioned in subsection (2B)(a).(2BB) Condition B is that the person had ceased to be a special constable before the allegation first came to the attention of a person mentioned in subsection (2B)(a) but the period between the person having ceased to be a special constable and the allegation first coming to the attention of a person mentioned in subsection (2B)(a) does not exceed the period specified in regulations under this section.(2BC) Condition C is that—(a) the person had ceased to be a special constable before the allegation first came to the attention of a person mentioned in subsection (2B)(a),(b) the period between the person having ceased to be a special constable and the allegation first coming to the attention of a person mentioned in subsection (2B)(a) exceeds the period specified for the purposes of condition B, and(c) the alleged misconduct, inefficiency or ineffectiveness is such that, if proved, the person could have been dealt with by dismissal if the person had still been a special constable.(2BD) Regulations made by virtue of subsection (2B) as they apply in a case where condition C is satisfied in relation to a person must provide that disciplinary proceedings may be taken against the person in respect of the alleged misconduct, inefficiency or ineffectiveness only if the Independent Police Complaints Commission determines that taking such proceedings would be reasonable and proportionate having regard to—(a) the seriousness of the alleged misconduct, inefficiency or ineffectiveness,(b) the impact of the allegation on public confidence in the police, and(c) the public interest.(2BE) Regulations made by virtue of subsection (2B) may make provision about matters to be taken into account by the Independent Police Complaints Commission for the purposes of subsection (2BD)(a) to (c).”
The period specified”
“(c) condition A, B or C is satisfied in relation to the person. (1BA) Condition A is that the person ceases to be a member of the Ministry of Defence Police after the allegation first comes to the attention of a person mentioned in subsection (1B)(a).(1BB) Condition B is that the person had ceased to be a member of the Ministry of Defence Police before the allegation first came to the attention of a person mentioned in subsection (1B)(a) but the period between the person having ceased to be a member of the Ministry of Defence Police and the allegation first coming to the attention of a person mentioned in subsection (1B)(a) does not exceed the period specified in regulations under this section.(1BC) Condition C is that—(a) the person had ceased to be a member of the Ministry of Defence Police before the allegation first came to the attention of a person mentioned in subsection (1B)(a),(b) the period between the person having ceased to be a member of the Ministry of Defence Police and the allegation first coming to the attention of a person mentioned in subsection (1B)(a) exceeds the period specified for the purposes of condition B, and(c) the alleged misconduct, inefficiency or ineffectiveness is such that, if proved, the person could have been dealt with by dismissal if the person had still been a member of the Ministry of Defence Police.(1BD) Regulations made by virtue of subsection (1B) as they apply in a case where condition C is satisfied in relation to a person must provide that disciplinary proceedings may be taken against the person in respect of the alleged misconduct, inefficiency or ineffectiveness only if the Independent Police Complaints Commission determines that taking such proceedings would be reasonable and proportionate having regard to—(a) the seriousness of the alleged misconduct, inefficiency or ineffectiveness,(b) the impact of the allegation on public confidence in the police, and(c) the public interest.(1BE) Regulations made by virtue of subsection (1B) may make provision about matters to be taken into account by the Independent Police Complaints Commission for the purposes of subsection (1BD)(a) to (c).”
The period specified”
Baroness Hamwee
Baroness Hamwee (LD)
We also have Amendment 148 in this group and the Government have Amendment 147. These are not such big issues but are the sort of thing that we try to cover in Committee. Clause 29 addresses the police barred list and the police advisory list. Clause 29(6) states:
“The Secretary of State may by regulations … make provision that … corresponds or is similar to that made by Part 4A of the Police Act 1996”.
We are not at this point querying the Police Act or Part 4A of it, but rather the words “similar to”. I understand the need to make regulations which will correspond with something. That seems to follow naturally, although sometimes the Delegated Powers and Regulatory Reform Committee may comment on that. However, the power to make similar regulations seems potentially a wide provision and I am not sure what it means. I hope that the Minister will explain that in responding to Amendment 146, which is a probing amendment.
Government Amendment 147 seems one of the least contentious bits of today’s business. As regards Amendment 148, Schedule 8 contains a provision about the effect of including someone in the police barred list. Certain people are required to check the barred status of potential employees or appointees. The persons are listed as being,
“a chief officer of police; a local policing body; the chief inspector of constabulary; the Independent Police Complaints Commission”,
but also,
“a person specified in regulations”.
Again, there is rather wide scope in that latter provision which could have wide implications. Our Amendment 148 would provide for an affirmative resolution to be passed before the regulations were introduced. One is so pleased by little victories. I am delighted that the Minister has added her name to Amendment 148, which we will be very happy to move in due course. I beg to move Amendment 146.
Baroness Chisholm of Owlpen
My Lords, as the noble Baroness, Lady Hamwee, explained, this group of amendments responds to two issues raised by the Delegated Powers and Regulatory Reform Committee in its report on the Bill in respect of provisions in Clause 29 and Schedule 8, which provide for the creation of a new police barred list and a police advisory list to be held by the College of Policing.
The first issue raised by the Delegated Powers Committee related to the regulation-making power in Clause 29(6), which enables provision to be made which corresponds or is similar to that made by new Part 4A of the Police Act 1996 and which relates to a person who is or has been employed or appointed by a quasi-policing body. As the committee pointed out, certain aspects of the operation of the police barred and advisory lists will be determined by regulations made under new Part 4A of the 1996 Act and it will most likely be necessary, when exercising the power in Clause 29(6), also to make provision corresponding or similar to that contained in such regulations.
I am grateful to the Delegated Powers Committee for highlighting this gap in the regulation-making power in Clause 29(6), which Amendment 147 will address. The amendment will enable regulations made under Clause 29(6) to make provision that corresponds or is similar to that made by or under new Part 4A of the 1996 Act.
Baroness Hamwee
My Lords, I am indeed happy. The insertion of the words in Amendment 147 give the clause a completely different meaning. I beg leave to withdraw Amendment 146.
Lord Paddick
Lord Paddick
My Lords, in moving Amendment 147A, which is also in the name of my noble friend Lady Hamwee, I will speak to our other amendments in this group, Amendments 147B, 150A and 151A.
Schedule 8, which is to be inserted as part of Part 4A of the Police Act 1996, outlines the procedures with regard to the police barred list and a duty to report dismissals to the College of Policing, which is responsible for maintaining the list. Amendment 147A removes the requirement to report cases where a civilian police employee has been dismissed for reasons of efficiency or effectiveness. The amendment probes whether the barred list should be confined to wrongdoing such as dishonesty or the inappropriate use of violence rather than a person being deemed to be inefficient or ineffective.
Amendment 147B has a similar effect on the provisions in new Section 88A(6), which defines “dismissed”. As the noble Baroness, Lady Chisholm of Owlpen, just said, someone’s employment prospects could be fundamentally affected by being placed on the police barred list. Does she not think it slightly disproportionate to include people who are considered to be inefficient or ineffective on the barred list and thereby affect their employment prospects so fundamentally?
Amendment 150A has a similar effect on the requirement to report resignations and retirements in the face of an allegation of inefficiency or ineffectiveness. Amendment 151A allows someone reported as having resigned or retired in the face of an allegation to be able to appeal against the decision to report his resignation or retirement. I beg to move.
Baroness Chisholm of Owlpen
My Lords, I have listened carefully to the case put forward by the noble Lord, Lord Paddick, for these amendments. The Government are clear that the provisions on the police barred and advisory lists should apply to police officers and civilian staff equally where individuals have been dismissed or face allegations that could lead to their dismissal for reasons of serious misconduct, incompetence or unsatisfactory performance.
The provisions for civilian staff use the language of “conduct, efficiency or effectiveness” to mirror the language in Sections 50 and 51 of the Police Act 1996, under which regulations concerning discipline for police officers are made. This is a catch-all term to encompass all circumstances that could lead to a dismissal, through the processes related to performance and conduct. The barred list provisions are designed to protect against those who have been dismissed from policing being recruited to another force or policing body having been found to have fallen so far below the standards expected of those working in policing that they have been dismissed.
Amendments 147A and 150A would remove grounds of effectiveness from the relevant categories of dismissal that could lead to a civilian member of staff being added to the barred list. It is my view that “efficiency and effectiveness” are inextricably linked; therefore, to remove one of these factors would seriously undermine the ability of these mechanisms to capture individuals who have been dismissed or who are under ongoing investigation for matters of competence or performance.
Dismissal in these cases would arise only following a prescribed and lengthy process to establish that the individual’s performance or competency has fallen well below the standards expected on a consistent basis or relate to a matter so severe that dismissal is justified. For example, the Police (Performance) Regulations 2012 define gross incompetence for officers as,
“a serious inability or serious failure”,
to perform the duties to a satisfactory standard or level.
As drafted, these amendments would create a disparity in the way that civilian staff are treated compared to their counterparts holding the office of constable with regard to what would be captured by, and the effect of, these provisions. In the Government’s view it would not be desirable to make such a distinction and create such a different approach to the information and individuals that would be captured by the barred and advisory lists for civilian staff versus police officers.
Amendments 147B and 151A seek to create a new right of appeal, specifically with regard to inclusion on either the police advisory or barred list. This is neither necessary nor desirable. Our approach is clear: if an individual has been dismissed from policing, they should be added to the barred list to prevent them rejoining another force or policing body at a later stage. It is important to note that new Sections 88F and 88L of the Police Act 1996, as inserted by Schedule 8, already provide for removal from the barred list and the advisory list. There is an existing route for appeal against dismissal via the Police Appeal Tribunal or employment tribunal. As a result, in the circumstances that a decision to dismiss an individual is overturned, this will result in the individual being removed from the barred list. This is explicitly provided for by Schedule 8.
As we see greater flexibility in roles, functions and powers exercised by civilian staff, as designated under the powers set out in Clause 37, it is important that the police barred list provisions adequately capture individuals who have been dismissed from the police service. This flexibility and application of policing powers must, in the view of the Government, be accompanied by appropriate safeguards, protections and accountability.
The police advisory list provisions are in place to ensure that adequate information is captured where an individual leaves a force while investigatory or disciplinary proceedings are ongoing. This list does not represent a statutory bar but creates a framework for capturing this information for future policing employers to take into account as part of the vetting process. To add an appeal route to this process would therefore undermine the ability of police forces and policing organisations to adequately subject incoming candidates to vetting procedures and take account of the fact that a candidate may be subject to an ongoing investigation or disciplinary process.
As with the barred list, the advisory list provisions contain safeguards so that an individual will remain on this list only while proceedings are ongoing. Where it is determined that no disciplinary proceedings will be brought or are withdrawn, or where disciplinary proceedings conclude without there being a finding that the individual would have been dismissed, the individual’s name and details must be removed from the advisory list.
Ultimately, the right of appeal against inclusion on the advisory list exists within a misconduct hearing, where it will be determined whether the individual should be dismissed and so be added to the barred list. Where dismissal is not the outcome, they will be removed when the process concludes.
Given that explanation, I ask the noble Lord to withdraw his amendment.
Lord Paddick
I am grateful to the noble Baroness for her lengthy explanation of what the barred list and the advisory list are about. However, that is not what the amendments seek; the intention behind them is to suggest that it is disproportionate to include on the lists those who are accused of being inefficient or ineffective.
Although I accept some of the points that the noble Baroness has made, it just spurs us on to look at whether the amendments we have tabled for Committee need to be refined. As I mentioned in my opening remarks, bearing in mind what the Minister said about the impact that this provision might have on employment prospects—presumably generally and not re-employment in a police service—we question whether the inclusion of “efficiency or effectiveness” is over the top.
I understand the parallel with gross incompetency for police officers. I would be interested to hear whether, since its introduction, that provision has yet broken its duck in terms of a person having been dismissed for gross incompetency. More research is to be done and no doubt we will return to this issue at later stages of the Bill. However, at this stage, I beg leave to withdraw Amendment 147A.
“(1A) But the duty in subsection (1)(a) does not apply if, before the person resigns or retires, it is determined that no disciplinary proceedings will be brought against the person in respect of the allegation.”
“Appeals to Police Appeals Tribunals
(1) Schedule 6 to the Police Act 1996 (appeals to Police Appeals Tribunals) is amended as follows.(2) In paragraph 1 (appeal by a senior officer), in sub-paragraph (1), in the words before paragraph (a), for “Secretary of State” substitute “relevant person”.(3) In paragraph 2 (appeal by a member of a police force other than a senior officer or by a special constable), in sub-paragraph (1)—(a) in the words before paragraph (a), for “relevant local policing body” substitute “relevant person”;(b) omit paragraph (d);(c) at the end insert—“(e) one shall be a lay person.”(4) After paragraph 2 insert—“2A(1) For the purposes of paragraphs 1 and 2, “the relevant person” means the person determined in accordance with rules made by the Secretary of State._(2) Rules under sub-paragraph (1) may make—(a) different provision for different cases and circumstances;(b) provision for the relevant person to be able to delegate the power to appoint the members of a tribunal._(3) A statutory instrument containing rules under sub-paragraph (1) is subject to annulment in pursuance of a resolution of either House of Parliament.”(5) In paragraph 10 (interpretation)—(a) after paragraph (a) insert—“(aa) “lay person” means a person who is not, and has never been—(i) a member of a police force or a special constable,(ii) a member of the civilian staff of a police force, including the metropolitan police force, within the meaning of Part 1 of the Police Reform and Social Responsibility Act 2011 (see section 102(4) and (6) of that Act),(iii) a person employed by the Common Council of the City of London in its capacity as police authority who is under the direction and control of the Commissioner of Police for the City of London,(iv) a police and crime commissioner,(v) a member of staff of a police and crime commissioner, or of the Mayor’s Office for Policing and Crime, within the meaning of Part 1 of the Police Reform and Social Responsibility Act 2011 (see section 102(3) and (5) of that Act),(vi) a constable within the meaning of Part 1 of the Police and Fire Reform (Scotland) Act 2012 (2012 asp 8) (see section 99 of that Act),(vii) a member of the Police Service of Northern Ireland or the Police Service of Northern Ireland Reserve,(viii) a member of the British Transport Police Force or a special constable appointed under section 25 of the Railways and Transport Safety Act 2003,(ix) an employee of the British Transport Police Authority appointed under section 27 of the Railways and Transport Safety Act 2003,(x) a member of the Ministry of Defence Police,(xi) a person (other than a member of the Ministry of Defence Police) who is under the direction and control of the chief constable for the Ministry of Defence Police,(xii) a member of the Civil Nuclear Constabulary, or (xiii) an employee of the Civil Nuclear Police Authority appointed under paragraph 6 of Schedule 10 to the Energy Act 2004,”;(b) omit sub-paragraph (c).(6) In consequence of the other provision made by this section—(a) in the Criminal Justice and Immigration Act 2008, in Part 1 of Schedule 22, omit paragraph 11(6)(b);(b) in the Police Reform and Social Responsibility Act 2011, in Part 1 of Schedule 16, omit paragraph 47(2)(b).”
Baroness Chisholm of Owlpen
My Lords, Clause 30 is designed to implement two of the recommendations made by Major-General Chip Chapman in his review of the police disciplinary system. Major-General Chapman recommended that the system of police appeals tribunals should be made more transparent and independent by introducing a lay member to the panel. He also identified that enabling greater collaboration between forces would improve consistency of outcomes.
Clause 30, as currently drafted, provides flexibility for the Secretary of State to establish who can be selected to serve on police appeals tribunals and for setting out the administrative arrangements for these tribunals in rules. In its report on the Bill, the Delegated Powers and Regulatory Reform Committee argued that it was inappropriate to leave to secondary legislation the details of who would be eligible to serve on the tribunals.
The Government have accepted the Delegated Powers Committee’s recommendation on this point, and the government amendments in this group ensure that the individuals who may serve as panel members of a police appeals tribunal will, as now, be set out in primary legislation. However, it remains our intention to further strengthen the independence of police appeals tribunals by replacing the current retired police officer panel member—for panels hearing appeals by non-senior officers—with a lay person member, and the replacement Clause 30 amends Schedule 6 to the Police Act 1996 to this end.
The replacement clause, together with Amendment 172, defines a lay person for these purposes. In broad terms, it means any person who has not previously worked in policing, including as a police officer, as a member of the civilian staff of a police force or as a police volunteer. Amendment 232 makes a consequential change to the extent clause. Importantly, the introduction of lay members will bring a greater degree of independence to police appeal proceedings.
Lord Rosser
Lord Rosser
Clause 32 provides for the current Independent Police Complaints Commission to continue in existence but to be renamed the Office for Police Conduct. The effect of this group of amendments would be to retain the word “Independent” in the title of the renamed organisation. On the face of it, this may seem a somewhat minor point. However, it is not, as the name that is chosen for an organisation can significantly determine how it is perceived by those who come into contact with it and by the wider public.
The Independent Police Complaints Commission has had the word “Independent” in its title for, I believe, some 14 years, and it sends an important message: it is meant to be independent. Removing it from the new name of the organisation will also be regarded, by the public generally but particularly by those with whom it has specific dealings, as sending a message about its status, and it is a message that is unlikely to be helpful—namely, that it is no longer meant to be independent, including in its relationship with the police.
Currently, the word “Police” is in the title, but so too is “Independent”. In future, under the provisions of the Bill only the word “Police” will be seen in the title by those who need to deal with the renamed organisation. As it is, at times there is already an issue of some public mistrust over the perception of the police investigating the police, and the proposed name change will certainly not help in that regard.
What are we to make of the title, Office for Police Conduct? Would not the natural assumption be that this was some police body, part of the organisation, accountable to the organisation and certainly not separate and independent from the police service? How will that assist in establishing the trust or securing the confidence of those with whom the organisation comes into contact? Not all of them will necessarily at the time of that contact have the highest regard for the police—the obvious example being a bereaved family in the early days of an investigation by the current IPCC.
I hope that the Government will reflect seriously on this point and on the significance of the removal of the word “Independent” from the title of the renamed organisation, and will accept the amendment. I beg to move.
Lord Condon
My Lords, I support this amendment. For those who have monitored the police complaints process and helped advise complainants, the word “independent” has always had enormous significance. It is not a word of little value—it has huge significance for conveying the nature of the organisation that is carrying out complaints and overseeing complaints. I make no apology for reminding the House that I went on the record as commissioner to argue for a totally independent police complaints system. I put enormous value on the word “independent”, then and now, and I encourage the Government to think again on this issue.
Earl Attlee (Con)
My Lords, I have some sympathy with the amendment moved by the noble Lord, Lord Rosser, for precisely the reasons that he and the noble Lord, Lord Condon, outlined. On the other hand, we also have very important organisations that do not have the word “independent” in their title; for instance, Ofcom and Ofgem. So it is not unusual for organisations not to have the word “independent” in their title—but I hope that the Minister will consider the matter carefully.
Lord Condon
Would the noble Earl accept that, in the history of police complaints, more so than for “Of-anything”, the word “independent” has always had huge significance, and that there are many organisations, campaigners and individual long-time complainants for whom, in this context, “independent” is worth far more than in the context of a complaint against a gas company?
Earl Attlee
The noble Lord makes a very good point. I hope that the Minister will also remind us why we are changing the name at all. Legislation could be used to change the function, composition or governance of the body, but I would like to be reminded why we are changing the name at all. The general public are used to the term “IPCC” and they know what it does —and now we are changing it.
Lord Paddick
My Lords, I added my name to the three amendments in the name of the noble Lord, Lord Rosser. I entirely agree with the noble Lord, Lord Condon, and say to the noble Earl, Lord Attlee, that the IPCC has an uphill task because, necessarily, it has to rely to a large extent on former police officers as investigators. It does not do itself any favours by appointing, as it has done at least at some point in its history, a former staff officer to a Commissioner of the Met as its head of investigations—that hardly inspires confidence in those looking at it subjectively from the outside or conveys the message that it is completely independent.
Cynics might say that removing “Independent” from the title of the organisation is an outbreak of honesty in the Government. But that is not the direction that we should be moving in. This should not be seen simply as a cosmetic change; it needs to have some substance behind it. To call it the Office for Police Conduct, without “Independent” in there, is manna from heaven to those who want to criticise the new body as not being independent at all. For those reasons, I strongly support these amendments.
Lord Bach
My Lords, surely this is just a matter of common sense. Can we not cut through everything that has been said? I absolutely support what my noble friend Lord Rosser, and the noble Lords, Lord Condon, and Lord Paddick, have said—it is just a matter of common sense. Anyone who has been in government knows that sometimes Governments hold up the most obvious and common-sense approach for no apparent reason at all—we did it, and I fear this may be an example of the Minister’s Government doing it. It is quite clear that the word “independent” should be included. It would make it much clearer to the general public. Surely this is something that the noble Baroness can take away and consider, and perhaps come back and agree that it is just pure common sense.
Baroness Williams of Trafford
I thank the noble Lords who have spoken so clearly on this amendment, particularly the noble Lord, Lord Bach. I will outline why the Government want to change the name. The aim is to ensure that the organisation has a corporate structure and governance arrangements that enable it to carry out efficiently and effectively its expanded role in the police complaints and discipline systems.
My noble friend Lord Attlee pointed out that not every independent body has the word “independent” in its title—he mentioned Ofgem and Ofcom, and Ofsted is another example.
I understand that the body’s constitution alone does not guarantee public trust in its independence, but neither necessarily does incorporating the word “independent” in its title. That said, I understand the contrary argument, put forward by the noble Lords, Lord Rosser and Lord Condon, that adding the word “independent” to the name might change some people’s perceptions and encourage them to come forward if they have concerns about police conduct. Therefore, although I remain to be persuaded of the case for the amendments, I will reflect between now and Report on the points that noble Lords made so well in this short debate. On that basis, I invite the noble Lord to withdraw his amendment.
Lord Rosser
I thank the Minister for her response and thank all noble Lords who participated in this short debate. I note that the Minister, on behalf of the Government, is not committing herself to agree to the change, but she agreed to reflect on the matter and on what has been said this afternoon and perhaps come back to it on Report. I thank her for that and beg leave to withdraw the amendment.
Lord Rosser
Lord Rosser
The effect of these amendments is to give the director-general of the Office for Police Conduct a power to create regional directors, including a national director for Wales, and that as a minimum four of the regional director positions should be excluded from having a former police background, with a similar bar on the national director for Wales.
The Bill provides a specific bar on the director-general having previously worked for the police and creates a power for him or her to apply that bar to certain specified roles. Currently, all the IPCC’s commissioners—who are both its governing board and its senior public-facing decision-makers—can never have worked for the police. That has delivered a diverse group of people with senior experience in other fields in those roles to complement the policing experience of other staff and senior managers. As I understand it, the IPCC’s clear view is that this should continue to be the case for those who, like commissioners, are the public face of the organisation in the regions and its senior decision-makers. Obviously, the point of tabling the amendment is to seek the reasons for the decisions the Government appear to have made on this point and which are enshrined in the Bill.
Baroness Hamwee (LD)
My Lords, the underlying thinking here ties in quite closely with the debate on the previous group, and I am not sure that anyone said then that losing the word “Independent” from the title was particularly significant because of the very fact that it will be a change—more significant than if one was creating a new organisation and not having the word in its title from the start. That thought is part of the reason for our Amendment 158A in this group, which in fact the noble Lord, Lord Rosser, has explained to the Committee. It would also mark a change so that all the members of the body, if I can use a neutral term, could not be appointed from those who are—summarising around a third of a page—cops or ex-cops. That change would be a significant one, and again it is about the perception of independence as well as actual independence. We may hear that there are some practical reasons, or reasons of experience, that has caused the Government to move in this direction in their decisions on the structure and this part of the body’s governance, but I do not think that it is a good direction to go in.
As regards Amendments 157 and 158, in our view it would be wise to have a geographic spread, but if there is going to be a truly independent “Office”, it should be allowed to sort out its own arrangements, although anyone with any sense in the organisation would want to be sure that the regions of England, as well as the nation of Wales, are heard loudly and clearly.
Baroness Williams of Trafford
My Lords, the Bill provides for the existing commission to be replaced by a single executive head, the director-general, and for corporate governance to be provided by a unitary board with a majority of non-executives. These reforms address the recognised weaknesses of the existing commission model, under which most of the commissioners are engaged in operational activity and in the governance of the organisation. This has resulted in blurred lines of accountability. The commission itself recognises the need for change and there was clear support for the new director-general model in the response to the public consultation on the proposed reforms.
As the single executive head, the director-general will be accountable for the efficiency and effectiveness of the reformed organisation. That is why the legislation provides the director-general with the flexibility to determine the executive structure of the organisation, including the composition of his or her senior team. The director-general needs the freedom to shape the organisation in the way they see best to deliver high-quality, timely and independent investigations into police conduct, a point made by the noble Baroness, Lady Hamwee. Amendment 157 would tie the hands of the director-general as it would require the corporate structure of the Office for Police Conduct to include a minimum of four regional directors plus a national director for Wales.
The Government expect the Office for Police Conduct to have a regional presence, as the IPCC does, but as with the IPCC now and since its creation more than a decade ago, the Government do not see the need to legislate for a regional structure. A requirement for a specified minimum number of regional and national director posts would limit the director-general’s future flexibility to respond to the changing needs and circumstances of the organisation. In addition, this particular amendment would put regional directors on the board. That would undermine the core strengths of the new governance model and risk replicating the blurred lines of accountability within the existing commission structure.
I turn now to Amendments 158 and 158A, which relate to positions in the Office for Police Conduct that should not be open to those who have worked for the police. The Government recognise that public confidence in the independence of the organisation relies on certain key decision-making roles not being open to those with a police background. That is why there will be an absolute bar on the director-general from ever having worked for the police. We do not think that there should be statutory restrictions on those who are members of the office—in effect, the board of the reformed organisation. The core functions of the office are set out clearly in the Bill and include ensuring the good governance and financial management of the organisation. These functions are quite distinct from the functions of the director-general. The director-general, as the single executive head, will be solely accountable for all casework and investigation decisions, not the board. It is not right that a suitably qualified individual could not be appointed to a corporate governance role as a member of the board simply because he or she once worked as a police civilian, perhaps for just a short period many years previously.
With regard to employee roles, the Bill provides the director-general with an express power to designate functions and roles that are restricted, including senior operational and public-facing positions. The power means that the director-general will be able to ensure that the OPC has the right mix of staff, including those with valuable policing experience, while also having the power to place restrictions to help bolster public confidence in the OPC’s impartiality and independence. However, as I said, it is important that the director-general can secure public confidence in the work of the Office for Police Conduct. The Bill recognises the need for transparency in the director-general’s decision-making and places a requirement on the director-general to publish a statement of policy on the exercise of these particular powers of recruitment.
To conclude, we believe the provisions in the Bill strike the right balance by placing core aspects of the OPC’s governance in the legislation while ensuring that there is flexibility and transparency in appointments. On that note, I hope the noble Lords, Lord Rosser and Lord Paddick, and the noble Baroness, Lady Hamwee, are reassured of the Government’s intentions and that they will be content not to press their amendments.
Lord Rosser
Can I ask the Minister whether the Government accept that, under the Bill’s terms, as far as the public face of the organisation and its very senior decision-makers are concerned, we could end up with a situation where only one, namely the director-general, has not previously worked for the police?
Baroness Williams of Trafford
My Lords, I think what I outlined in my speech to noble Lords was that the director-general would need to outline how he proposes the board will work and his position in it. The Bill recognises the need for transparency, as the noble Lord pointed out. It places a requirement on the director-general to publish a statement of policy on the exercise of these particular powers of recruitment. I imagine that if he decided to have a board full of former police officers he would want to explain why, in his particular case, this was necessary.
Baroness Hamwee
Would the Minister accept that the bit the public will be aware of—like the change from an organisation with the term “independent” in its title—is the change from a board structure where there is a bar on all members of the board having been police officers or involved with the police service to a situation where there need not be, not the detail of the report of the director-general explaining the fine detail of their thinking? It is a much broader issue than the Government are acknowledging.
Lord Rosser
I thank noble Lords who have participated in the debate, and the Minister for her response setting out what the Government’s position is and the thinking behind the Government’s wording in the Bill. Issues have been highlighted in the debate about the potential implications and the extent to which one could end up in a situation where very few people indeed in the public face of the organisation and its senior decision-makers had not worked for the police, since the terms of the Bill do not preclude that happening. It precludes it only as far as the director-general is concerned.
Baroness Williams of Trafford
I profusely apologise for intervening, but I thought I would give the noble Lord the full information I have before me. There is a backstop power for the Secretary of State to set out in regulations restrictions on which posts can be held by former police. Perhaps that is a conversation to be had. It would be very unusual for the director-general to pack his or her board full of ex-police officers, but there is this backstop power for the Secretary of State. I apologise for intervening on the noble Lord.
Lord Rosser
Not at all. I am very grateful to the noble Baroness for that intervention, further clarifying the position as far as the Government are concerned. One might say that it is not entirely satisfactory that one would have to have a backstop power to prevent a situation arising where very few, if any, of those who are the public face of the organisation or its senior decision-makers are not people who have previously worked for the police. Some might feel that that should be better enshrined in the Bill itself.
Nevertheless, this short debate has highlighted quite an important issue. I hope the Government might be prepared to reflect on what has been said, and on the significance of the issue raised, in the context of the future role and perception of the Office for Police Conduct. In the meantime, I beg leave to withdraw the amendment.
Baroness Chisholm of Owlpen
My Lords, Amendments 159, 163 and 233 in this group are technical and consequential amendments arising from the changes to the IPCC’s governance arrangements that we have already debated. I can provide noble Lords with further details if required, but for now I beg to move.
“Investigatory Powers Act 2016
72A(1) The Investigatory Powers Act 2016 is amended as follows._(2) In section 59 (section 58: meaning of “excepted disclosure”), in subsection (4)(c)—(a) for “the Independent Police Complaints Commission” substitute “the Director General of the Office for Police Conduct”;(b) for “its functions” substitute “the Director General’s functions”._(3) In section 107 (power to issue warrants to law enforcement officers), in subsection (11)—(a) for “the chairman, or a deputy chairman, of the Independent Police Complaints Commission” substitute “the Director General of the Office for Police Conduct”;(b) omit “by the Commission”._(4) In section 108 (restriction on issue of warrants to certain law enforcement officers), in subsection (2), for paragraph (h) substitute— “(h) the Director General of the Office for Police Conduct;”._(5) In section 134 (section 133: meaning of “excepted disclosure”), in subsection (3)(b)—(a) for “the Independent Police Complaints Commission” substitute “the Director General of the Office for Police Conduct”;(b) for “its functions” substitute “the Director General’s functions”._(6) In Schedule 4 (relevant public authorities and designated senior officers), in Part 1—(a) omit the entry relating to the Independent Police Complaints Commission, and(b) after the entry relating to the Office of Communications insert—
“Office for Police Conduct | Director or an equivalent grade | All | (b) and (i)” |
“The Director General of the Office for Police Conduct. | A person falling within paragraph 6A(2) of Schedule 2 to the Police Reform Act 2002 who is designated by the Director General for the purpose.” |
Baroness Jolly
“Forces maintained otherwise than by local policing bodies
After section 26(3)(b) of the Police Reform Act 2002 (forces maintained otherwise than by local policing bodies) insert—“(c) the Royal Military Police;(d) the Royal Air Force Police; and(e) the Royal Navy Police.””
Baroness Jolly (LD)
My Lords, I will not detain the House long on this small but very important amendment. This is the first time I have spoken on the Bill. The interest is relatively niche and relates to the three service police forces and the 160,000 men and women who serve in our Armed Forces.
The aim of the amendment is to insert a clause that extends the remit of the IPCC to the service police forces. I am not alone in this desire. Her Majesty’s Inspectorate of Constabulary recommended that oversight of service police should be brought within the competence of the IPCC. In a report last year on the Royal Military Police, the Army’s investigative and policing branch, stated:
“There was insufficient public scrutiny of RMP investigations. The RMP does not report to the public, and investigations into RMP wrongdoing are carried out by an internal Professional Standards Department or the Provost Marshal of another service police force”
It added:
“The Provost Marshal acknowledged to HMIC that a strategic risk to the RMP is inadequate independent oversight of its own independence.”
Only last week, the RMP finally admitted to failings in a rape case in 2009, that of Anne-Marie Ellement, a member of the Royal Military Police, who claimed that two of her colleagues raped her. She took her own life in 2011. The MoD said, seven years after the rape case, that it was clear that mistakes were made and apologised to the family.
Had the IPPC’s remit covered service police forces there would have been another avenue to take the concern. This is a terrible case and I am sure the service police forces have taken a long hard look at themselves, but it is not the only case where they have been found wanting. Had there been the opportunity, an independent complaints commissioner could have intervened.
I feel sure that the Minister will refer to the chain of command—this is important to military discipline—and the fact that there is a Service Complaints Commissioner. There is, but the system was ineffective in this case. Our servicemen and women have rights and those rights are best upheld if this amendment is accepted.
I remind the Minister that in 2014, the Defence Select Committee called for a timescale to be set out to bring the service police under the auspices of the IPCC. Has such a timetable been agreed? If the answer is no, in the light of this week’s announcements, how much more likely it is that the MoD would review the situation?
Lack of accountability of the service police undermines the rule of law and makes it harder for them to undertake their function of policing by consent. This amendment gives the opportunity to bring the three police services into the same independent system of oversight as applies to the rest of us. If the Minister is not able to help this afternoon, will she agree to meet me to look at it further? I beg to move.
Lord Paddick
My Lords, I support the amendment in the name of my noble friend Lady Jolly and myself. My noble friend has made a very strong case, not just because it was Her Majesty’s Inspectorate of Constabulary’s recommendation that the three service police forces should come under the remit of the IPCC. Those responsible for the Royal Military Police have accepted that the organisation is at a strategic risk because it does not come under the remit of the IPCC. If the Government are not prepared to accept the amendment, it would be very interesting to hear from the Minister why not.
Lord Rosser
I will just add briefly to the comment made by the noble Lord, Lord Paddick, at the end of his speech. If the Government do not feel inclined to accept the amendment, there is a need—I am sure it will happen when the Government respond—to hear precisely what their reasons are for not going down that road. It has been said that no comparable body to the IPCC exists to deal with complaints about service police forces. A significant number of forces and agencies do fall within the jurisdiction of the IPCC, including, I understand, the Ministry of Defence Police. If the Government do not accept the amendment, like the noble Lord, Lord Paddick, I wait to listen with interest to their reasons why not.
Baroness Chisholm of Owlpen
As the noble Baroness, Lady Jolly, has explained, this amendment seeks to put the service police within the remit and jurisdiction of the Independent Police Complaints Commission.
We do, of course, support the need for independent oversight and scrutiny of the Royal Navy Police, the Royal Military Police, and the Royal Air Force Police, including the key objective of having an independent mechanism to investigate complaints against them. I am also aware that Her Majesty’s Inspectorate of Constabulary has recommended that the Government should consider further whether the IPCC could be the appropriate mechanism.
The Government have given early consideration to this, including discussions with the IPCC. To bring the service police under the remit of the IPCC is potentially a major change. Although only a small number of cases may be involved, it could mark a significant shift for the IPCC far beyond its current operations in England and Wales. As the chair of the IPCC has said,
“There are inherent and significant differences between the remit and jurisdiction of the service police and those of the Home Office Police forces”.
In addition, the IPCC is currently part way through a major programme of expansion to build its capacity and capability to investigate all serious and sensitive allegations against civilian police forces. This Bill will further strengthen the IPCC’s remit and powers and, in light of its expanded role, the Bill also provides for the reform of the organisation’s corporate structure and governance to deliver a more capable and resilient organisation.
At this stage, the IPCC’s capacity for further change to its role is constrained. That is why the Government, led by the Ministry of Defence, are seeking alternative options. Recent work with the Ministry of Defence has been focused on the development of a common complaints procedure across the three service police forces. This procedure covers complaints made by serving and non-serving military personnel against a member of the service police carrying out a policing function, irrespective of location. There is now also a protocol between the service police forces to ensure that, where there may be a conflict of interest around the investigation of a complaint, one service police force may investigate another. The next phase of the Ministry of Defence’s work is to consider how best to introduce a mechanism that will provide for the independent oversight of these complaints, wherever in the world they are made.
I hope that the noble Baroness will understand that, in the light of the work being taken forward by the Ministry of Defence, and the risks that could arise if we sought to impose new responsibilities on the IPCC at a time when it is already going through a substantial reform programme, I cannot commend this amendment to the Committee. I accept, however, that the noble Baroness wants to see more progress towards finding a long-term solution to this issue. I can certainly undertake to write to the Armed Forces Minister to draw his attention to this debate, but for now I ask the noble Baroness to withdraw her amendment. Of course, I am more than happy to meet the noble Baroness.
Baroness Jolly
I thank the Minister for her comments and my noble friend Lord Paddick, and the noble Lord, Lord Rosser, for their support. I understand that it would be a large change for the IPCC to undertake this extra work. I imagine that a certain amount of the capacity would go from one organisation to the other. One of the things I would like to understand is the timescale of all this, so perhaps when the Minister and I meet, this is the sort of area we could discuss.
Earl Attlee
My Lords, I am quite neutral, but obviously interested in this debate. The noble Baroness talked about a large increase in work for the IPCC or the successor organisation. In support of the noble Baroness, there are not that many service policemen and policewomen. It is not clear to me why it should generate a huge amount of extra work.
I have to say to the Minister, that she has not absolutely convinced me that there is the capacity in the service system to investigate really effectively a service police force when something goes wrong. However, I have to say I am still neutral.
Baroness Jolly
I have no comment on that one. I thank the noble Earl for his remarks and in the meantime beg leave to withdraw my amendment.
Lord Paddick
Lord Paddick
My Lords, Amendment 164A is in my name and that of my noble friend Lady Hamwee. I will also speak to the other amendment in the group, Amendment 164B. Clause 35 addresses the powers of inspectors—that is, Her Majesty’s Inspectorate of Constabulary—to obtain information, to secure access to police premises, and other matters by substituting paragraphs 6A and 6B in Schedule 4A to the Police Act 1996. New paragraph 6B talks about the powers of inspectors to obtain access to police premises and paragraph 6B(1)(a)(iii) talks about who can be served with a notice requiring them to allow access to premises, including,
“a person providing services, in pursuance of contractual arrangements (but without being employed by a chief officer of police of the police force or its local policing body)”.
The amendment deletes “but” and replaces it with “with or”, so it would cover a person who is employed by the police, as well as someone who is not. Amendment 164B makes a similar change to who can appeal against such a notice. I beg to move.
Baroness Williams of Trafford
My Lords, the amendment presumably aims to ensure that inspectors have comprehensive access to premises used for policing purposes, and that Her Majesty’s Inspectorate of Constabulary is able to inspect the totality of policing in a landscape where functions are increasingly delivered by multiple agencies. The noble Lord nods; I thought that was probably the aim. The Government wholeheartedly agree with that aim, which is the purpose of this Bill’s inspection provisions.
The amendment does not actually further that aim. The current wording already ensures that inspectors have access to any premises used in the delivery of policing functions, whether they are occupied by the force itself, the local policing body, another emergency service acting in collaboration with the force or a private company carrying out the activities of a force under a contract. I put it to the noble Lord that these amendments would not, in practice, extend the categories of premises to which an inspector had access. Any premises occupied for the purposes of a police force by persons employed under contract by the chief officer are already captured in these provisions. That being the case, I think the noble Lord would agree that the amendments were unnecessary. I invite him to withdraw the amendment.
Lord Paddick
I am grateful to the Minister for that explanation. Clearly the amendment is not designed to extend the category of premises that HMIC would be able to access. It is about extending the category of person upon which a notice could be served. It appears to us that the wording in the Bill is restrictive and needs to be broadened. We are trying to broaden the category of person on which the notice can be served.
Baroness Williams of Trafford
It might be helpful to the noble Lord to hear that this is covered by government Amendment 166, which ensures that any other person who is,
“by virtue of any enactment … carrying out the activities of”,
a police force is subject to inspection.
Lord Paddick
I am grateful for that second explanation and will consider it carefully. In the interim, I beg leave to withdraw the amendment.
“(g) any other person who is, by virtue of any enactment, carrying out any of the activities of a police force.”
“(d) any other persons if, or to the extent that, they are engaged by virtue of any enactment in carrying out the activities of the police force.”
Lord Kennedy of Southwark
Lord Kennedy of Southwark
My Lords, I will not detain the House very long with this amendment. Amendment 167A, in the name of my noble friend Lord Rosser, is a probing amendment. We tabled it to get on the record the thinking of the Government in this respect, and to raise our concerns. From these Benches, we are more content with the idea of employed staff being designated to use the weapons as outlined in new subsection (9B), but we have some reservations about the authorisation of volunteers to use them. I think the public would have some concerns about arming volunteers with CS and PAVA sprays. It may be seen as a step too far.
It would be useful if, when the noble Baroness responds to the debate, she could tell the House how many PCSO posts have been lost in the last six years. It appears on looking at this that it could be regarded as policing on the cheap: reduce the number of PCSOs in full-time employment and then get these volunteers and arm them with these weapons. Those are our concerns.
There is also a Clause 38 stand part debate in this group. We tabled that for the same reason: to get on record the Government’s thinking here and to outline our concerns at this stage. I beg to move.
Lord Paddick
I support the amendment tabled in the name of the noble Lord, Lord Rosser, and again express my concerns about this move to give police volunteers considerable powers, including authorising them to use incapacitant sprays. I share the concerns that the noble Lord, Lord Kennedy of Southwark, expressed in terms of public confidence in volunteers being given these weapons.
If somebody wants to volunteer to get involved in the use of force in the exercise of police powers, as would be the case in using incapacitant sprays, there is an avenue open to them: volunteer to become a special constable. They then have all the powers of a regular police officer, undergo extensive training and wear uniform almost indistinguishable from a regular police officer. As a consequence, there is no need for this Bill to give other volunteers the powers in this clause. If they want to help the police service by volunteering for other activities that do not involve the use of force, then of course it is open to them to do so, but in that case they would not need the powers that this clause would give volunteers.
Again, this adds complexity to what is already a complex policing family. There is already confusion among some members of the public about the different powers available to police community support officers compared with police constables; for example, at the scenes of road traffic accidents, where police community support officers have to stand at the side of the road and wait for a police officer to turn up to take control of any resulting traffic congestion because they do not have the power to direct traffic. Having volunteer community support officers would add a further level of complexity and confusion in the eyes of the public. Not only do we consider this clause unnecessary, but we feel that it could add to confusion and further undermine what the police service is trying to achieve in very difficult circumstances in the face of significant cuts to its budget.
Baroness Redfern (Con)
My Lords, I support the powers of police civilian staff and police volunteers, who deliver extra support and complement our police officers. In Lincolnshire two years ago the first VPCSOs were recruited as an extra uniformed visible presence in local communities, supporting the work of regular PCSOs in providing reassurance and support to local people. The word “extra” is important as these officers were designed not to replace existing provision but to supplement it.
The VPCSO role is varied but includes: giving advice and reassurance to victims and witnesses of crime; supporting policing operations by providing reassurance to members of the community; working with police officers, PCSOs and other police staff on policing priorities; and working within the local policing team on minor incidents, crime inquiries and anti-social behaviour, with a commitment to at least four hours a week on patrol in their local area.
The force has developed a role profile for VPCSOs with eligibility requirements that are the same as for PCSOs, such as minimum age, residency, skills and qualities, health, and vetting. Applicants undertake a selection process that includes an interview to test that their personal qualities meet those required in the role profile. Induction and initial training is undertaken over five weekends, followed by a further two weekends’ consolidation a few weeks later once they have gained some experience.
From a pilot stage to a valued part of visible policing in Lincolnshire, this has been pioneered and funded entirely by the PCC and chief constable and has offered an innovative way to supplement local policing while enhancing the range of opportunities available to local residents who wish to volunteer and contribute to their community. It is also a possible route to becoming a regular officer. The important changes in the Policing and Crime Bill to allow VPSCOs to have powers will improve the flexibility and efficacy of the role. Most importantly, these officers offer an extra uniformed, visible presence, thus addressing many, many residents’ requests and supporting our valued police officers.
Lord Harris of Haringey
My Lords, the contribution of the noble Baroness, Lady Redfern, emphasises the potential value of police volunteers and the role that she described. The difficulty is that we are debating several issues almost simultaneously—and she may almost have been anticipating the next group. The specific point that the amendment moved by my noble friend Lord Rosser relates to is the provision to enable those volunteers to use CS spray, PAVA spray and other specified weapons.
The concern that a number of us have, which is why it is important that we debate this and understand exactly what the implications are, is that this is a significant extra step. Having police volunteers who advise the public or patrol with a uniform in various areas to help create a visible presence, we can all understand and would value and welcome. The point at which you give them the power to use force against fellow citizens is actually an extremely significant change, and it raises all the issues about the level of training that they will receive.
The noble Baroness, Lady Redfern, talked about the training that is provided. Obviously, that is valuable, although I suspect that five weekends of training are probably what you need to learn all the other functions before you get on to what is essentially the power to use violence against other members of the public. There are issues around accountability and how all these things are managed. Before we take the step of saying that people who have volunteered and have had some training, albeit a comparatively small amount, can be allowed to use CS spray or other weapons against other citizens, we have to think about it extremely carefully.
Lord Condon
My Lords, I support the comments of the noble Lord, Lord Harris. I do not turn my mind totally against this provision but, from my experience, the way you equip people heavily influences how they think about what they are doing: their role and how they react. Like other noble Lords, my inclination at this stage, subject to reassurance from the Government, is that the cut-off point for incapacitant sprays should probably stay at special constable, where there is a level of training, supervision, scrutiny and public acceptance of their role that there is not for volunteers. Incapacitant sprays can and have killed. To equip a volunteer who may have good but relatively basic training with a spray that can kill a fellow member of the public is an enormous step and we need reassurance from the Government that it is absolutely necessary.
Lord Deben (Con)
My Lords, this has been a very useful discussion. I find myself slightly closer to the Government’s position than that of the noble Lord who spoke from the other side, but I have considerable sympathy with his argument.
There is a terribly difficult problem, which I hope my noble friend will address, of confusion about who these people are, who is in which category, and the like. I happen to have a close relative who sought to be a special constable and discovered that the difficulties of becoming a special constable are really quite considerable. I hope that my noble friend can help me by explaining that this is not a way of getting out of the difficulties of the one by producing something different, which would mean that we are not facing up to some really fundamental issues about how people become special constables and whether we are making it easy for people who would like to make this contribution.
What the debate has really raised are perfectly genuine concerns that this may not quite have been thought through in the way we would like it to be. As it is such a delicate issue, I hope it could be taken rather more widely than in the actual amendment, by thinking a bit about the way in which the public will understand the distinction between these categories. This bit of additional power given to people who decide to volunteer shines a light on the problem and on the confusion which I am not sure has actually been overcome in the debates that we have had so far.
Baroness Williams of Trafford
My Lords, I thank all noble Lords who have contributed to this debate. It is of course very difficult not to stray into other amendments when talking about something in the round. I thank my noble friend Lady Redfern for laying out her experience of using volunteer police officers in Lincolnshire. It must be one of the first areas in the country to do that, so it was very useful to have that information in the round. In thinking about my noble friend Lord Deben’s point about the importance of the public knowing the difference between a volunteer and a special police constable, or indeed a fully trained officer, I asked myself whether I wondered, when my children were at school, what the difference was between the teaching assistant and the fully trained teacher. In fact, as long as they both contributed to my child’s education, I was not that much bothered—but it may be an issue for some people and I recognise the point that my noble friend makes.
Amendment 167 returns to an issue that was debated at length in the House of Commons: namely, whether it is ever right for designated members of police staff, or the new category of designated volunteers, to carry these particular sprays for defensive purposes. The noble Lord, Lord Rosser, has also given notice that he intends to oppose the question that Clause 38 should stand part of the Bill.
I hope that I can assist the Committee by first explaining what Clause 38 seeks to achieve. It makes necessary consequential amendments to the Firearms Act 1968 to ensure that police volunteers come within the definition of “civilian officers” for the purposes of that Act. The effect of this is that they do not then need a firearms certificate or authorisation under either Section 1 or Section 5 of the 1968 Act in order to carry a defensive spray. The clause simply puts community support volunteers and policing support volunteers in the same position in relation to defensive sprays that police officers and police civilian staff are currently in.
Clause 37(6) makes it clear that police staff and volunteers cannot use other weapons within the meaning of the Firearms Act 1968 unless the Secretary of State makes regulations under new Section 38(9B)(b) of the Police Reform Act 2002. Any such regulations would be subject to the affirmative procedure.
Lord Paddick
To clarify what the noble Baroness has just said, could the Secretary of State, by regulations, authorise police volunteers to carry guns, if they were so minded?
Baroness Williams of Trafford
My Lords, I will repeat that Clause 37(6) makes it clear that police staff and volunteers cannot use other weapons within the meaning of the Firearms Act 1968 unless the Secretary of State makes regulations under new Section 38(9B)(b). Yes, it does read like that—but, as the law currently covers this, it is only trained police officers within London who can be armed.
Lord Paddick
Yes, but I think the Minister has just agreed with me that, through regulations, the Secretary of State could allow police volunteers to be given guns without the need for a firearms certificate. That is slightly worrying.
Baroness Williams of Trafford
My Lords, I am pretty much as certain as I ever can be about anything that it is not the intention of the Bill to allow volunteers to carry guns—but I suspect that I need to provide some further clarification, and hopefully I will do that.
Earl Attlee
My Lords, perhaps I can help my noble friend. It may be that the provision is to allow different types of, say, pepper spray, because the legislation itself is quite specific about which chemicals can be used. There may be future developments in chemicals, and I suspect that the provision in the Bill allows the Secretary of State to specify them. It would be helpful if my noble friend could constrain the Secretary of State by saying that they will never authorise civilian volunteers to have firearms—except perhaps to move them around in police premises.
Baroness Williams of Trafford
It is pretty much on the tip of my tongue to say that, but I think that noble Lords know exactly what the Government’s intentions are.
Lord Harris of Haringey
I think the Minister has unfortunately raised a large red herring, which will certainly prove to be one if she gets the clarification that she wants on it. However, although the intent may not be to allow this, the current wording suggests that it might be used in that way. The specific issue is that a very clear line is being crossed by saying that volunteers can be authorised to use sprays—pepper sprays or whatever else—and that is the distinction. Although the clause may or may not give the Secretary of State powers to increase the list—the Minister way be about to get the answer—or even to specify particular pepper sprays, the concern is about the use of the spray in the first place and whether it is right that a volunteer, despite not having gone through all the other training which is necessary, is able to do that.
Baroness Williams of Trafford
Yes, I totally take the noble Lord’s point, and I am hoping the clarification will arrive from my left in the next five minutes.
As we have made clear in our delegated powers memorandum, this is intended as a future-proofing provision to cover any self-defence equipment not yet invented—and I am not talking about guns. We are also taking the opportunity to make it explicit in the 1968 Act that special constables are members of a police force for the purposes of that Act, and therefore similarly do not require a certificate or authorisation under the 1968 Act when equipped with a defensive spray. This will avoid any doubt being created by the insertion of a specific reference to policing support and community support volunteers within the meaning of “Crown servant” in the Firearms Act.
I turn next to the various points that have been raised in relation to equipping staff.
Lord Deben
I did not quite understand the bit about things that have not yet been invented. The reason I did not understand is that I am not sure that I would be very happy about giving powers to give permission for the use of something that has not been invented, because I do not know whether what has not been invented would be something that I would like to give people the powers to use, if you see what I mean. This is a very dangerous route down which to go.
Earl Attlee
My noble friend does not need to worry about that at all, because it will be under the affirmative procedure, so Ministers will have to justify it. I have to say that future-proofing this seems to me to be a sensible thing to do, although on the other hand I slightly have sympathy for the speech of the noble Lord, Lord Harris of Haringey.
Lord Condon
Before the Minister finally sits down, I ask her to acknowledge and perhaps clarify this point. We are considering this very important crossover point from special constables being given these powers to volunteers having them in the context of what the Bill is also doing. It is enhancing the role of police and crime commissioners by giving them the ability to consider taking on the responsibility for fire and rescue services, and giving them the power to appoint the fire chief as the overall chief officer for policing and for fire. The Bill will create a model whereby, for example, a relatively young 32 year-old police and crime commissioner in an area can choose to appoint the fire chief as the overall chief officer of policing and fire in that area—admittedly, with the approval of the Secretary of State—and in that context a young, relatively inexperienced PCC with a chief officer who may not have a police background could take decisions on what volunteers could and could not do. The notion of them being given potentially lethal force is quite a big issue. I look forward to the Minister, as I am sure she will, giving us some reassurance about the notion of volunteers being able to have pepper sprays that in theory can kill people.
Lord Paddick
I do not want to prolong the agony, but another aspect of this is that members of the public should be reasonably sure about what level of force they are going to encounter from whom. As I say, special constables now are virtually indistinguishable from regular police officers; if a special constable decides to use a defensive spray, that will not come as a shock to the member of the public. In terms of the way that the member of the public interacts with a police officer or special constable, they may or may not use force against that individual on the basis of what they anticipate the reaction of that person to be, or the ability of the person to respond to it. When it comes to a volunteer police community support officer, who does all the wonderful things that the Minister said earlier, I think it is going to be a bit of a shock, and an unreasonable one, to expect such a volunteer to respond with an incapacitant spray.
Baroness Williams of Trafford
My Lords, may I perhaps make a bit of progress on what I was already outlining? Much of what I am going to say answers the questions that noble Lords are asking.
The argument has been put forward that issuing PCSOs with defensive equipment is somehow incompatible with those officers’ primary role, which is to engage with members of the public in their communities. If we examine the way in which different forces equip their PCSOs, we can see that there are different approaches. Some forces equip their PCSOs with body armour and some do not, and the same is true of handcuffs, yet all forces use their PCSOs as the key point of engagement with their local communities. I was one of the people who was very sceptical about PCSOs, but they now have a lot of respect in communities across the country. If the prevailing security situation were such that a particular chief officer considered it necessary to issue their PCSOs with defensive sprays—I emphasise to noble Lords that none has to date—the Government consider that they should be able to, subject of course to the test of suitability, capability and training already set out in the Police Reform Act 2002.
It has also been argued that it is impractical to train volunteers in the use of defensive sprays, to which our response has two limbs. First, if an officer or volunteer has not been properly trained in the use of any power, the law simply does not allow a chief officer to designate that officer or volunteer with the power in question. Section 38(4) of the Police Reform Act 2002, as amended by Clause 37 of the Bill, already states that a chief officer cannot designate the person with a power unless they are satisfied that they are both suitable and capable of exercising the power and that they have received adequate training in the exercise and performance of the powers and duties to be conferred.
However, we do not consider that it is impractical to train volunteers in the use of defensive sprays. On 31 March this year, there were over 16,000 special constables in the 43 police forces in England and Wales and the British Transport Police, all of whom have the full powers of a police officer, performed on a volunteer basis for at least 12 hours per month.
I was grateful to listen to the noble Lord, Lord Paddick, at Second Reading, on his strong support for members of the special constabulary, with whom he will definitely have worked during his career policing. As he said, special constables receive extensive training and have all the powers of a regular constable. Many of those specials patrol on a regular basis with their full-time colleagues and they carry identical equipment, including body armour, batons and defensive sprays—again, in exactly the way as their full-time colleagues. It is therefore patently not the case that it is impractical to train volunteers in the use of such equipment. Any volunteer who did not want to carry such a spray, could not undertake the training or was not suitable would not be designated by their chief to carry and use it, even if others in their force were so designated.
Lord Harris of Haringey
But we might drift off the point. Could the Minister clarify why, rather than encouraging more people to go through the special constable route where they take the affirmation about their role and everything else, the Government are suggesting instead that there be a volunteer category that would not be the same as special constables but would have exactly the same access to equipment?
Lord Paddick
On a very similar point, the Minister just said that while chief constables have the power to issue incapacitant spray to PCSOs, no chief constable has done so to date. Why do the Government now feel it necessary to give chief constables the power to give incapacitant spray to volunteer community support officers?
Baroness Williams of Trafford
It is simply to give chief officers the flexibility to use their workforce and their volunteer force to the best end in fighting crime and reassuring communities. The noble Lord, Lord Harris, asks why, for example, a volunteer cannot simply become a special constable. There are many reasons why you might want to be a volunteer rather than a special constable. We are focused today on the deployment of PAVA and CS spray, but actually a volunteer could be a police volunteer. They could be a retired accountant, for example, or a retired lawyer, and may want to bring their skills to the police but may not want to volunteer for any more than that, or indeed become a special constable.
Baroness Williams of Trafford
My Lords, I am talking about the powers that volunteers may have in the round. There may be myriad different powers, not just the one that we are focusing on.
The noble Lord, Lord Kennedy, talked about policing on the cheap. I remember that when PCSOs were introduced, I said, “Oh, it’s only policing on the cheap”, but actually I have seen the really good benefit that they have brought. As my noble friend Lady Redfern says, they are not a replacement for the police force but a really valuable extra on the streets of Lincolnshire, providing crime fighting for the police.
On that very lengthy note, and thanking all noble Lords for their interventions, I wonder if the noble Lord, Lord Kennedy, would like to withdraw his amendment.
Lord Kennedy of Southwark
My Lords, this has been an interesting debate—quite an extraordinary debate really, has it not? We talked about helpful PCSOs and the work they do helping communities; we got on to CS spray and other sprays. They may be issued with guns—we are not quite sure. We were then told that the Government also want to take a power in case things are invented in future. I am pleased I tabled the amendment: it has certainly dragged a few things out from the Government for us. I think we will have to come back to these issues on Report. I hope that the Government will look at our debate, because there are one or two loose ends hanging there.
The most important contribution came from the noble Lords, Lord Paddick and Lord Condon. Both of them have been very senior police officers, and if they are expressing concerns, the House should listen very carefully. It is important when we grant any new powers that we make sure that people are trained properly to use them. As we heard, these sprays can kill people, which is really serious. We must worry about putting anything in someone’s hands that can do that.
I also want to pay tribute to volunteer PCSOs, who do a fantastic job as the noble Baroness, Lady Redfern, outlined. I will leave it there, but I am sure we will come back to these issues on Report. I beg leave to withdraw the amendment.
Policing and Crime Bill
Wednesday 26th October 2016
(9 years, 6 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 55-II(b) Amendments for Committee, supplementary to the second marshalled list (PDF, 62KB) - (26 Oct 2016)
Lord Rosser (Lab)
Our key concerns about Clause 37 relate to the additional powers that could be given to police volunteers under this clause. I hope that in response the Government will set out in some detail the boundaries or limits of those powers that can be given.
Of course, the police could not do their job without a voluntary army, but a voluntary army should not do the job of the police. The Bill enables chief officers to designate a wider range of police powers to police volunteers. We are concerned that this measure may be a move by the Government to provide cut-price policing and we fundamentally oppose giving policing powers to volunteers to fill the gaps left by the drastic reduction in officer and staff numbers over the past five years. More than 40,000 policing jobs were lost between 2010 and 2015 as a result of government cuts to the police service: approximately a 30% cut in police community support officers; 20% fewer police staff jobs; and 13% fewer police officers. It is not appropriate that those people should be replaced by volunteers through the provisions in the Bill, particularly in roles that are clearly operational in nature.
As I understand it, there is a current agreement between the Home Office, the National Police Chiefs’ Council, the College of Policing and the police staff unions that police support volunteers should bring additionality to the police force, but the agreement goes on to say that they should under no circumstances replace or substitute for paid police staff.
Our police service has the power to use necessary proportionate force in appropriate circumstances. We do not want volunteers to be placed in roles that may require the use of force or restraint and which should be only for officers and members of police staff. Our police service has and needs the power to use force where necessary when carrying out its duty to protect the public. However, under our tradition of policing by consent the public also expect that there will also be accountability, proper training and high professional standards on the part of those who use force in appropriate circumstances. I suggest that those expectations can be met only by warranted police officers and, where appropriate, members of staff.
We are also concerned by the suggestion that there may be circumstances where volunteers will be placed in risky situations. Volunteers have an important role to play in supporting police, but should not place themselves in potentially dangerous situations. A police and crime commissioner for Northumbria has said:
“Rather than extending the role of volunteers, the Government needs to start funding police forces properly, to allow Chief Constables and Police & Crime Commissioners to recruit more police officers, who can go on the beat and serve local communities”.
To reiterate, we believe that the greater use of volunteers in the police service apparently envisaged under the Bill—we are not talking about special constables—is potentially dangerous, particularly in the context of the continuing cuts to police budgets. This year police services in England and Wales are facing real-terms cuts to their budgets which will not be backfilled by the local precept.
We believe it is dangerous to impose those cuts in the context of the provisions of the Bill, with the Government not saying precisely what the boundaries and limits are of what volunteers can and cannot do under the terms of the Bill. I hope that in responding the Government will now seek to remedy that and that the response will not reveal—as, going by the previous debate, I fear it will—that volunteers, rather than just bringing additionality to the police workforce, can in reality be used to replace or be substitutes for paid police staff because of the sheer range of operational and other roles they can be given under the terms of the Bill.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, this clause introduces additional flexibility into the way that the police can deploy their staff by extending the powers of chief officers to designate their staff with powers and by introducing, for the first time, a power to designate volunteers with powers. At this point, I should repeat what I said in the previous debate—that, just as PCSOs are not policing on the cheap, volunteers are not policing on the cheap, either. They all contribute to the force that is the police and all have their different parts to play. This clause, together with the other changes in Chapter 1 of Part 3 of the Bill, will give chief officers the flexibility they need to best shape their workforce to local circumstances.
Volunteers have much to offer policing, including those with specialist skills, for example, in IT or forensic accountancy, which we talked about before, and not just in the use of PAVA spray and CS spray. Special constables are volunteers with all the powers of a constable, but it makes no sense that volunteers who do not want to become specials because they do not want to have powers at all times—this has been previously discussed—or to undertake the physical demands of personal safety training cannot be conferred with a narrower set of powers relating to a particular role. Currently the law also puts unnecessary restrictions on a chief officer who wishes to maximise the operational effectiveness of police staff. These provisions remove those barriers.
Chapter 1 of Part 4 of the Police Reform Act 2002 enables chief police officers to confer some or all listed powers on their civilian staff by designating them to undertake specific functions in one or more of four categories: police community support officers, known as PCSOs; investigating officers; detention officers; and escort officers. Clause 37 amends the 2002 Act to amalgamate the categories of investigating officers, detention officers and escort officers into the single category of “policing support officers”, who would then be designated with the necessary powers to carry out their particular roles. The clause also enables a chief officer to designate a police volunteer as either a community support volunteer or a policing support volunteer.
Subsection (3) repeals the list of standard powers of PCSOs. In future, the powers that PCSOs and community support volunteers have will be a decision for each chief officer. Subsection (4) introduces for the first time a list, set out in Schedule 10, of core powers that can be exercised only by a sworn constable. The list includes powers of arrest and stop and search, and those under terrorism legislation—for example, the power to apply for a search warrant under Schedule 5 to the Terrorism Act 2000 as part of a terrorism investigation. It also includes two powers that were previously available to investigating and detention officers—namely, the power to make a fresh arrest and the power to conduct an intimate search when a medical professional is not available. Following the public consultation last year, we judged these powers to be particularly intrusive and that their use should therefore be restricted to police officers.
Noble Lords may wonder why the list of core powers does not include the power to make entry to premises by force, which was also consulted on as a power that should be restricted to constables only. The 2002 Act currently provides that designated individuals can exercise a power to force entry only in the company and under the supervision of a constable, or for the purpose of saving life or limb or preventing serious damage to property. Therefore, even with the extended designation possible under these provisions, no designated staff member or volunteer would be able to force entry except in the two circumstances described. However, importantly, they would be able to assist or accompany an officer executing a search, or to exercise a power to enter where force was not necessary—for example, as part of an alcohol licensing inspection.
The changes also provide the Secretary of State, in practice the Home Secretary, with a power to make regulations to add to the list of core powers and duties of constables: that is, those powers that may not be designated to staff or volunteers. Any such regulations would be subject to the affirmative procedure, so they will require the scrutiny and approval of both Houses.
The clause provides that, where the person is designated as a PCSO or a community support volunteer, they may be given any of the powers or duties set out in Schedule 8, which are powers currently available to PCSOs in lieu of police officer powers—specifically, the power to make an arrest. These powers include requiring a suspect’s name and address, or detaining a suspect to await the arrival of a police officer, which PCSOs can use in circumstances where a police officer might make an arrest.
Subsection (5) enables a chief officer to limit the extent of, or impose conditions on, use of the powers of his or her designated staff and volunteers. For example, if a volunteer were based in a particular locality, their designation could be restricted to that locality and its surrounding area. Subsection (6) also prevents designated staff and volunteers being authorised to use a firearm or Taser in carrying out their designated role. As we have discussed in relation to Amendment 167, tabled by the noble Lord, Lord Rosser, there is one exception to this rule. PCSOs and other designated police staff, and their new volunteer counterparts, can continue to carry and, where necessary, use CS or PAVA spray, which are classified as prohibited firearms. The clause also includes a future-proofing provision to allow the Secretary of State to make regulations, subject to the affirmative procedure, bringing new self-defence devices within the scope of this exemption.
These are important changes that will give significant additional flexibility to chief officers in the way that they deploy their workforce and volunteers. I hope that noble Lords will not press their opposition to Clause 37 standing part of the Bill.
Baroness Chisholm of Owlpen (Con)
My Lords, Amendments 168, 171 and 173 are minor and technical amendments to update and clarify the arrangements for designated staff and volunteers to use their powers. I do not wish to detain your Lordships unnecessarily, but, if required, I can talk further about each amendment. For now, I beg to move Amendment 168.
“( ) In the case of a relevant offence that is an offence under a listed byelaw (see sub-paragraphs (4)(e) and (6)), the power to impose a requirement under sub-paragraph (1) is exercisable only in a place to which the byelaw relates.”
“( ) In Schedule 6 to the Police Act 1996 (appeals to Police Appeals Tribunals), in paragraph 10(aa) (as inserted by section (Appeals to Police Appeals Tribunals)), after paragraph (iii) insert—“(iiia) a person designated as a community support volunteer or a policing support volunteer under section 38 of the Police Reform Act 2002,”.”
“(g) in that subsection, in the definition of “relevant section 38 designation”—(i) for “designated civilian employee” substitute “designated person”;(ii) for “employee” substitute “person”.”
Baroness Harris of Richmond (LD)
My Lords, before I speak to Amendment 174 perhaps I may remind Members of the Committee of my interests around policing in the register. This amendment seeks to insert the rank of superintendent, and indeed to prescribe it, in legislation. The reason for doing so is to track around the leadership review which the College of Policing has been asked to undertake. It has been looking in part at the ranks structure but has come up against the National Police Chiefs’ Council. It cannot agree to the changes in the ranks structure within policing that the college recommends.
I understand that it had been proposed to introduce a new structure. It was to be a sort of mirror of best practice and management within both the private and public sectors, thus operational level, supervisory level, middle management, senior management and executive level. The NPCC does not rule out the possibility of moving to this model in the future but feels that policing is facing more important issues at the moment than looking at changes in the ranks. It also says that there is no compelling evidence to support them. My contention is that there most definitely is, that it is imperative to modernise the ranks structure now, and that this Bill provides the ideal opportunity to do so.
Baroness Henig (Lab)
I support the amendment moved by the noble Baroness, Lady Harris, in the strongest possible terms. In doing so, I declare my interests as recorded in the Register of Lords’ Interests.
In my long police experience, both in Lancashire and nationally, superintendents and chief superintendents have been the indispensable filling in the police sandwich. Powers from the chief constable and his or her team are delegated down to them, and in turn they take command of and lead the ranks below them. They are the ones who head up important basic command units. They sit on council community safety panels and a range of other local bodies. They establish important relationships with borough council clerks and with council leaders. They were during my time as a police authority chair, and I am sure they still are, the most essential of all the ranks—the indefatigable heads of department, the middle managers just below senior rank, the leaders of the future and the officers with years of constructive practical experience. They are the ones who authorise a range of practical policing strategies in districts, who largely deal with the queries of local Members of Parliament and of councillors, and whose experience is essential to the force. Policing could not be delivered effectively without them.
So why should the rank not be prescribed in legislation, given the centrality of their role? A force would struggle without superintendents—they would have to be reinvented. Indeed, I seem to remember that in the early 1990s the Sheehy report recommendations included the abolition of the rank of chief superintendent. That abolition did not last very long—the rank was reinstated a decade or so later, and I was not in the least surprised. In the light of that experience, I support the amendment that the rank of superintendent should be listed alongside that of constable.
Lord Blair of Boughton (CB)
My Lords, I have not read the speeches of the two noble Baronesses. I am about to make a speech on an amendment that I am about to move. I can only say that it completely dovetails with what has just been said. I am not entirely certain that the superintendent is the most important rank in the police service, but I probably have a special interest in some of that. However, I absolutely subscribe to the point of view that superintendents are the workhorses of governance and practice and I support this amendment.
Lord Paddick
My Lords, I support to an extent the amendment in the name of my noble friend Lady Harris of Richmond and the noble Baroness, Lady Henig. Clearly, superintendents, as my noble friend articulated at length, play an essential role, which is recognised extensively in legislation.
Also in this group, I and my noble friend Lady Hamwee intend to oppose the proposition that Clause 46 stand part of the Bill. Clause 46 allows the Secretary of State by regulations to specify the ranks that may be held by members of police forces other than chief officers of police. A great deal of concern has been expressed in the public domain recently about the cost of, and the perks given to, chief officers of police. One would have thought that if the Government were going to legislate, that is an area that they might have turned their attention to. As the noble Lord, Lord Blair of Boughton, mentioned, we have been here before with the Sheehy report the last time that the Conservative Party was alone in government.
From memory, it was a decision of the Sheehy report and the Government to abolish the rank of chief inspector. At some stage before that was fully implemented, the decision was rescinded. The police service paid off a lot of chief inspectors to get them to retire because it had been told that the rank was going to be abolished, but it never was. That led to the mass recruitment of chief inspectors to fill the gap that had been left because the police service had pensioned off early a lot of the chief inspectors that it then needed.
My point, which the Minister has made continually over the issue of volunteers, is that it should be left to individual chief officers to decide. In the case of police volunteers, the flexibility should be available to chief officers to use them however they want and to give them whatever powers they wish. Surely exactly the same argument applies here: it should be left to individual chief constables to promote officers to particular ranks—or not—depending on local need.
While I accept that, especially in legislation, the superintendent has a particular and pivotal role, similar arguments could be made for police sergeants as custody officers and so forth, or for police inspectors who are often operational team leaders. One could go through and make a case—perhaps not as compelling as that put forward on behalf of the superintendent—for each and every particular rank to continue to exist, given different scenarios in different police forces.
I appreciate that the legislation simply gives the power to the Secretary of State through regulations to specify the ranks but I would argue, for the reasons I set out, both that that is unnecessary and that it limits the flexibility of chief officers in designing a police rank structure that suits their local needs.
Lord Kennedy of Southwark (Lab)
Amendment 174, in the names of the noble Baroness, Lady Harris of Richmond, and my noble friend Lady Henig, is in the clause dealing with police ranks. It amends Clause 46 to require the rank of superintendent as well as that of constable to be retained. We heard from both the noble Baroness and my noble friend who put their names to the amendment about the important role that the officers holding this rank play. That was confirmed by the noble Lords, Lord Blair and Lord Paddick, in their contributions.
I very much agreed with the noble Baroness, Lady Harris of Richmond, when she spoke about the holders of these ranks being senior officers taking senior operational roles. They are held by people with the ability to undertake those important strategic roles and it is accepted that they have departmental and functional responsibilities.
My noble friend Lady Henig also spoke about the importance of the role these officers play across the piece in all departments. I also recall the Sheehy report, and the abolition of chief superintendents being very controversial at the time. As my noble friend said, they were then quietly brought back a few years later. We have heard from a number of speakers who are former serving officers as well as Members of this House who served as chairs of police organisations, and know much more than I do about police operations. They have all reached the same conclusion, so I suggest that the Minister should reflect on what has been said. I hope that she will give a very warm response.
Baroness Williams of Trafford
I thank the noble Baroness, Lady Harris of Richmond, for this amendment, which gives me the opportunity to pay tribute to our police superintendents. The noble Lord, Lord Kennedy, talked about constables but I think he meant superintendents.
Baroness Williams of Trafford
It is late at night and I am just making sure we are on the same page. The noble Baroness, Lady Henig, called them the “filling in the sandwich”.
In the current policing structure, superintendents play an incredibly important role. They set strategy, they are responsible for day-to-day operational policy and in difficult situations they have to show leadership, manage serious risks and make critical decisions during ongoing operations. These are crucial functions that will continue to be a feature of senior ranks in policing. However, there is a lack of flexibility—a word we have used a lot tonight; the noble Lord, Lord Paddick, just used it—in the way that ranks are effectively stipulated in primary legislation. That is why Clause 46 will allow the College of Policing to recommend a new rank structure to the Home Secretary to be set out in regulations.
In June last year, the College of Policing published the findings of its leadership review, which included a recommendation to review the rank and grading structures in policing. In its report, the college said that flatter structures can enable organisations to be more responsive and communicate more effectively. The police-led review of the rank structure is being developed by the chief constable of Thames Valley Police, Francis Habgood, working with the National Police Chiefs’ Council to ensure that proposals will be effective for all forces. The intention is to support policing based on greater levels of practitioner autonomy and expertise. Francis Habgood has developed a proposal for a five management level-model that will sit on top of the existing rank structure and will be based on competence, contribution and skills.
Baroness Harris of Richmond
I thank all noble Lords who spoke on this amendment. I thank the Minister, who gave me time earlier to put my views, and her team. I hope that the Home Office will continue to put pressure on the College of Policing to embed these reforms urgently. It cannot wait much longer just because the NPCC does not like it. Balancing the history, legal powers and organisational role of superintendents, I still feel it is important to enshrine the rank in legislation. I am disappointed by the Minister’s response, although I understand it. I will look again at what she said and may come back on Report. In the meantime, I beg leave to withdraw the amendment.
Earl Attlee
“Power to make regulations to ensure that senior appointees have international policing experience
(1) The Police Act 1996 is amended as follows.(2) After section 50B (inserted by section 46) insert—“50C Regulations for police forces: requirement for senior appointees to have international policing experience(1) The Secretary of State may make regulations by statutory instrument to provide that in each police force only one of the top five most senior officers are promoted or appointed without international policing experience.(2) For the purpose of subsection (1), an officer would be regarded as having “international policing experience” if he or she—(a) had served in a policing operation for more than five months with a UK police rank lower than inspector in a country outside North America, Europe or Australasia;(b) had served in a policing operation under United Nations auspices for more than five months with a UK police rank lower than inspector; or(c) had served in a policing operation under United Nations, NATO or African Union auspices for more than eleven months.(3) Before making any regulations under subsection (1), the Secretary of State must consult the College of Policing.(4) The Secretary of State may by regulations made by statutory instrument make provision that is consequential on, or incidental or supplemental to, regulations under subsection (1).(5) The power conferred by subsection (4) includes power to—(a) repeal, revoke or otherwise amend legislation that (in relation to members of police forces in England and Wales) makes provision with respect to ranks that are not specified in regulations under subsection (1);(b) make other amendments of legislation that are consequential on regulations under subsection (1).(6) Regulations under this section may include transitional, transitory or saving provision. (7) Regulations under this section may make different provision for different cases or circumstances.(8) A statutory instrument containing regulations under this section may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.””
Earl Attlee (Con)
My Lords, in moving Amendment 176 I will speak also to our Amendments 177 and 178. These amendments all concern the quality and experience of senior officers.
Amendment 176 seeks to ensure that it would be unusual for a senior police officer not to have some international policing experience. There are two drivers for this. The main one is that the UK has done some great work with international policing missions. I recall visiting policing missions in the Balkans, where UK secondees were doing first-class work, although a lot of them were from the Royal Ulster Constabulary, for reasons that the Committee will understand. The rapid establishment of justice and the rule of law, JROL, in a post-conflict situation is extremely important—initially, I suggest, much more important than democracy and elections. I hope the Minister can show that we are still doing some useful international policing work somewhere in the world.
A difficulty with my amendment is that there are not always vacancies in international policing operations, for a variety of reasons, which is why I have broadened the qualifying roles. However, there are problems. In the past, particularly when we were carrying out policing operations in the Balkans, I detected reluctance on the part of policing authorities to authorise secondments to international policing operations, for parochial reasons. In other words, they saw no direct benefit to their policing operations—the Committee will understand that. In addition, our high-flying police officers know what they need to have on their CVs in order to secure a post at chief officer rank, and I do not believe it includes international policing operations. Although a relatively junior rank-and-file police officer can do a very good job in an international policing operation, we do not necessarily send out our very best people to those operations.
The other driver is that it is desirable that very senior police officers have broad policing experience, and not just in the UK. I am convinced that a senior police officer with some international experience would be a much better one, rather like politicians who have done something other than the standard route to Westminster: school, university, research assistant, local government. I have realistic aspirations for this amendment and the others, and there may be practical difficulties. But if the principle was implemented in some way, I would envisage high-flying police officers gaining their international experience at an early point in their careers. Police authorities and the College of Policing would know that it would have to be offered as part of the offer to recruits. It may be that they take on a big international policing job later on in their career.
My next amendment seeks to put quite tough limits on internal promotion or appointment to very senior positions within a force. I am more than content with the principle of PCCs, but at Second Reading we heard that there might be an unintended consequence of less promotion from outside a particular police force. The inherent risks of this are an unwillingness of the senior officers in a force to grasp unpleasant issues, sycophancy in order to gain promotion and, possibly, corruption. It would also tend to make it much more difficult to get wider experience, because positions in other forces would tend to go to internal candidates. An extremely unfortunate end result could be that the best-quality high-flyers might decide not to pursue a career in the police service at all, because they would realise that they would be unfairly competing with weaker, internal candidates. Can my noble friend say whether she has detected any change in recent years in the number of applications for very senior police posts?
My final amendment, Amendment 178, deals with leadership. First, I make it clear to the Committee that I do not regard myself as an expert on the matter of leadership or even an expert on measuring it. I regard leadership as the capability to get others to do things that they would rather not do or, perhaps sometimes, to desist from doing things that they want to do. It is not to be confused with management. For instance, a superior who relocates his or her centre of operations to an office rather more central for the majority of the team is exercising good management. If this relocation is to the superior’s personal disadvantage, there is an element of good leadership.
However, it is largely an acquired skill—that of being selfless. Leadership is not charisma, although the two often come together. There is innate leadership, and there may well be genetic factors at play, but I have no doubt at all that environmental and economic factors from the moment of birth are very significant. The good news is that there are methods of objectively measuring leadership, both acquired and innate.
Since at least the last war, our Armed Forces have had objective tests of leadership for selection for a commission. Several well-developed tools are used, but the command task is interesting. Candidates are tasked with the practical task of crossing an obstacle course with a range of 45-gallon oil drums, scaffolding planks and ropes. The directing staff know all the possible plans for achieving the objective, but only a few will work. What is being carefully measured is not the ability to select the correct plan but the ability to effectively lead the team even though the directing staff know that the plan selected will not actually work. How long will members of the team follow the task leader with such a plan? Most importantly, how willing are other members of the team to make a helpful suggestion, and how skilful is the task leader at taking up good suggestions while still maintaining command and control?
I am not suggesting that the Armed Forces have perfect selection procedures. They do not; sadly, I have come across several pretty poor officers. As I understand it, though, the UK police do not select for promotion to any rank taking into consideration an objective measurement of leadership. I am also led to believe that the pool of talent is no longer being properly managed, and I hope that other more experienced members of the Committee will cover that point. I am therefore never surprised at the things that go wrong with UK policing. Your Lordships have only to think of the aftermath of Hillsborough or Operation Midland.
All the amendments in this group seek to head off problems that will only get worse if not addressed. I look forward to the noble Lord, Lord Blair, moving his amendment. In the meantime, I beg to move.
Lord Dear (CB)
My Lords, I shall speak to Amendments 176, 177, 178 and, tangentially, 178A. I am pleased to support the noble Earl, Lord Attlee, in his amendments. I want to underpin much of what he has said and, to use his words again, to identify what I think is a growing law of unintended consequences that has flowed over the last five or six years in policing. To many of our minds, there is a growing shortage of leaders as opposed to managers, which the noble Earl has already alluded to. I might take that a little further and say that in my view there is some sign that the quality is diminishing among the senior ranks, and those who are putting themselves forward for senior ranks, within the British police.
It might be helpful if I go very quickly through the history of selection for the British police service, without taking too much of your Lordships’ time at this hour of the evening. Prior to 1948—there was a Police Act around that time—there was a superabundance of police forces in this country, many of them very small and most of them not talking to each other. The powers that they could exercise in neighbouring forces were severely limited or indeed non-existent. The words “parish pump” come to mind. This did not matter too much in those days because society was largely static; the great mobility of motorways, railways and that sort of thing had not yet come, so it was more or less okay for the time.
However, by the middle of the 1960s, following the royal commission of 1962, things had begun to change. There was a huge wave of amalgamations, which helped to fashion police forces in such a way that the parish pump largely disappeared, forces were largely aware of what was happening alongside them, co-operation began to grow and the whole policing scene changed for the better.
Underpinning all that was the establishment in 1948 of the Police Staff College. It started off originally in temporary accommodation at Ryton-on-Dunsmore in Coventry but moved fairly quickly in 1960 or thereabouts to Bramshill House in Hampshire. I venture to suggest, having been there as a student and on the staff, that it was probably the Bramshill staff college experience that helped to co-ordinate and make a cohesive whole of the police service in a way that nothing had done before. It brought together officers of various ranks on various courses, opened their eyes and broadened their horizons. It broke down, if you like, the old fetter of local training that was still going on in those days.
Lord Blair of Boughton
My Lords, I am most grateful to the noble Earl, Lord Attlee, and to the noble Lord, Lord Dear. My response to the situation is quite close to that of the noble Lord, Lord Dear—to be honest, I am quite surprised at how close it is. It is complete dismay. My dismay is that these amendments have been tabled by four Back-Benchers when they should be the responsibility of the Home Office. Police leadership is in crisis not because of the men and women who are doing it now but because the structures and processes just outlined by the noble Lord, Lord Dear, have just been let go.
I will deal first with my response to the noble Earl’s amendments. I do not think that the international policing aspect works. It does not work, first, for the reason mentioned by the noble Lord, Lord Dear, that officers tend to go when they have already retired. The second reason is that many police officials across the world are effectively judicial officials and Governments absolutely hold tight to themselves that their nationals should perform those jobs. There is no embedding. The third reason, which is about United Nations or other peacekeeping arrangements, is that the UN, or whatever body, insists that officers should be armed. In our time only the RUC—now the PSNI—would release those officers. In the Metropolitan Police only 7% or 8% of its officers are armed. It will not send those away to police somewhere else under any circumstances. With the greatest respect to the noble Earl, I do not support that position.
On Amendment 177, about experience in different police forces, I absolutely agree with the noble Lord, Lord Dear, who was an inspector of constabulary. At the time, I was the staff officer to the Chief Inspector of Constabulary and he, on behalf of the Home Secretary, controlled who was appointed to where in this sense: you had to have passed the strategic command course, you were then recommended on the decisions of the inspectors as to what calibre of officer you were, and sometimes you were specifically told by the Home Office that you were not to apply for a job because it was too small for you.
The best people were being sent to the best jobs. I really have expertise in this particular point because I administered that system for two years, as the noble Lord, Lord Dear will know. It was very brutal but it was very accurate. We have lost the rule that you could not do the top three jobs in any police force. You were not allowed to do that; you could not be an assistant, a deputy and a chief constable in the same force; you could not be the parish pump. You just would not get on to the list. Somehow, somewhere during the coalition, that disappeared.
The noble Earl’s amendment is about leadership. Somehow, we managed to sell the Police Staff College at Bramshill without replacing it. It is not a royal yacht, it is not just a generally good idea to have one; it was the absolute essential of what made the United Kingdom police service the envy of the world in the selection of its chief officers. We have lost it. Nobody knows where it has gone. Bramshill is sold. Why is the Home Office not bringing this matter forward rather than two, three or four Back-Benchers at 10 pm?
I now move to Amendment 178A, which is tabled in my name and that of my noble friend Lord Condon, who will speak in a moment. I had the pleasure of talking to the Minister this afternoon about this amendment, and I am very grateful to her. I really hope that the Official Opposition and the Liberal Democrats will look at this amendment and perhaps by the time we get to Report we will have some coalescence around this position.
I am sorry to bring the Committee back to this, but I need to return to my speech at Second Reading, which went back to a debate during the passage of the Anti-social Behaviour, Crime and Policing Bill when it was suddenly discovered in this House that there was no longer a requirement for any senior police officer to have policing experience. It had disappeared somewhere in a lacuna in the different legal processes. The four noble Lords who had been commissioners of police were sitting and standing open-mouthed at the discovery that this had happened behind their backs without anybody noticing.
As the noble Lord, Lord Dear, said earlier, we are returning to the pre-Second World War situation. Most of us have seen “The Mousetrap”, where the chap reaches for the telephone and says, “I’ll ring the chief constable. He was in my regiment”. We stopped that after 1945 and said that it would be a good idea if senior police officers had police experience. I accept the ideas of deregulation and devolution, but somehow this Government, and, to be fair, particularly this political party, seem to be of the view that policing is unlike anything else and that it is not important for senior police officers to have had experience of doing middle-ranking work as the superintendents whom the noble Baronesses, Lady Henig and Lady Harris, reported on. I do not understand that. You would not do that in the armed services, law, medicine or accountancy.
This amendment would put back into statute that it would be a good idea—just a simple, good idea—if the beginning point was that it was likely to be useful if somebody had served in a senior police rank before they applied for a higher one. The amendment makes two separate provisions. It allows the exception that the Anti-social Behaviour, Crime and Policing Act put together which allows a foreign officer to do it if he or she has the right experience, and it certainly allows for the kind of transfer, if this is to be the case, in which fire officers become involved via the PCC, but it states that the Secretary of State on the advice of Her Majesty’s Chief Inspector of Constabulary should agree that. The opening position is that you cannot be promoted to the senior ranks of the police service without having been at a middle or more senior rank beforehand unless the Secretary of State says so.
If something like this is not enshrined in law, I have to agree that the rather dismal predictions of the noble Lord, Lord Dear, will come true. This Government and their predecessor have created a thing called Police First, which is about bringing bright young men and women into the police service at the rank of superintendent. What is the point of coming in at the rank of superintendent if you can come in at the rank of chief constable? Why would you bother? What is this about? Why is it not the position of the Government, the Opposition and the Liberal Democrats that it is simply a good idea that policing should be like any other profession and that experience is a useful thing to have? That is the simple part of my amendment, to which I hope the noble Lord, Lord Condon, will speak in a moment.
Lord Condon (CB)
My Lords, in view of the time, I am not going to repeat the points made so far. Suffice it to say that I agree totally with what the noble Lords, Lord Dear and Lord Blair, said on these issues. I might put the emphasis slightly differently—in some parts more strongly and less strongly in others—but in the round I agree with all they said.
I go straight to the amendments. On the first amendment, tabled by the noble Earl, Lord Attlee, I agree that overseas experience is desirable—it is nice, it is to be welcomed. As commissioner, I spent one Christmas visiting my officers in Sarajevo and elsewhere in that region, and I was very proud of the work that they were doing. I had a wonderful detective sergeant who was in command of more than 400 international police officers, many of them of chief officer rank. In the merits of a local situation, she was selected as a British detective sergeant to command those 400 overseas officers, and she did it magnificently. So I do not underestimate the merits, experience and legacy of working overseas—but it is too narrow an issue to be prescriptive as of today in relation to chief officer posts. It is a laudable aspiration, but let us not make it a prescriptive requirement of being a chief officer.
On the second amendment, on the parochial point about not being promoted from within the one force, I raised that point at Second Reading, as a very serious unintended consequence of police and crime commissioners. One of its great strengths and merits is its very parochialism and local focus—but that is an enormous downside with regard to the selection of chief officers. A couple of months ago, I tabled a Written Question that was answered by the Home Office Minister. I asked how many chief constable promotions over the last year came from an outside force and how many were internal promotions. As the noble Lord, Lord Dear, said, those internal promotions only a few years ago would not have been technically possible; they would not have been allowed by the Home Office or the inspectorate. The answer was that the overwhelming majority of all the appointments of chief constable over the last few years have been internal. Very few have been external appointments—and so good, aspiring, young police officers will not seek to apply any more for those posts.
The movement between forces has now virtually stopped. There is an acceptance that police and crime commissioners will appoint only their sitting deputies and will not consider other candidates. The Government, the inspectorate and the Home Office must find some remedial mechanism which interdicts that process, encourages movement and ensures that the best people are promoted. I do not really mind what the mechanism is, but we need to face up to the challenge and the mischief that is currently happening—we are shrinking the gene pool of talent at the very top levels of policing.
On the final amendment from the noble Earl, Lord Attlee, I support broadly what he is aspiring to do, which is to have clearer ideas and objective measurement of leadership. That must only be a good thing.
The motivation for all the amendments in this group—three from the noble Earl, Lord Attlee, supported by the noble Lord, Lord Dear, and one from the noble Lord, Lord Blair, and me—is to ensure the best possible senior police leadership with appropriate skills and experience. We are where we are—we will not be able to unpick what has happened quickly. My support for the amendment of the noble Lord, Lord Blair, is about facing up to where we are. There is a growing acceptance that outstanding candidates no longer need to start their police careers as constables or to progress through all the police ranks before serving in the most senior ranks.
The noble Lord, Lord Blair, and I, in our amendment, provide for the possibility of an outstanding external candidate with no police experience being considered for the roles of commissioner, chief constable, or Director of the National Crime Agency, if the Secretary of State is so minded, but after he or she has taken advice from Her Majesty’s Chief Inspector of Constabulary about the candidates who are available and willing to be considered, as well as any external candidates. But being commissioner or chief constable is about more than being an able leader or an able administrator. It is also about very specific command and control within policing. It is about life and death authority over the use of complex legal powers and authorities, which become more and more important as terrorism becomes more of a threat in Europe. It is about setting professional standards of integrity and performance, based on very detailed understanding of police culture, capabilities and weaknesses. While an able General, Admiral or former Permanent Under-Secretary, for example, can bring enormous leadership and administrative skills, they will be at a disadvantage initially in not understanding or knowing some of the cultural, professional and technical issues that face policing.
I acknowledge that we are where we are. The gene pool of police leadership should and must be improved. Ideally, it would be through taking some of the best from history, recognising where we are now, and moving forward in the way that the noble Lord, Lord Dear, indicated. But, in improving it, we should not do so in a way that trivialises relevant police experience or demoralises able men and women who have already embarked on police careers. Some have very recently come in as direct entrants at superintendent level and have aspirations and expectations to rise to the most senior posts in the service. I hope that the Minister will acknowledge that while room and encouragement should be given for exceptional candidates without a policing background to be brought into top police posts, more effort should now be put into developing, as soon as possible, able men and women who see policing as a career that occupies much of their professional life, building on the current schemes for direct entry at various levels up to and including that of superintendent.
I am approaching almost my 50th anniversary of being around policing. I am very proud to have been a police officer. Like the noble Lords, Lord Dear and Lord Blair, I am a product of the system that was described. Some people crassly call for leadership to be helicoptered in from almost anywhere. This is not about education. I am an Oxford graduate, as is the noble Lord, Lord Blair, and the noble Lord, Lord Dear, is a Cambridge graduate. The current commissioner is an Oxford graduate. As I say, this is not about education. If it is about performance, past police leaders have outperformed on courses such as those of the Royal College of Defence Studies and the Cabinet Office Top Management Programme, on which I was sent by Prime Minister Thatcher. So there is a legacy of police leaders competing with, and outperforming, their peers and contemporaries in the military, in public service and the private sector.
However, this issue is not about that. In some cases, I fear that it becomes almost a pernicious class argument. As the noble Lord, Lord Dear, hinted, I worry that we are going back to the good old, bad old days—the pre-war thinking that not enough commissioners or chief constables have spent enough time in some of the best public schools. It is so sad when the argument boils down to that. This is really about trying to get the best leadership in policing, I hope that the Government, the Home Office and the Chief Inspector of Constabulary will put their heads together to help us find a way through this, because the direction in which we are going will not enhance police leadership; it will weaken it.
Lord Rogan (UUP)
My Lords, the PSNI has a requirement that before potential chief constables are appointed, they have to serve—I think for one or two years—in a force other than one in Northern Ireland. Perhaps that requirement could be introduced in the rest of the UK.
Lord Paddick
My Lords, I shall try to be brief. I am getting wind-up signals already. As regards Amendments 176, 177 and 178, the opportunities for international police experience are very limited. Therefore, to mandate it would be to disadvantage many able candidates for promotion. Something desperately needs to be done to stop people being promoted just from within the most senior ranks within the force because the police and crime commissioner knows the candidates and does not know candidates from outside forces. As the noble Lord, Lord Blair, and others have said, it used to be a rule that, if you wanted to be the chief constable, you could not have been the assistant chief constable and the deputy chief constable in that same force. That rule needs to be brought back.
I say to the noble Earl, Lord Attlee, that the difference between leadership and management is that management is about getting people to do what you want them to do and leadership is about getting them to want to do what you want them to do. The latter approach is essential in policing because in most circumstances you are not with the officer when the officer is in contact with the public.
As regards what the noble Lord, Lord Dear, said, the three-day extended interview, the strategic command course and the strategic leadership course were good models and produced good candidates. Something needs to be done to rectify that situation.
I was slightly disappointed that the first I knew of the amendment of the noble Lord, Lord Blair of Boughton, was when I saw it in the Marshalled List. If he had sought our help, we would have supported his amendment. I hope that we can work together on it between now and the next stage of the Bill. The noble Lord may recall that when we had discussions about direct entry at superintendent level, I went further than him and the noble Lord, Lord Condon, in terms of the need for police experience.
The Minister can learn from the experience of the noble Lord, Lord Blair, as commissioner. Within weeks of him becoming commissioner, the bombing on the London Underground and on the bus in Russell Square happened. Do the Government want to put somebody who has no experience of policing, or even somebody who has had experience in another country and who does not know the capacity and the powers of the British police service or the laws that apply in this country, in a situation where within weeks they could face that sort of disaster?
Lord Rosser
I do not know whether I should have been declaring an interest throughout today’s proceedings but it is a bit of a shock to find that throughout them I have been clutching a pen on which is written: “Metropolitan Police Forensics—New Scotland Yard”, so I had better declare it now.
This has been an illuminating debate for me on some of the issues that confront the police over training, appointments and leadership under the present arrangements and organisational structure. If the noble Lord, Lord Blair of Boughton, wishes to discuss his amendment, I will be more than happy to do so. I can say only that I thought that we would find a significant conflict between the two sets of amendments, but now that I have listened to the debate, that does not appear to be the case. Perhaps the ideal would be if the noble Lords, Lord Dear, Lord Blair of Boughton and Lord Condon, produced an amendment with which all three of them could associate themselves if they wish to pursue the matter through to the next stage. Obviously, they will want to hear the Government’s response before seeking to make any decisions on that point. However I will leave it at that, and I certainly await with interest what the Minister has to say on behalf of the Government.
Baroness Williams of Trafford
My Lords, I almost hesitate to stand up given that I am surrounded by experts in this field—and I did not go to Oxbridge either. All noble Lords have said in different ways this evening that choosing our police leaders is of the utmost importance for the future of policing, and as the noble Lord, Lord Condon, said, we need to think about it now. We fully support initiatives to ensure that police leaders are drawn from different backgrounds. That is why the Government asked the College of Policing to carry out a leadership review for policing in 2014. We wanted to look at how we could open up policing to fresh perspectives, including by expanding external recruitment to the senior ranks in policing. The review also examined how we could encourage officers to gain experience outside policing before returning later in life and how we could open up senior ranks to candidates from different backgrounds.
The review, which was published in June 2015, was a landmark for policing, setting the agenda for change and for police workforce reform. Its impact is already being felt across policing, from the new qualifications and apprenticeships for those at the start of their careers to opening up police leadership through direct entry and senior secondments, as some noble Lords pointed out.
The review recommended that national standards for recruitment and promotion into all roles, ranks and grades should be established and that all vacancies are advertised nationally. Building on the qualities for professional policing which have been defined in the College of Policing’s new competency and values framework will help to ensure that there are clear and consistent standards for each rank. Advertising roles nationally will open recruitment and make it easier for officers and staff to apply for roles in other force areas—noble Lords mentioned that that does not happen as much as it should. The college has statutory powers to recommend that the Home Secretary makes regulations on a range of issues, including the qualifications for appointment and the promotion of police officers, thus ensuring that these are implemented across England and Wales.
As part of implementing the leadership review, the college is exploring how to improve the diversity of top teams by increasing the pool of candidates for chief officer posts and supporting police and crime commissioners in their selection processes and recruitment campaigns. They are also identifying development packages for those who are appointed from overseas or, as a result of the provisions in Part 1 of the Bill, from the fire service. To support this work, the college has led for policing by undertaking a survey of PCCs, as well as of chief constables and other senior police officers, to understand the issues around senior appointments and developing the talent pool.
It should be the norm that police leaders have a breadth of experience and that they have access to other professions and fields to harness new skills that they can apply in policing. We strongly believe that it is possible to learn from policing overseas, and that is why we have already given the College of Policing the power to approve overseas police forces from which senior police officers are eligible to be appointed as a chief constable in England and Wales or as the Commissioner of the Metropolitan Police. These are set out in the Appointment of Chief Officers of Police (Overseas Police Forces) Regulations 2014 and include forces from Australia, Canada, New Zealand and the United States.
We support the work of Chief Constable Andy Marsh, the National Police Chiefs’ Council’s lead on international policing, in establishing the Joint International Policing Hub to act as the single, recognised gateway for international policing assistance for domestic and global partners.
The amendments tabled by my noble friend Lord Attlee seek to open up recruitment to the senior ranks in policing. As I have set out, the Government are very supportive of initiatives to achieve this. However, we believe that this should be led by the College of Policing, as the professional body for policing, and that it already has the necessary powers to achieve this.
We deploy police officers overseas to pursue matters of interest to the UK and share our expertise. For example, we sent officers to France to work alongside the French police in dealing with football fans at the Euros.
The noble Lord, Lord Blair, clearly comes at this issue from a different perspective. Amendment 178A in his name seeks to enshrine in statute a presumption that all those who are appointed to chief officer rank must previously have served as a senior officer in a UK police force.
When we introduced police and crime commissioners in 2012, we wanted people to have a say in policing in their local community. We gave PCCs the power to appoint the chief constable because we recognised that this appointment was crucial to implementing the PCC’s policing and crime plan. PCCs understand what the local issues are and are best placed to understand the leadership requirements of their force. It should not be for the Home Secretary to give prior approval as to who is eligible to apply for each and every chief officer post that is advertised. That would not be practical or desirable. However, today I gave the noble Lord, Lord Blair, an undertaking—and I offer it to other noble Lords; I have such a field of expertise around me that I shall open it up—to have further discussions on this area. I would welcome them and would be very happy for them to take place before Report.
The College of Policing has the power to set standards for all police ranks and can introduce new measures as recruitment at senior ranks is opened up further. It has shown how successful it is at this with the introduction of the direct entry programme and the fact that talented people from other sectors are now working in policing. The college is now working to compare the skills, abilities and knowledge needed to be a chief constable with those of chief fire officers to develop a rigorous assessment and development package for those who are interested in the top jobs in policing as a result of the reforms in Part 1 of the Bill.
As I have indicated, the Government want the best people leading policing. We believe the best way to achieve that is to have open recruitment from a wide talent pool, national standards set by the professional body and local decision-making that reflects the needs of the force and the local community. I realise that we have gone past 10 pm, but I hope that the noble Earl will be content to withdraw his amendment.
Earl Attlee
My Lords, this debate has exceeded all my expectations. There have been few times in your Lordships’ House when I have tabled an amendment that has been as effective. I will read what my noble friend the Minister has said with great care, but I suspect that I will not be surprised.
On one condition, I will not only withdraw my amendment but will not return to the issue—although other noble Lords may want to return to their issues. The condition is this: the Minister has an excellent Bill team manager—I know that because he has worked with me and with the Chief Whip—and I would like him to cut out this debate from Hansard and put it in the Policing Minister’s red box and the Home Secretary’s red box. The speeches from the noble Lords, Lord Dear, Lord Blair, and Lord Condon, were very serious and said that we are going in the wrong direction on this problem—that will come to bite us eventually. I believe that the Home Secretary needs to do something about this, and to listen to the warnings from the noble Lord, Lord Dear. I thank all noble Lords who contributed to this debate and beg leave to withdraw my amendment.
Lord Blair of Boughton
“Eligibility for senior police posts
(1) The Police Act 1996 is amended as follows.(2) After section 50B (inserted by section 46) insert—“50C Eligibility for senior police postsSubject to section 140 of the Anti-Social Behaviour, Crime and Policing Act 2014 (appointment of chief officers of police)—(a) an application may not be considered from any individual applying for the post of—(i) Assistant or Deputy Chief Constable in any police service;(ii) Commander or Deputy Assistant Commissioner in the Metropolitan Police Service; or(iii) Commander or Assistant Commissioner in the City of London Police;without previous experience in the police service in the United Kingdom at the rank of Superintendent or above, unless prior approval has been given by the Secretary of State, following advice from Her Majesty’s Chief Inspector of Constabulary;(b) an application may not be considered from any individual applying for the post of—(i) Chief Constable in any police service;(ii) Assistant Commissioner, Deputy Commissioner or Commissioner of the Metropolitan Police Service;(iii) Commissioner of the City of London Police; or(iv) Director or Deputy Director of the National Crime Agency;without experience in the United Kingdom’s police service in a rank no lower than two ranks below that to which the application is being made unless prior approval has been given by the Secretary of State, following advice from Her Majesty’s Chief Inspector of Constabulary.””
Lord Blair of Boughton
My Lords, I should say to the noble Lords, Lord Paddick and Lord Rosser, that the reason I did not consult either of them was that I never expected that we would reach this clause on this day. It was only on Friday that I discovered, through the excellent Bill team, that we were going to reach this point. I would like the opportunity to talk through with Labour, the Liberal Democrats and the Government whether we can move forward.
Peel said something very interesting—that,
“this should not be an occupation for gentlemen”.
It took me 30 years to understand what that remark meant. It meant an extraordinary Victorian experiment, because that was the period in which you bought commissions, you bought livings and you bought places in the Civil Service. Peel was saying that the police service should be a meritocracy.
The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)
Does the noble Lord wish to withdraw his amendment?
Baroness Henig
Baroness Henig
My Lords, I am very conscious of the lateness of the hour and I will try to be brief. I am particularly grateful for being allowed to move the amendment now because next Wednesday I have some important responsibilities; I am captaining the House of Lords bridge team against the House of Commons, and that is why I cannot be here next week. Again, I am grateful that we are able to take the amendment tonight.
I should say at the outset that I have worked alongside and observed the activities of members of the Police Federation for more than 25 years at both the local and national level. I would say that this experience has given me some expertise in Police Federation matters, but of course expertise currently is not something to boast about or perhaps even to lay claim to.
I am sure that we all know that the chief objective of the federation is to represent the interests of its members, and in my experience the Police Federation does this extremely well at both the local and the national level. Indeed, that support network is very necessary. Police officers do a difficult and often dangerous job. They need and deserve the security of knowing that the Police Federation will always be there to defend them if or when things go wrong, particularly legally, but every now and again in relation to terms of service and powers, and politically as well.
It is of course true that the Police Federation should not operate exclusively on behalf of its members. We the public need to have confidence in police officers, so it is important that members and particularly officers of the federation, in carrying out their functions, maintain high standards of conduct and of transparency. Here I have to observe that their conduct has often left something to be desired. I have myself seen at first hand evidence of bullying and of loutish behaviour. I have seen intimidation and ways of operating that manifestly do not command confidence in the integrity of federation officers. I am not alone. There can be no doubt that in recent years their collective actions and attitudes have on occasion grated on successive Governments, and they have alarmed middle England and the devoted readers of the Daily Mail. In the wake of the fiasco surrounding the clash of who said what and did what in Plebgate, the federation itself resolved to carry through a raft of root-and-branch reforms, It asked Sir David Normington to carry out an examination of the structure of the Police Federation and of its objectives. In his resulting report, Sir David proposed among other changes that in fulfilling its statutory responsibilities for the welfare and efficiency of its members, the Police Federation should,
“act in the public interest”.
The Government are taking on board this recommendation but have modified it somewhat to stipulate that the Police Federation must act to “protect the public interest”. I believe this to be a massive overreaction and a serious mistake.
This is for two principal reasons. The first is that I do not know what “protecting the public interest” means. I have served as a local magistrate for 20 years and I know the importance of having laws that are clearly worded and fully understandable to the general public. Opaque words lead to bad law. I have therefore spent some time asking a number of my legal friends, some of them in this House, what they think is meant by “the public interest”. My learned friends cannot tell me. They do not agree and there is no accepted understanding of the phrase, and indeed there is some disagreement on what it might mean. So what precisely are we asking the Police Federation to do? They and we need clarity, so I would like the Minister to spell out to me, and more importantly to the legal profession, what she believes is meant by “protecting the public interest” as it applies to the Police Federation.
My second concern is that in representing its members, which the Police Federation has a prime duty to do, it could easily be drawn into doing the opposite of protecting the public interest. There may be officers whose cases, once the evidence is heard, could undermine trust and confidence in the police and could suggest that they have behaved in ways that have not protected the public interest, either deliberately or inadvertently. Should the federation not represent such officers? It is not difficult to foresee a conflict between the federation’s duty to look after the interests of its members and the obligation to protect the public interest, however it is defined. My strong view is that the federation is first and foremost a staff association, although I accept that it is a body that needs to act in a way which commands the trust and confidence of the public. So while it certainly should maintain high standards of conduct and high levels of transparency, fear of breaching this clause about protecting the public interest should not be able to inhibit the federation from representing the interests of its members. I believe that that might well be a consequence. It sounds grand to bestow on the federation a public purpose, which some of the more grandiose officers in the federation actually rather like, but to my mind it is a hollow aspiration. It is just words that sound good but have no agreed or clear meaning. I therefore believe that the words in proposed new subsection (1A)(a) in Clause 48 should be removed. I beg to move.
Baroness Harris of Richmond
My Lords, in drafting this amendment, the noble Baroness, Lady Henig, and I spent many happy hours trying to determine what exactly the “public interest” is, as she has said. It can mean a whole lot of different things to different people and its interpretation is interesting in the context in which it is presented in the Bill.
As we have heard, the Police Federation has followed the recommendation—I emphasise “recommendation” —of Sir David Normington’s review into how to improve itself. It decided that it would establish an independent reference group. At Second Reading I gave your Lordships a full account of how that independent reference group, which I chaired, had been treated. After we were set up as a fully functioning group in January this year, the Police Federation decided it did not want to use us to help it realise its stated purpose of reforming. This was in spite of the membership of that group having within it people with more than 100 years’ experience of working with the police, a very senior and highly respected retired civil servant and the first woman to run a fire authority—so not all of us were politicians, to whom the present chair of the Police Federation was vehemently opposed anyway. Yet all of us were committed to helping the Police Federation improve its image. We were, effectively, sacked in May this year, having been unable to do anything meaningful to help.
I am quizzical about just where the “public interest” fits into this scenario. It is bandied about, as the noble Baroness suggested, but nobody can actually pin down what it means. Is the Police Federation in denial of its obligations to the public interest by behaving in the way it has? If so, what is the meaning of the phrase now? Will the public be pleased at how the organisation has conducted itself—in their interest—or will they be as puzzled as we were about the behaviour of the management of the Police Federation arbitrarily to interpret that interest in this particular way? The phrase needs removing from the Bill unless the Minister can convince me that it is at all meaningful. I would be grateful if she could give me some examples.
Lord Wasserman (Con)
My Lords, I very much welcome the amendment. It deals with an issue I raised in the Second Reading debate on the Bill in your Lordships’ House. As I said at that time, and repeat for the sake of maintaining the highest standards of conduct and transparency, I was, until a few months ago, an unpaid adviser to the Police Federation of England and Wales and had been acting in that capacity for the best part of the previous three years.
I hope that I also made clear in that debate that the line I was about to take in respect of Clause 48 had not been prompted by the Police Federation. Indeed, it was not even supported by the leadership of that organisation. That position has not changed. My views on Clause 48 and, in particular, on the four words which this amendment seeks to omit, remain as they were in July—that is, mine and mine alone. Indeed, it is a cause of some regret that not even my noble friends on the Front Bench are likely to agree with me.
I say that this is a cause of some regret because my views stem directly from my experience as an official in the Home Office—an official doing very much the same job as those who prepared the Bill. The rule in the Home Office at that time was that, when preparing legislation, every effort had to be made to avoid giving hostages to fortune, or making rods for one’s own back—or any number of similar clichés. In practice, this meant that one’s seniors and betters were constantly on the lookout for words which they could strike out of draft legislation because they were not absolutely necessary. Every word in every Bill, we were taught, could be used by clever, rapacious lawyers as a stick with which to beat the Government—or at least a stick to beat other clever and rapacious lawyers. For this reason, every word in a piece of draft legislation, particularly primary legislation, had to be justified as being absolutely necessary and not amenable to misinterpretation or exploitation for purposes other than those directly related to the main purpose of the legislation in question.
I regard the words “protect the public interest” in Clause 48, as the noble Baronesses who spoke before me said, as precisely the kind of words that are amenable to misinterpretation and exploitation. They certainly are not necessary to achieve the purposes of this particular part of the Bill. I therefore regard them as prime candidates for omission.
The same problems do not arise with the words in the other two paragraphs. I believe that it is very sensible to place a duty on the federation to maintain high standards of conduct and transparency. Everyone understands what those words mean. More importantly, I believe that they are quite sufficient by themselves to achieve the Government’s aims for the federation. In fact, they are probably more than enough.
All of us who take an interest in policing know very well why the previous Home Secretary felt moved to introduce these words into the Bill. I for one strongly supported her doing so. But the words “protect the public interest” are quite different. The federation is at bottom a staff association and its job is to represent its members. It is clearly in the public interest that it should do so effectively—that is why it was established. And it is clearly in its own interest that it should act, as Sir David Normington said, to maintain exemplary standards of conduct, integrity and professionalism and to retain public confidence.
To require the federation to act to “protect the public interest” is quite another matter. I fear that these words are tantamount to giving the federation a licence to interfere in policing matters well beyond its expertise. For example, I see the federation deciding that it is in the public interest that it should monitor and make recommendations on the type of equipment and systems which police forces purchase and deploy; on the leadership qualities of candidates for chief constable rank and other operational matters; or on issues of police governance such as the size and composition of police and crime panels.
Of course, individual members of the federation will have views on all these matters and on many more besides. But what we would be doing by including the words “support the public interest” in this Bill is to give the leaders of the federation grounds for spending their money on studying these matters and publicly advocating for changes in them. Indeed, I believe that these words would permit the federation to extend its remit almost indefinitely and to employ clever, rapacious lawyers to justify this on the grounds that it has a statutory duty to protect the public interest.
The federation has more than enough on its plate in carrying out its core mission. Placing on the federation a duty to “support the public interest” may sound good, as the noble Baroness, Lady Henig, said, but it does not pass the test of being essential to the purposes of the Bill. In fact, I believe that it falls squarely into the category of words which could come back to bite the Government in very unpleasant ways.
That is why I strongly support this amendment and urge the Minister to agree with me that omitting these four words would in no way weaken the motivation of the federation to operate in the public interest but would minimise the opportunity for it to make trouble for itself and others in due course.
Lord Paddick
My Lords, my noble friend Lady Hamwee and I have given notice of our intention to oppose the proposition that Clause 48 stand part. The reason is that all officers of the federation hold public office. They are therefore all subject to the Nolan principles—the seven principles of public life. Can the Minister explain what is to be added by the clause, over and above the Nolan principles?
Lord Rosser
I will briefly make two points. I have a great deal of sympathy with the amendment that has been moved by my noble friend Lady Henig. I do not necessarily share the interpretation of the words “protect the public interest” that the noble Lord, Lord Wasserman, attached to them. I think that probably, under some of its other responsibilities to its members, the Police Federation would be entitled to pursue at least some of the issues to which he made reference.
Do the Government interpret this wording of “protect the public interest” to mean that the federation must put the interests of the public before the interests of the members of the police forces it is there to represent? Secondly, does this wording mean that legal proceedings or some other action can be taken against the Police Federation by someone who believes that it has not protected the public interest? If so, who can take such legal proceedings or such other action?
Baroness Williams of Trafford
My Lords, I thank the noble Baroness, Lady Henig, for her explanation of this amendment to Clause 48, which amends the 1996 Act to require the Police Federation, in fulfilling its core purpose, to protect the public interest and maintain high standards of conduct and of transparency —as the noble Baroness said. There was a discussion the other day about what the public interest is. I understood that, in a different context, it was not what the public were interested in but something quite different.
In the spring of 2013, the Police Federation commissioned a review to consider whether any changes were required to its operation or structure to ensure that it continued to promote the public good as well as the interests and welfare of its members. The panel’s final report, Police Federation Independent Review, known widely as the Normington review, was published in January 2014 and made 36 recommendations to improve trust, accountability, professionalism and member services. Recommendation 1 was the adoption of a revised core purpose that reflects the Police Federation’s commitment to act in the public interest. The Police Federation accepted the review’s recommendations in their entirety and has already publicly adopted a revised core purpose on a non-statutory basis. The Normington review was clear that a reformed federation would act in the interests of both its members and the public.
Clause 48 focuses on how the Police Federation discharges its representative role—namely by considering the public interest in its actions, in the same way that the police uphold the public interest in all their actions, whether that is fighting crime on the front line or representing colleagues as a member of the federation. The clause does not conflict with the Police Federation’s representative purpose and will not, for example, require it to act against the interests of its members. The ambition here is to ensure that the federation does not operate against the public interest. Indeed, the Police Federation itself, acting in line with the recommendations of Sir David Normington and his review, asked the Government to enshrine its revised core purposes in legislation. That is exactly what this clause achieves.
Sadly, as the Normington review highlighted, a culture of “narrow self-interest” has permeated the federation in recent years—one of “distrust and division”, as he described it. The Government wish to support the federation in proving that it can serve its members and respect the public interest in providing a representative voice for police officers, with professionalism and integrity.
The noble Lord, Lord Rosser, made a point about changing the purpose of the Police Federation as set out in the Police Act 1996. Clause 48, as worded, is clear that the federation must protect the public interest and maintain high standards of conduct and transparency in fulfilling that purpose. The Police Act 1996 sets out what the federation should do and Clause 48 sets out how it must deliver that.
The noble Lord also asked what happens when the public interest and the interests of the police diverge. The Normington review was clear that a reformed federation would act in the interests of both its members and the public. Section 59 of the Police Act 1996 provides that the purpose of the Police Federation is to represent members of the police forces in England and Wales in all matters affecting their welfare and efficiency.
Could the federation be challenged in the courts? It could, on the basis that it was not fulfilling its purpose as set out in Section 9(1) of the Police Act 1996 in a way that protected the public interest, but it may already be challenged on the basis that it was not fulfilling its existing purpose.
I hope I have provided some explanation and that the noble Baroness will feel able to withdraw her amendment.
Lord Paddick
I do not think the Minister answered my question about what the clause adds over and above what is within the Nolan principles.
Baroness Williams of Trafford
The Nolan principles underpin every single aspect of involvement in public life. Obviously, this is specific to the police in a certain context, but I think the two should go hand in hand. Obviously, there are different aspects to the police compared with other public professions, but anyone who is in public office needs to sign up to the Nolan principles. This is an aspect that applies to the police.
Baroness Henig
I thank all noble Lords who have spoken at this late hour. Although it is late, this is an important debate. I listened very carefully to the Minister but she did not actually answer the question. She did not tell the Committee what the words actually mean. I have to say again that if it is not clear what a phrase means, it is not going to be good law and it is going to lead to an awful lot of disagreement in years to come. If four lawyers in a room cannot agree what “protect the public interest” means, that is a recipe for problems. The Minister did not explain what it meant. There was a lot of vagueness and phraseology but nothing clear or precise.
Obviously, at this point in the evening I will withdraw the amendment but I want to think about this a bit more. Some of us might want to return to this at a later stage because it really is not in the public interest to put something in a Bill the meaning of which people cannot agree on. That cannot be a good thing to do. But at this stage, I beg leave to withdraw the amendment.
Policing and Crime Bill
Wednesday 2nd November 2016
(9 years, 6 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 55-III(a) Amendments for Committee, supplementary to the third marshalled list (PDF, 64KB) - (1 Nov 2016)
Lord Kennedy of Southwark
Lord Kennedy of Southwark (Lab)
My Lords, on behalf of my noble friend Lady Henig I wish to move the amendment tabled in her name and that of the noble Baroness, Lady Harris of Richmond. Clause 51 concerns pre-charge bail and the powers for someone to be released who has been arrested other than at a police station. Amendments 180 and 182 are practical and proportionate and support policing based on greater practitioner autonomy and expertise, which we believe falls in line with the empowerment drive by the Home Office and the College of Policing. Both amendments would reduce the level of the decision-making process from the rank of inspector to sergeant.
Police custody sergeants are well-trained practitioners who have responsibility for the care and treatment of suspects on a 24-hour basis. They make key decisions in line with PACE and other codes of practice. They have the necessary expertise to be able to adjust for a suspect to be released without bail and to apply conditions only where absolutely necessary and proportionate to protect the suspect, victim, witnesses and the wider public.
Amendment 184 concerns the rank of senior officers who can confirm that an investigation either by the SFO or FCA is under way and the applicable bail period. The amendment reduces the rank required of those who can be authorised with these powers from superintendent to inspector. The rank of inspector is a management rank and officers at this level would already be involved in exercising authorising powers and balancing the needs of the suspect. Officers holding this rank are numerous in the police service and are on duty on a 24-hour basis. It should also be noted that there has been a reduction in the number of officers holding the rank of superintendent, with a fall of 28% since 2010.
Officers with the rank of superintendent can take responsibility for any pre-charge reviews beyond the first review and oversee the application process for magistrates’ courts. They can also review any decision made by an inspector that is challenged by a suspect or their legal representative.
This group of amendments seeks to set out powers and responsibilities that are commensurate with the rank held and the practicalities of what is needed in particular situations. I beg to move.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, as we discussed at Second Reading, the purpose of the Government’s reforms to pre-charge bail is to end up with fewer people on bail for shorter periods of time. Part of the way we will do that is to raise the initial decision to impose bail from the custody officer who currently makes that decision—a sergeant—and to require an inspector to make it. At present, the College of Policing’s guidance suggests that an inspector should make a decision to extend bail beyond the initial period. The Bill would instead require a superintendent to make that decision.
The clear implication of these amendments is that the authorisation for pre-charge bail that the Government seek to set is too high, and that instead the current levels are in fact adequate and appropriate. As my right honourable friend the Prime Minister said when she described these reforms as Home Secretary at Second Reading in the House of Commons,
“it is apparent that a significant number of individuals have spent an inordinate amount of time on bail only to end up not being charged or, if charged, found not guilty. Of course, the police and prosecution need time to assemble and test the evidence, particularly in complex cases, before coming to a charging decision, but we need to recognise the stress caused when people are under investigation for prolonged periods, and the disruption to their lives where they are subject to onerous bail conditions … To address the legitimate concerns that have been raised about the current arrangements, the Bill introduces a number of safeguards”.—[Official Report, Commons, 7/3/16; col. 45.]
As well as setting clear times for the review of pre-charge bail, which we will debate shortly, the increased levels of accountability set out in the Bill, which these amendments seek to reverse, are an important safeguard against the misuse of pre-charge bail. The measures in the Bill significantly enhance the human rights protections for those accused of an offence, including setting a presumption that release pre-charge should be without bail and that bail should be considered regularly by the police—and after three months, by the courts—to ensure that bail is necessary and proportionate and that the investigation is progressed with appropriate speed and urgency.
In proposing these amendments, the noble Baroness, Lady Harris, and the noble Lord, Lord Kennedy, on her behalf suggest that requiring the involvement of inspectors and superintendents is disproportionate, and that there is insufficient capacity within police forces for these officers to carry out their existing duties and to make the bail authorisation decisions required by the Bill. We do not consider that the evidence supports this argument.
Lord Kennedy of Southwark
My Lords, I thank the Minister for her response to this short debate. Neither my noble friend Lady Henig nor the noble Baroness, Lady Harris of Richmond, were able to be here today, so I was happy to propose the amendments on their behalf. I will reflect on the points made, read the debate and talk to my noble friend. I am happy to withdraw the amendment at this stage, but my noble friend may want to return to it on Report.
Lord Marlesford
“Lack of evidence to charge
In section 37 of the Police and Criminal Evidence Act 1984 (duties of custody officer before charge), after subsection (6) insert—“(6A) If a person is—(a) released without being charged under subsection (2), or(b) informed, after being questioned under caution, that no further action will be taken against the person,the custody officer shall, as soon as is reasonably practicable, write to the person to inform him that he has been released, or that no further action has been taken against him, on the grounds that there is a lack of evidence to charge him.(6B) In the letter referred to in subsection (6A), and any other written record of the decision to release the person without charge under subsection (2) or to take no further action against the person, the custody officer must use the words “lack of evidence” to describe the grounds on which the decision to release the person, or to take no further action against the person, was taken.””
Lord Marlesford (Con)
My Lords, Amendment 181 seeks to right, or at least to mitigate, what I see as a wrong. In recent months, we have on many days heard, read or seen reports of individuals being investigated for crimes, particularly sex crimes. There is huge publicity, especially when one of those persons is already a public figure, which must be agony for those concerned.
Sometimes the investigation leads to prosecution and conviction, and then any sympathy one might have had is likely to evaporate or at least diminish. But sometimes it leads to an announcement by the police that there will be no prosecution, and that may be after many months. The phrase used to explain the decision is “insufficient evidence”. That is a most tendentious phrase. It implies “no smoke without fire” and is rather similar to the old Scottish “not proven” verdict.
The decision to investigate allegations must always be made by the police, but sometimes investigations come to nothing. There can then be a long period, perhaps a very long period, of waiting, and then there is the announcement of “insufficient evidence”. The essence of our system of justice is that criminal cases are tried on the facts, with a jury, with a verdict either of guilty or not guilty. That is how it should be. It is not a matter of mere semantics to object to the phrase which I have quoted. That is why I seek to change the wording in circumstances where the decision is made that there is not the evidence to prosecute from “insufficient evidence” to the much more neutral phrase “lack of evidence”. I beg to move.
Viscount Hailsham (Con)
My Lords, I support what my noble friend Lord Marlesford has said. He has identified something that has gone seriously wrong in recent years. The phrase “insufficient evidence” suggests the existence of some evidence. In some instances that will, of course, be right, but in other cases it will not be right—for example, in recent cases which will, doubtless, be in your Lordships’ minds. My noble friend has put forward a phrase which ought to be acceptable to the Government, but if it is not—and I am no wordsmith—perhaps I might suggest some alternatives. It would be proper to say, for example, “wrong to commence criminal proceedings” or “criminal proceedings are not justified”. Other phrases may occur to your Lordships.
What we must not do is to allow the police to come forward with a reason which implies the existence of a fire unsupported by sufficient smoke. That is not a fair state of affairs. My noble friend on the Front Bench may say that this is not a matter for statute. If the Committee is of that view, then advice could be given by ACPO to its members, but I think my noble friend has identified a real point which I hope your Lordships will support, by argument and debate.
Lord Dear (CB)
My Lords, I support what both noble Lords have said, the noble Lord, Lord Marlesford, in particular. I am sure I am right in saying that there is a growing sense of disquiet throughout society, which has swung away from the rampant interest that one saw in recent years in pursuing sex offenders, in particular—the Jimmy Savile case comes to mind immediately—towards beginning to say, “Wait a minute, it has gone too far”. I believe that it has gone too far. We live in a world where reputations can be traduced almost within seconds, given the spread of social media—I think the phrase now used is “going viral”. That can happen and, worldwide, a reputation is in tatters in a way that was not at risk of happening before.
One has only to look at Members of this House, never mind anyone outside—and outside is in many ways more important than our own membership of your Lordships’ House. Lord Bramall comes to mind. The son of the noble and right reverend Lord, Lord Carey, has recently been in the newspapers for reasons I found totally disquieting. So have Sir Cliff Richard, Lord Brittan, Sir Edward Heath and Bishop Bell, who has been the subject of many of our debates recently. I will not take up your Lordships’ time except to say that I support what is being said. Whether we should do it by advice, as has recently been said, I do not know, but the Government should take note of this growing tide of disquiet at what is going on. I hesitate to say, and I am sad to say, that the police are front runners in causing this situation. Something should be done and this amendment is a step in that direction. I support it.
Lord Paddick (LD)
My Lords, I support the noble Lord, Lord Marlesford. I might go a little further than the noble Viscount, Lord Hailsham, and say that “lack of evidence” is probably exactly the phrase that should be used and it should be made compulsory. Saying that there is a lack of evidence could quite easily mean a complete lack of credible evidence, whereas “insufficient evidence” could imply that there was some credible evidence in cases where there was none. “Lack of evidence” is exactly the right phrase and I look forward to the Minister’s response as to how this can be made compulsory.
Baroness Boothroyd (CB)
My Lords, I support this very splendid amendment that has been moved by the noble Lord, Lord Marlesford, and spoken to by your Lordships warmly and welcomingly. In many cases, the people we are speaking about here—and I say this in front of many people here who have given great service to the police—have been harassed by the police. On many occasions, they have been pilloried by the press. We were just talking about the press in an earlier debate. Often they do not spoil a good story with the facts. The relations of persons who have been questioned under caution with their immediate relationships have been spoiled and bruised. Their relationships with friends have been harmed. At the end of the day they deserve to be more precisely dealt with. We need precise wording here and more direction—they deserve nothing less. I like the wording of “lack of evidence” and I ask the Minister to either accept this or look at it again, and I say to the noble Lord, Lord Marlesford, that if he puts this to the House for a decision I shall be in the Lobby in support of him.
Lord Campbell of Pittenweem (LD)
My Lords, there is a serious risk of agreement breaking out. I will make one point, if I may, as the only Scottish lawyer, I think, in the Committee. It is important to remember that the verdict of not proven occurs after trial and trial takes place only if there is a reasonable prospect of conviction and, of course, it is in the public interest. So the standard is slightly different but that does not in any way undermine my support for what the noble Lord, Lord Marlesford, said. There is absolutely no doubt that inferences can be drawn from “insufficient evidence”. Indeed, the way in which the language is sometimes placed in a paragraph or a sentence goes a long way to suggesting that that may have been the conclusion of the prosecuting authorities but the police may feel rather differently. From that point of view, it seems to me that “lack of evidence” provides a pithy and succinct way of dealing with an issue that is all too common, particularly in relation to public figures.
Lord Wilson of Tillyorn (CB)
My Lords, I have not spoken before on this Bill but I will speak very briefly in support of the amendment moved by the noble Lord, Lord Marlesford. There is no need to name names. All of us in your Lordships’ House know of people who have been mistreated over the past months in the way that their cases have been dealt with and summed up by the police. The reputations of some very distinguished people have been damaged as a result. If those people have been treated in that way, there must be many others who have been treated similarly.
I confess to some doubts about whether legislation is the right way to deal with this. It seems a very large sledgehammer for what should be a small nut but it has been a terribly resistant nut and perhaps we have to use legislation. One would have thought that something like Standing Orders would be sufficient. But if this amendment is put to your Lordships’ House, I would support it.
Lord Elystan-Morgan (CB)
My Lords, I feel very privileged to add my humble voice to the very distinguished voices that have already spoken on this matter. Many, many years ago, in what was then the old Wales and Chester Circuit, a verdict was returned by a jury in south Wales: “just a little bit guilty”. That was in a trial so not dealing with exactly the same issue that is now before the Committee. We must be very careful not to have a wording that suggests that there may be just a little bit of evidence and no more. I am not exactly sure how that should be worded but I am sure that it is not beyond the wit of draftsmen to bring it about. Whether it should be by way of statute or some administrative provision, I leave to the good judgment of those concerned.
Lord Inglewood (Con)
My Lords, I intervene briefly to say that I, too, support the principle behind my noble friend Lord Marlesford’s amendment. It seems to me that if the principle is that you should be innocent until proved guilty, you should be proved guilty on the evidence and not by innuendo.
Lord Kennedy of Southwark
My Lords, Amendment 181 in the name of the noble Lord, Lord Marlesford, would insert a new clause into the Bill concerning the procedures to be followed where a suspect is released without charge or informed after being questioned under caution that no further action will be taken against them. In considering the noble Lord’s amendment, I wanted to listen carefully to his reasoning for this proposed new clause, and I think that he has made a compelling case today. The noble Lords, Lord Dear and Lord Paddick, have extensive experience as senior police officers and the House should also take note of their support. I am not sure whether this should be addressed through an amendment to the Bill—I accept that point. There may be some other mechanism to address it, but the noble Lord, Lord Marlesford, has made a compelling case and I thank him for that.
Baroness Williams of Trafford
My Lords, Amendment 181, tabled by my noble friend Lord Marlesford would require a custody officer to do two things once a decision has been made that no further action is to be taken against a suspect because the test for mounting a prosecution, set out in the Code for Crown Prosecutors, has not been met. First, the custody officer would need to notify the person in writing that no further action is to be taken. Secondly, the written notice must use the phrase “lack of evidence” to describe the reasoning behind the decision.
The Government agree with my noble friend that written notification should be given in all cases. We consulted on this in late 2014 and Clauses 65 and 66 would require a written notification to be given to any person arrested on suspicion of a criminal offence, where the police or Crown Prosecution Service subsequently decide not to charge. This applies whether or not the person is on bail following the reforms set out in Part 4 of the Bill. My noble friend’s amendment would go one stage further and require the written notification of no further action in those cases where a person is interviewed under caution on suspicion of an offence but not arrested. We know from anecdotal evidence that, since the amendment of PACE Code G in 2012, more cases are being dealt with by the police without arresting the suspect, which may have created a gap in police practice that my noble friend’s amendment identifies. In order to give this issue appropriate consideration, I would like to take it away and consider it further before Report.
The second limb of my noble friend’s amendment would require that the written notice and any other record used the phrase “lack of evidence”, rather than the customary “insufficient evidence” used at present. It may assist the Committee if I remind noble Lords of the evidential test required by the Code for Crown Prosecutors. Paragraph 4.4 of the code states:
“Prosecutors must be satisfied that there is sufficient evidence to provide a realistic prospect of conviction against each suspect on each charge. They must consider what the defence case may be, and how it is likely to affect the prospects of conviction. A case which does not pass the evidential stage must not proceed, no matter how serious or sensitive it may be”.
The absence of “sufficient evidence to provide a realistic prospect of conviction” could easily be characterised as a “lack of evidence” or as the presence of “insufficient evidence”. We could debate for some time the precise difference between the two phrases, which must be very small.
Noble Lords have said that there has been some comment in the media, in the light of recent high-profile cases, that the dropping of cases due to “insufficient evidence” could leave an outside observer thinking that there must have been something there. This reflects the reality of policing: that there has to be sufficient evidence to justify an arrest—that is, reasonable grounds to suspect that an offence has been committed. However, the investigative process in such cases will often end up with insufficient evidence, or, to use my noble friend’s phrase, a “lack of evidence”, that could still mean there was some evidence, but not sufficient to charge.
The Code for Crown Prosecutors is issued by the Director of Public Prosecutions under Section 10 of the Prosecution of Offences Act 1985. The current version, dating from January 2013, is the seventh edition of the code, and every version since 1986 has stated essentially the same requirement for,
“sufficient evidence to provide a realistic prospect of conviction”.
I say to my noble friend and other noble Lords that “insufficient evidence” seems to reflect the wording of the code test rather better and that it is the opinion of the Crown Prosecution Service that the current phrasing has been used for more than 30 years and works well in practice.
While I recognise that the amendment would not change the test itself, to change the way that decisions made under the code are communicated, even to the small degree proposed by my noble friend, could create confusion, as there would be a tendency to ask which test should now be applied and whether it means the same thing. It could also invite doubt in the minds of prosecutors, judges, defence lawyers and others as to the reliability of decisions made against different tests.
I also point out to noble Lords that there are two tests in the Code for Crown Prosecutors that must be met before charges are brought. It is perfectly possible for there to be sufficient evidence to meet the first test, but for it none the less to be contrary to the public interest to charge, for example, where a case is to be disposed of out of court by way of a conditional caution.
While Clauses 65 and 66 set a requirement to notify a suspect that they will not be charged, that notice would need to be given in both scenarios; that is, where there was insufficient evidence and where the evidence was sufficient but charges were not in the public interest. However, under my noble friend’s amendment, a suspect would need to be told in all cases that they were not being charged due to a lack of evidence, even though there must be sufficient evidence to charge to get to the point of considering the public interest test.
I can say to my noble friend that the Government are sympathetic to his aim of giving greater certainty to those who are investigated but against whom charges are not brought. We are minded to achieve this by non-statutory means so that prosecutors retain the necessary flexibility in cases where a decision is taken on public interest grounds.
On the issue of written notification of a decision not to charge, the Government consider that Clauses 65 and 66 already require such notification in all cases where an arrest has taken place. However, I would like to give further consideration to the issue of those interviewed under caution without being arrested. I hope that my noble friend will recognise that the precise wording of that notification is an issue best dealt with by non-statutory means and that, having heard my statement, he will be content to withdraw his amendment.
Lord Marlesford
My Lords, I am most grateful to all noble Lords who have contributed with knowledge and experience far greater than mine. I was very gratified that there was so much support for what I had to say. I thank the Minister for what she said. She has gone a long way to accepting what I intend. I am happy to leave it to her to come back to us and tell us exactly what it is proposed to do.
The rather Socratic justification which she gave for the terminology is okay in esoteric circles, but we are concerned with what the people as a whole see, and we are back to the old cliché that justice must be seen to be done. When she says that the difference between my phrase and “insufficient evidence” is very small, I remind her that it was said that at one moment Christendom was divided by an iota.
Having said all that, I am most grateful to my noble friend for her sympathetic approach to what I have said, and I beg leave to withdraw my amendment.
Lord Paddick
Lord Paddick
My Lords, in moving Amendment 183, which is in my name and that of my noble friend Lady Harris of Richmond, I will speak to the other amendments in the group, Amendments 186 and 187. My noble friend is unable to be in her place this afternoon.
Amendment 183 seeks to make the initial period beyond which police bail under Section 30A of the Police and Criminal Evidence Act 1984 must then be authorised by a superintendent 56 days instead of 28, as proposed in the Bill. The impact assessment published by the Government on 26 May 2016 alongside the Bill indicates that the 28-day limit is a reasonable one and that the impact on police resources would not be arduous. However, academic research carried out by Professor Anthea Hucklesby of the School of Law at the University of Leeds suggests that an initial limit of 60 days would be necessary to avoid considerable adverse impact on the police service.
That research forms the basis of an article by Professor Michael Zander, the acknowledged expert on the Police and Criminal Evidence Act, in vol. 180 of Criminal Law and Justice Weekly entitled, “Not a Good Idea to Ignore the Evidence”. I have spoken to Professor Zander about this issue. In the article, he agrees with Professor Hucklesby’s conclusion that:
“A time-limit of 60 days would be proportionate for both suspects and the police. This would allow cases involving routine forensic analysis, which officers in my study consistently reported took an average of six weeks, to be completed”.
Professor Zander goes on to say that the Home Office has had this research for “over a year” and that the findings,
“have now been confirmed by the College of Policing’s bail report, Pre-charge Bail—an Exploratory Study, September 2016”.
My noble friend Lady Harris of Richmond tells me that the Police Superintendents’ Association of England and Wales believes that the 28-day limit could have a considerable detrimental effect on the impact of impending changes on inspectors, superintendents and magistrates’ courts.
I do not wish to detain the Committee with the detailed reasoning behind the conclusions of the academics, the College of Policing and the Police Superintendents’ Association. Suffice to say, we have no doubt excellent number-crunchers in the Home Office on the one hand saying the 28-day limit is doable, and the rest of the world on the other hand claiming that it is not. Of course we support limits on police bail, and we generally welcome the provisions in the Bill in this respect, for the reasons the Minister outlined in response to the first group of amendments. But can the Minister explain how the academics and the practitioners are lined up against the Government on the initial time limit? Amendments 186 and 187 are consequential on the main amendment. I beg to move.
Lord Kennedy of Southwark
My Lords, Amendment 183, moved by the noble Lord, Lord Paddick, and also in the name of the noble Baroness, Lady Harris of Richmond, would delete “28” and insert “56”, which would increase the period of pre-trial bail from 28 to 56 days. I think we all agree that bail at any point should be as short as possible, although the point that the noble Lord made needs to be considered carefully by your Lordships’ Committee. There seems little point in bringing people back to the police station, only for them to be rebailed because other work has not actually happened. People may be waiting for forensics or other things to be done, so the noble Lord has a good point. If Professor Zander and other academics suggest that this will not be effective, I hope that when the Minister responds she can answer that point. It seems pointless to bring people back just to be sent away again, given the cost of the bureaucracy for the police, the solicitors and the suspect. If she can respond to the points made, that would be very helpful.
Baroness Williams of Trafford
My Lords, this group of amendments would greatly reduce the effect of the Government’s reforms to pre-charge bail by increasing the length of the initial period of bail from 28 to 56 days. As I have said, the purpose of these reforms is to end up with fewer people on bail for shorter periods of time, and thereby significantly enhance the human rights protections of those who have not even been charged with an offence, let alone convicted. As such, requiring each and every person granted bail to be given bail for eight whole weeks would significantly dilute the reforms—reforms that the Liberal Democrats supported strongly when they were proposed by the coalition Government.
The noble Lord said that the intention behind these amendments is to reduce the administrative burden on the police in operating the reformed pre-charge bail system. Although I do not deny that the new system will cause additional work for the police compared to the current position, this is inevitable given that we are reforming a system currently lacking appropriate safeguards. I would also say that the Government do not look at the extra work required as an administrative burden; we see it as requiring an appropriate level of intrusive supervision to ensure that pre-charge bail is used appropriately and that investigations are progressed diligently and swiftly. That goes to the point made by the noble Lord, Lord Kennedy, about people having to return time and again to police stations.
I would also say that the figure of 28 days set out in the Bill was not arrived at by chance; we considered carefully the initial period of bail in drawing up our proposals, seeking to balance the administrative burden on the police with the need to put an end to the practice of people being bailed for months or even years at a time with no external scrutiny.
When we consulted publicly in December 2014 on the proposals, with the full agreement of the Liberal Democrats, who formed part of the coalition Government at the time, we received some 300 responses, two-thirds of which favoured the tightening of pre-charge bail and introduction of judicial oversight. Of the 135 respondents who expressed a preference, 58% favoured the model set out in the Bill, with an initial bail period of 28 days, extendable to three months by a senior officer. There was also strong support for an initial bail period of 28 days from groups as disparate as the Society of Editors, the Birmingham Law Society and the Magistrates’ Association. The Committee might also be interested to know that the Howard League for Penal Reform, a well-respected group of campaigners in this area, argued that pre-charge bail should be limited to a single period of 14 days without conditions.
I also draw the Committee’s attention to the bail principles published by the College of Policing in October 2013, which stated that:
“In the first instance, unless there are exceptional circumstances, the bail period should be no more than 28 days”.
With the greatest respect to the noble Lord, there is clearly backing for the human rights improvements that would be brought about by a 28-day initial bail period from across the spectrum of public and professional opinion.
I also point out that, as set out in the impact assessment accompanying the Bill, almost one-third of bail cases—29%—are currently resolved within 28 days. We cannot therefore see how it would be either sensible or appropriate in those cases for the police to have a choice of either keeping those individuals on bail for a further four weeks or having to issue paperwork to terminate suspects’ bail and call them in for charging.
I also draw the Committee’s attention to the other major change these reforms will make: that there will be a presumption in favour of release without bail, with bail being used only where it is both necessary and proportionate. This change in particular will allow the police to release many suspects without the administrative overhead that bail entails. It would also remove much of the stigma and inconvenience of bail from those released in this way. Because of this change, the police resources tied up administering straightforward cases will be freed up to concentrate on those cases where bail is truly necessary.
I have set out why the Government consider that the 28-day initial bail period is an appropriate first period, during which a significant proportion of cases will be resolved. The Government consider it crucial that the unfairness of keeping a person under investigation in “legal limbo” is addressed, as it cannot be right that they can spend months or even years on pre-charge bail with no judicial oversight, as happens at present.
As set out in the coalition Government’s response to the consultation, published in March 2015, the negative effects for individuals on bail and their families include emotional or mental trauma and financial implications. I also draw to your Lordships’ attention to the fact that, at the end of the coalition, in their 2015 general election manifesto, the Liberal Democrats included a proposal to place limits on the duration and conditions of pre-charge bail. Therefore, it strikes me as odd to hear the noble Lord, Lord Paddick, asking to extend the initial bail period from 28 to 56 days. I recognise his laudable aim to reduce the administrative burden on the police, but extending the initial period to 56 days will, as I have said, either leave a large number of suspects on bail for no reason or require the police to do further work to call them in. For that reason, I ask the noble Lord to withdraw his amendment.
Lord Kennedy of Southwark
Before the noble Baroness sits down, can she comment on some of the academic research around this, which both I and the noble Lord, Lord Paddick, referred to? I think that we are all in agreement that no one wants anybody to go on bail for a day longer than absolutely necessary but it seems a bit odd that, if all the services that the police need to investigate their cases are taking more than 28 days—maybe up to six weeks—we have bail for 28 days. They could bring people back into the police station just to send them away again because the necessary information is not available.
Baroness Williams of Trafford
I draw the noble Lord’s attention to the comments that I made about the presumption against pre-charge bail, which I think is compelling in the Government’s attempt to reform the system. There will be presumption in favour of release without bail—in other words, do not bail someone unless there is a good reason to put them on bail, which in many ways would free up the system. Bail should be used only where it is both necessary and proportionate. The fact that almost one-third of people are released within 28 days anyway is, I think, compelling evidence for the arguments that the Government are making.
Lord Paddick
My Lords, I am very grateful for the support of the noble Lord, Lord Kennedy of Southwark, on this matter. As he just said, there is agreement on all sides that we need to protect the human rights of those people arrested and bailed by the police. But there needs to be a balance between the protection of human rights and the practical impact on the police, particularly in the light of the significant cuts in police numbers, the even greater cuts in the number of detectives, who would be mainly involved in investigating these matters—and trying to do so within a 28-day limit—and the reduction in the number of police superintendents, who would have to authorise a further extension. The noble Baroness said that 28 days was not arrived at by chance and that people should not be on bail for years. The amendment suggests 56 days, not years. It is just a proportionate increase to the maximum limit proposed in the Bill.
It is unfortunate that the noble Baroness appears to be trying to argue this on party lines, talking about what the Liberal Democrats did in coalition. Unlike other political parties, the Liberal Democrats like to base their decisions and legislation on the evidence. The evidence from academics that I put forward, which the noble Baroness has not addressed, points in the opposite direction to the Home Office impact assessment. The noble Baroness failed to answer when I asked why there was a difference between the Government’s view and the findings of academic research and representations from the Superintendents’ Association. She quoted from a 2013 College of Policing report. I quoted from a 2016 College of Policing report, which Professor Zander said backs up Professor Hucklesby’s conclusion that 60 days is a far more appropriate period and strikes the right balance between the human rights of those bailed and the practical issues facing the police. Clearly, we will return to this at other stages on the Bill but, at this stage, I beg leave to withdraw the amendment.
Lord Kennedy of Southwark
“Scrutiny of investigatory capabilities
(1) Police and crime plans produced under Chapter 3 of Part 1 of the Police Reform and Social Responsibility Act 2011 must include an annual assessment of the capability of the police to investigate crimes within the 28-day pre-charge bail time limit.(2) The assessment must consider any—(a) changes to the number of suspects released without bail,(b) resource constraints, including in respect of the number of staff,(c) safeguarding requirements of victims, witnesses and suspects, and(d) issues around multiagency work.”
Lord Kennedy of Southwark
My Lords, Amendment 187A is very opportune and I hope that the Government will be pleased to see it. It stands in my name and that of my noble friend Lord Rosser and would insert a new clause in the Bill with regard to pre-charge bail. The new clause would place a requirement on police and crime plans to include an annual assessment of the capability of the police to investigate crimes within the 28-day period. Proposed new subsection (2) in the amendment states that the assessment must consider the points as listed, which are,
“changes to the number of suspects released without bail … resource constraints … safeguarding requirements … and … issues around multi agency work”.
This list is not exhaustive but all these sorts of things could come into play if the police were able to deal with people on bail within the 28-day period. An annual assessment is a valuable tool in helping to ensure that targets are met and in identifying problems.
The second amendment in this group would give a power to the Secretary of State to make by regulation a requirement for agencies,
“to cooperate promptly with police”.
As we said in a previous debate, in seeking to meet the 28-day target, the police need to be confident that other agencies are working to deliver information to them. The amendment would give the Secretary of State the power to require agencies by regulation to assist the police within the 28-day limit. I beg to move.
Baroness Williams of Trafford
My Lords, as the noble Lord, Lord Kennedy, has explained, these amendments seek to test the ability of police forces to complete investigations within the initial 28-day pre-charge bail time limit.
Amendment 187ZA would require police and crime commissioners to make an annual assessment of their force’s capability of investigating crimes within this initial pre-charge bail time limit. The Government consider that requiring such an annual assessment will only add an unnecessary bureaucratic burden on PCCs and forces. First, the Police Reform and Social Responsibility Act 2011 requires PCCs to produce new police and crime plans only in the year of an election, so the amendment does not build on an existing process; it requires PCCs to produce something entirely new.
The Government acknowledge that the reforms to pre-charge bail will create a new system and that forces will need to build capacity at first and incorporate changes within their business processes. However, the changes will encourage and enable police forces to resolve cases within a time limit, resulting in a more efficient system for the long term.
Although bail will be limited initially to a period of 28 days, it is important to remember that the Bill’s provisions will enable an extension to a total of three months, which can be authorised by a senior police officer in complex cases. Furthermore, the police will also be able to apply to the courts for an extension beyond three months, which will have to be approved by a magistrate. While the police will, of course, aim to resolve cases in fewer than 28 days, they will be able to extend the bail period where it is necessary to do so. The requirement for senior scrutiny of extensions will avoid the issue of the past, where bail has been extended for months, or even years, without scrutiny outside the investigation team.
Lord Kennedy of Southwark
Before the noble Baroness sits down, in her response to Amendment 187ZA she talked about external scrutiny of the police. Can she say a bit more about that? Is she saying that she expects that external scrutiny to look specifically at the issues here in a broad-brush review? If so, where will they get the data from? I assume that they will be collected by the police.
Baroness Williams of Trafford
My Lords, there will be a number of sources of data within the police, and the annual monitoring by HMIC’s PEEL inspection programme, which considers all the police’s effectiveness, efficiency and legitimacy, will form part of that external scrutiny.
Lord Kennedy of Southwark
The noble Baroness can check this and come back to me, but I would expect then that the data would actually be collected.
Baroness Williams of Trafford
As the noble Lord says, I will go away and give him more detail on that, either before Report or on Report.
Lord Kennedy of Southwark
I thank the noble Baroness for that response, and at this time I am happy to withdraw the amendment.
“( ) Where an offence under this section is committed by a person released without charge and on bail under Part 4 of the Police and Criminal Evidence Act 1984, the offence is to be treated as having been committed in England and Wales (whether or not the conduct constituting the offence took place there).( ) Where an offence under this section is committed by a person released without charge and on bail under Part 5 of the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I. 1989/1341 (N.I.12)), the offence is to be treated as having been committed in Northern Ireland (whether or not the conduct constituting the offence took place there).”
Baroness Chisholm of Owlpen (Con)
My Lords, these amendments principally relate to the cross-border enforcement provisions in Chapter 7 of Part 4. Those provisions strengthen the existing cross-border powers of arrest contained in Part 10 of the Criminal Justice and Public Order Act 1994. In particular, these provisions close a gap in the cross-border arrest powers to ensure that a person who commits an offence in one UK jurisdiction can be arrested without a warrant by an officer from the jurisdiction in which the person is found. The provisions in new Section 137A of the 1994 Act include a number of safeguards, one of which is that the arresting officer has reasonable grounds for suspecting that the suspect has committed a specified offence in another jurisdiction—that is, an offence specified in regulations.
In the interests of greater clarity and to ensure that the police are able to exercise these powers as soon as possible after Royal Assent, Amendments 201B, 201C, 201G and 201T insert a list of “specified offences” in the 1994 Act, instead of setting out the offences in regulations. As a consequence of this new approach, Amendments 201D to 201F modify the regulation-making power in new Section 137B of the 1994 Act so that it becomes a power to add an offence to or remove an offence from the list of offences for the time being specified in new Schedule 7A to the 1994 Act. This revised power is necessary to ensure that the list of relevant offences can be kept up to date; for example, to take account of new offences being created or reductions in the maximum penalty for a specified offence such that it is no longer in the interests of justice for it to remain on the list. As befitting a Henry VIII power, the regulations continue to be subject to the affirmative procedure.
The list of relevant offences specified in new Schedule 7A to the 1994 Act includes that in Clause 67: namely, the offence of breach of pre-charge bail conditions relating to travel. The related Amendment 187A to that clause clarifies that if a travel-related breach of pre-charge bail conditions is committed anywhere in the United Kingdom, it will be regarded as having been committed in either England and Wales or Northern Ireland, depending on where the bail was granted. This will ensure that the breach can be prosecuted in the relevant UK courts and will also make sure that the cross-border powers set out in Clauses 105 to 107 are available to enforce the offence.
Amendments 201H to 201S relate to the rights of persons arrested under new Section 137A of the 1994 Act. New Section 137D of the 1994 Act applies certain existing statutory rights to persons arrested under the new power of arrest—for example, in respect of the information to be given to the arrestee—but includes a power to disapply or modify the specified enactments. Again, in the interests of greater clarity, new Schedule 7B to the 1994 Act, which is inserted by Amendment 201U, sets out the necessary modifications in the 1994 Act. As a consequence of this change of approach, the regulation-making power is retained but modified so that it becomes a power to add, remove, alter and disapply statutory rights. Amendment 233A makes a consequential change to the extent clause.
I trust noble Lords will agree that this revised approach will provide greater clarity as to how the new cross-border arrest powers will operate. I beg to move.
Baroness Hamwee
Baroness Hamwee (LD)
My Lords, I hope that this amendment can be dealt with very quickly. It takes us to the provisions for live links with people in detention and, in particular, the definition of a “vulnerable adult”. When I read the definition, I was unsure whether the phrase,
“may have difficulty understanding the purpose of an authorisation”,
extended to understanding its implications or outcome. It seemed to me that the word “understanding” was rather narrow.
I was asked yesterday by the Bill team whether I could explain what I was getting at. Once I had a look at the drafting, I realised that I had put the words in the wrong place, and I apologise to the Committee for that. However, I was assured that the wording in the Bill extends to understanding the implications or outcome of a decision, and I am moving the amendment simply in the hope that the Minister can confirm that from the Dispatch Box. I beg to move.
Baroness Williams of Trafford
I thank the noble Baroness for her comments. Amendment 188A would amend Clause 73 to alter the definition of a “vulnerable adult” in new Section 45ZA of the Police and Criminal Evidence Act 1984. That new section would enable a superintendent to authorise the extension of pre-charge detention using a live link, rather than being physically present in the police station. In the case of a vulnerable adult, consent to the use of a live link must be given in the presence of an appropriate adult, and the amendment seeks to alter the definition of a vulnerable adult for those purposes.
I understand that the noble Baroness is seeking an assurance that the definition provided for in the Bill would include a person who had difficulty understanding the implications or outcome of a decision by a superintendent to authorise the extension of pre-charge detention from 24 to 36 hours. I am happy to provide such an assurance and, on that basis, I hope that she will be happy to withdraw her amendment.
Baroness Walmsley
“(6) Subject to section 136A, in this section “place of safety” means residential accommodation provided by a local social services authority under Part III of the National Assistance Act 1948, a hospital as defined by this Act, an independent hospital or care home for mentally disordered persons or any other suitable place.””
Baroness Walmsley (LD)
My Lords, I shall speak also to Amendments 190 and 191, which are grouped with Amendment 189. We now come to the part of the Bill that deals with the Mental Health Act 1983. Amendment 189 would ensure that no one, regardless of their age, was taken to a police cell under an emergency section of the Mental Health Act. Amendment 190 defines a place of safety, and that does not include a police cell.
The Bill makes some very welcome changes to provisions under the Mental Health Act. It bans the use of police cells for children and young people in crisis; it seeks to reduce the use of police cells as places of safety for adults; and it reduces the length of time that a person can be detained from 72 to 24 hours. These are big, important and very welcome improvements. However, the Bill leaves the door open for police cells to continue to be used for adults in crisis. That should not be continued, and it does not need to happen. We have seen in places such as Hertfordshire and Merseyside, where no police cells have been used for people in crisis in the last year, that with careful planning and co-operation it is entirely possible for people to be supported in health-based places of safety instead of being taken to police cells. I commend the large reduction in the use of police cells that many other police forces have made over the last year across England and Wales.
The limited change to the use of police cells in the Bill is based on an assumption that 4% of people detained under Section 136 need to be taken to a police cell due to “exceptional circumstances”. However, these circumstances have not been defined. Clearly, we need further information on the exact situations in which the Government envisage a police cell being an appropriate place for someone in crisis. I do not believe that anyone in crisis should be taken to a cell. That is not a place of safety for someone in crisis. When someone has a mental illness, everything that a public authority does to and for them should help them recover. Putting them in a cell does not achieve this. Indeed, it often achieves the exact opposite. One patient told the charity Mind that, “Being put in a police cell where hardly anyone is trained in mental health issues is not good. To be locked up and isolated made me think I was worthless. All I wanted was to talk”.
Baroness Howe of Idlicote (CB)
My Lords, I have added my name to amendments in this group. I will speak specifically to Amendment 190, which we have already heard a fair amount about. It seeks to prohibit anyone detained under Sections 135 and 136 of the Mental Health Act being taken to a police cell. Regardless of their age, no one should be made to feel like a criminal simply for being unwell.
I will focus on the emotional impact that being detained in a cell has on people in crisis and question some of the assumptions about the need for the use of police cells for mental health provision. Those who are picked up by the police under the Mental Health Act are detained because there is a real risk of harm to themselves or others. However, they have committed no crime. These are people in need of health support and are detained so that a mental health assessment can take place.
When in a mental health crisis, one is likely to feel frightened, overwhelmed and extremely distressed. One’s behaviour may seem aggressive and threatening to others. That is part of mental illness. Nevertheless, such people still need support and compassion. Health-based places of safety need to be equipped to manage someone’s challenging behaviour, and some areas are able to do this already. We heard about Merseyside from the noble Baroness, Lady Walmsley,
The experience of being held in police cells is distressing, and often it is the most vulnerable who end up in a cell; yet being held in a prison cell and treated like a criminal can only make matters worse. The Government’s impact assessment on the Bill details the experiences of some of those who have been detained in police cells. Many speak of feeling cold and hungry, being left alone, strip-searched and having their personal possessions removed. Indeed, in one case the light fittings were removed from the cell to prevent self-harming, leaving the person, who was experiencing a mental health crisis, completely in the dark.
Clearly the use of police cells is never appropriate for people with mental health crises and we need to challenge the assumption that sometimes they are. I hope these amendments, so ably moved by the noble Baroness, Lady Walmsley, will persuade the Minister that the use of police cells when dealing with people with a mental health crisis is no longer acceptable and that she will therefore accept the amendments.
Baroness Hamwee
My Lords, my name is on the amendments in this group. My noble friend mentioned the importance of ensuring parity between physical and mental health services, and we will continue to raise that until parity is achieved. She also mentioned stereotyped assumptions as to links between mental health and criminal offending and racial stigma in mental health matters.
It occurs to me that the arrangements for using police stations as a “place of safety”—like others, I put that term in quotation marks—must be very difficult for police officers. They are not health professionals who can deal with physical health problems or mental health problems. We should not expect them to respond to a situation for which, however well intentioned, they are not qualified.
My noble friend also mentioned the question of funding. Inevitably, the reliance on increasingly stretched local authorities is an issue. Given that a place of safety includes residential accommodation provided by local social services, we need to recognise the importance of local authorities’ funding for new places of safety. The Government’s investment in that is a positive step. As with so many issues, this is not something that can be put in one pigeonhole and left there.
Lord Bradley (Lab)
My Lords, this group of amendments addresses the crucial relationship between mental health and the criminal justice system. I make it clear at the outset that I support the objective of banning the use of police cells as a place of safety for adults. My comments are in the context of my own independent report published in 2009, which reviewed people with mental health problems and learning disabilities in the criminal justice system.
In the report I made over 80 recommendations for change, at least two of which are relevant to this debate. First, I recommended the establishment of multidisciplinary liaison and diversion teams composed of people with a variety of skills, including psychiatric nurses, learning disability nurses, drug and alcohol workers and many others, all working alongside the police in police stations to identify and assess vulnerable people and to support the custody staff at the first point of contact with the criminal justice system. This programme is being rolled out nationally. Currently, 55% of the country is covered. Additional money from the Treasury was allocated in July of this year to enable 75% of the country to be covered by 2018-19, with a view to 100% coverage by 2020-21.
Alongside this, and now properly integrated with liaison and diversion teams, is street triage. That is where the police and NHS staff work together in their local communities. It works best where there is a dedicated vehicle and they sit together, often with their separate laptops—we hope to link technology at some point—so that they can immediately assess the needs of vulnerable persons and stop them hitting against the criminal justice system. These are often the people who may be sectioned under Section 136 of the Mental Health Act, and this is where the second recommendation in my report is relevant today. I said then that, “All partner organisations”—by which I meant principally the police and the NHS,
“involved in the use of Section 136 of the Mental Health Act 2007 should work together to develop an agreed protocol on its use. Discussions should immediately commence to identify suitable local mental health facilities as the place of safety, ensuring that the police station is no longer used for this purpose”.
The recommendation was accepted by the then Labour Government and each subsequent Government—we are on to the fourth now—have committed to this objective.
Lord Rosser (Lab)
My Lords, as has been said, the Bill bans the use of police cells for those aged under 18 in a mental health crisis, and for those aged 18 and over it states that they may be held in a police station,
“only in circumstances specified in the regulations”,
made by the Secretary of State. As I understand it, in 2015-16, 43 children and some 2,100 adults in a mental health crisis and covered by Sections 135 and 136 of the Mental Health Act 1983 ended up in police cells rather than at an appropriate health-based place of safety.
Amendment 190 in the group provides that no person of any age in this situation should be held at a police station as a place of safety, and that is an objective with which no doubt there is widespread agreement. The question that has to be asked, though, is what would happen if the provision in line with this amendment was introduced relatively soon and there were still insufficient non-police-cell appropriate places of safety available and police cells could no longer be used. What would happen to the vulnerable people concerned in those circumstances?
The Bill’s objective in relation to children not being kept in police cells is clearly considered to be achievable by the Government, no doubt because, as I understand it, we are talking about fewer than 50 children. However, the figure for adults appears to be some 50 times higher. Can the Government say how the figure of 2,100 adults in police cells in 2015-16, or whatever alternative figure they have, compares with the total number of adults in a mental health crisis who were placed in an appropriate health-based place of safety? I believe that the noble Baroness, Lady Walmsley, mentioned the figure of some 28,000. Can the Government also say how quickly they estimate that the terms of Amendment 190 could be met through the provision of the necessary additional places of safety, what the costs would be, and within what timescale they currently intend to meet the objective of this amendment, since I assume that this is a Government objective too?
Why are there wide variations, as has been said, in the current extent of the use of police cells for people in a mental health crisis, and why do some areas appear not to need to use police cells at all in this situation, but others do? Is it due to poor management, the inadequate provision of suitable health-based places of safety, or a lack of suitably qualified staff? Can the Government also set out in what circumstances they expect to specify that an adult can be kept in a police station as a place of safety under the regulations that can be made by the Secretary of State under Clause 79(6) of the Bill? Finally, along with my noble friend Lord Bradley, I look forward to hearing the Minister’s response to the proposal put forward by my noble friend in relation to a fresh and independent review.
Lord Thurlow (CB)
My Lords, I rise to support the amendments tabled in the names of the noble Baronesses, Lady Walmsley and Lady Hamwee, and my noble friend Lady Howe. They mark important steps across the board to bring the treatment of mental ill-health in line with our 21st-century understanding of that arena. I have, perhaps regrettably, close personal experience of dealing with and attempting to cope with people suffering a mental health crisis. I bring to bear that experience as well as the advice offered by the Mental Health Alliance and specifically the charity Mind, both of which have been referred to, in my endorsement of these amendments.
The amendments regarding the use of police cells and homes as supposed places of safety—neither are appropriate, I agree—and concerning the period of detention in those places awaiting a mental health assessment are most important. I acknowledge the positive steps that this Bill in its original form recommended in both of these areas, but they do not go far enough. Perhaps I may reflect for a moment on who it is that these clauses are designed to protect. It is the vulnerable, the needy and those less able to help themselves. We have a special duty to those people in our society. These amendments are an important step of progress in improving their treatment at the hands of the police in times of crisis. That said, I am not criticising the police. I have seen at close quarters the awkward circumstances of the police having to enforce the rules. I admire the sensitivity and empathy I have seen displayed.
When a person is in a mental health crisis there is a very high risk of private anxiety, emotions of distress, confusion, aggression and perhaps threatening behaviour. What is required is probably support and compassion. Confinement in a cell is bound to add to this distress. Surroundings matter.
As we have heard, the Government have begun to dedicate funds to mental health services, improving the provision of suitable places of safety and achieving parity of esteem between mental and physical health. These are important steps and this work must continue. We must step up to this challenge on the behalf of those affected. This disadvantaged group, unlike most in our society, seldom makes its own case for better care. The reality is, of course, that they cannot—they are confused and they are not organised—but we can. They rely on us, and on the charities and other groups that work with them.
We must be sure to try our best to legislate so that the trend continues and relevant investment goes toward providing for those in need. The amendments tabled by the noble Baroness would do exactly that. This is legislation that will help bring the Mental Health Act 1983 into the 21st century. If we think for a minute, that Act was enacted more than 30 years ago. The quantum leaps of progress in medical understanding of mental health issues have been huge. Yet, the Act on the statute book is more than 30 years old. We must take every opportunity we can to improve the terms of the Act wherever we can.
I thank the noble Baronesses for their work in tabling the amendments and request that the Minister accepts them.
Baroness Chisholm of Owlpen
I thank noble Lords for this important debate. As the noble Baroness, Lady Walmsley, explained, these amendments seek to restrict, in different ways, the premises that can be used as a place of safety for persons detained under Sections 135 or 136 of the Mental Health Act 1983.
Of course it is important that people detained at a time of crisis be taken to the most appropriate place of safety for their medical needs. That principle is behind these amendments and also represents the Government’s position. Where we differ is on how this should be achieved in terms of the full range of options that should be available to professionals. Amendments 189 and 190 to Clause 79 would completely prohibit the use of police stations as places of safety. The Bill provides that police stations cannot be used as places of safety in the case of children or young people aged under 18. The issue for the Committee is whether this prohibition would also apply to adults.
The noble Baroness and other noble Lords who have spoken are concerned that a police station should never be an appropriate place for a person of any age to be taken at a time of such distress. The Government accept that police stations have been used to detain people under Section 136 far too often. Although much progress has certainly been made to address this, including a 54% reduction between 2014-15 and 2015-16, there is no doubt that police cells are still used inappropriately in some areas.
This will be addressed through regulations governing the circumstances in which a police station can be used for an adult. We have heard from experts that there are occasions when the behaviour of adult detainees can be too violent to be safely managed in a health setting. I expect the regulations to also set out the expected standards of care to be provided to any adult taken to a police station. These decisions will be determined on a case-by-case basis, but I stress that the emphasis is on the exceptional nature of such situations, with health-based places of safety used for the vast majority of cases. The Government have engaged experts and other interested parties in the development of those regulations. I expect to be in a position to say more about our approach ahead of Report.
Baroness Walmsley
My Lords, I thank the Minister for her reply. I have a few points to make in response but want first to apologise to the noble Lord, Lord Bradley, for not mentioning his excellent report. I congratulate him and the Government on the recommendations in the report that have been achieved on the ground. The street diversion teams are particularly good and would certainly come into play were a person found to be violent and in danger of hurting themselves or somebody else. The teams have had a fantastic effect and I look forward to their being rolled out universally.
It has been suggested that the amendment is a little premature and that we do not yet have the infrastructure in place to enable us to have a complete ban on the use of police cells. As with every other Bill, it would be perfectly possible for the Government to accept such a measure and then delay its implementation until such time as the review suggested by the noble Lord, Lord Bradley, had taken place and the extra beds had been put in place. That would not be an impediment to the Government accepting my amendment.
The noble Lord, Lord Rosser, asked what would happen if no health-based place of safety was available, the implication being that only use of a police cell was possible. Every local authority has hundreds of care homes and the lucky ones have nursing homes, too. Not all beds are occupied all the time; indeed, a recent report in the media cited instances where the contract with the family concerned stated that after the person in question had died, the family would have to carry on paying for two, three or four weeks while the home found another occupant for that room. That means that vacant rooms will be available. Some of them would be perfectly suitable for some patients, because they are acceptable and legal places of safety. If Hertfordshire and Merseyside can do it in those circumstances, then why not everywhere else?
Baroness Chisholm of Owlpen
Is the noble Baroness suggesting that mental health patients are able to go to care homes as places of safety?
Baroness Walmsley
I beg the Minister’s pardon. I should have said that there are care homes in every local authority where staff are specially trained to deal with people with mental health problems.
If Merseyside and Hertfordshire can do it, why not everywhere? Do they not have any patients who are in exceptional circumstances? I am sure they do.
On funding, the Minister suggested that the LGA was incorrect in briefing us that none of the money was going to local authorities. That is where my statement came from, and it should know.
On Amendment 191, about use of the home, it is important that somebody in a mental health crisis be able to see someone who is trained to assess and treat them as soon as possible, and as soon as would happen if they had a physical problem. They will not get that in their home. I do not believe that those choosing to take them home would be in a position to assess whether that home was really safe. Even members of the family would not know whether the home was safe, so getting their agreement is no guarantee that the home is a real place of safety. Many mental health patients have said that they would find it a serious intrusion on their privacy if the police brought them home and stood guard over them while they were there. I accept that it would be for only a short period, but to have a policeman outside the door would have a great effect on how they felt they were seen. As the noble Lord, Lord Thurlow, said, they already feel stigmatised by a link being made between mental health and criminality, which there really is not. We should therefore pursue these issues on Report. Of course, this is Committee stage, so for the moment I beg leave to withdraw the amendment.
Baroness Walmsley
Baroness Walmsley
My Lords, the amendment would ensure that people are really only detained under the Mental Health Act for up to 24 hours. To achieve that, the clock needs to start when the decision is made to detain someone and not when they arrive at the place of safety. If the Government want people to be detained only for up to 24 hours, Amendment 192 is needed. This is the only way to ensure that we are not detaining people for longer than 24 hours during what is often a distressing and alienating experience for people in crisis. They may be detained on the street in one of the special vehicles that have been mentioned or in another public place. They may be kept in a police car until a suitable destination is found. Wherever it is, distress will ensue for the person concerned.
We need to look at the position in parallel with that of a person with a physical illness who calls an ambulance. When ambulance services are assessed, the clock starts ticking from the moment the ambulance is called and not from the moment the patient is picked up. This is a matter of parity between physical and mental health.
When discussing these parts of the Bill, it is crucial that we remember that people detained under the Mental Health Act have not committed any crime. They are unwell and require health support. That is why I beg to move.
Baroness Hamwee
My Lords, I support the amendment. From the point of view of the person detained the detention starts at the point described by my noble friend Lady Walmsley. It is not a question of that being some sort of limbo; that must be how it feels. If a person is on the way to a place of safety, they are being detained, held and controlled as much as they would be when they reached their destination.
Viscount Hailsham
My Lords, I have great sympathy with the points just made. The clock should start ticking when a person is taken into custody and not when he or she arrives at the place of safety.
Baroness Chisholm of Owlpen
My Lords, the amendment would provide for the permitted period of detention of a person detained under Section 135 of the Mental Health Act 1983 to commence at the point at which they were removed to, rather than the point at which they arrived at, a place of safety.
The Government wholeheartedly support the aim of minimising the period during which a person is detained under either Section 135 or Section 136 of the 1983 Act. That is why Clause 80 reduces the maximum detention period from 72 hours to 24 hours.
I also agree that every effort should be made to minimise the time taken to remove and transport a detained person to a place of safety. However, I put it to the noble Baroness that securing that outcome cannot best be achieved through legislation. Indeed, the amendment could well have unintended consequences which were detrimental to the best interest of detained persons.
I fear that the practical effect of the amendment would be to penalise those in need of care and the professionals assessing them in circumstances where the detained person needed to be removed from an isolated location, or if it was difficult to remove that person. For example, if someone needs to be removed from a place that is isolated or difficult to access, it may take some time for professionals to be able to get that person to a place of safety. We do not want the police or mental health practitioners to have one eye on the clock in such circumstances.
There is a balance to be struck between taking positive action to keep periods of detention as short as is reasonably possible and giving mental health professionals sufficient time for the necessary arrangements to be made for mental health assessments to be conducted during the 24-hour window provided for in the Bill. We believe that the combination of reducing, by two-thirds, the period of detention and starting the detention clock only when the detained person arrives at the place of safety—which is, incidentally, how the time limits work now—achieves that balance.
In practice, the vast majority of detained persons will be assessed well within 24 hours of their removal, but the legislation needs to allow not just for the generality of cases, where a person can be taken quickly to a place of safety, but also for that small minority of exceptional cases where this may not be possible. I hope that, on reflection, the noble Baroness is persuaded that the approach taken in the Bill is in the best interests of those suffering a mental health crisis and in need of immediate care. I accordingly invite her to withdraw her amendment.
Baroness Walmsley
My Lords, I thank the Minister for her reply. Obviously, I will consider what she has said very carefully in case there are any unintended consequences, but I confess that up to this point I am not quite convinced. Once a person has been taken into custody they are under the control of the police, their liberty has been taken from them, and I cannot imagine anywhere in this country that you could not get to within 24 hours. Because we are in Committee I will certainly withdraw my amendment and I will think carefully about whether we need to ask for further consideration of this on Report. For the moment, I beg leave to withdraw the amendment.
Baroness Walmsley
“Detention under the Mental Health Act 1983: access to an appropriate adult
(1) A person detained in a place of safety under section 135 or 136 of the Mental Health Act 1983 shall have the right to have access to an appropriate adult.(2) For the purposes of subsection (1), “appropriate adult” means—(a) a relative, guardian or other person responsible for the detained person’s care;(b) someone experienced in dealing with mentally disordered or mentally vulnerable people but who is not a police officer or employed by the police; or(c) some other responsible adult aged 18 or over who is not a police officer or employed by the police.”
Baroness Walmsley
Amendment 193 would ensure that people detained under Section 135 or Section 136 of the Mental Health Act 1983 have access to an appropriate adult. Such access is key to providing people in crisis access to advice while under emergency detention. It is a uniquely distressing and confusing time, as we have heard, and one where independent advice from someone with knowledge and skill who can handle the situation calmly is crucial.
At the moment detained people only have the police, who were involved in detaining them, and the person doing their mental health assessment as their key contacts. Clearly, neither of these can be seen as impartial to their situation. The person doing their assessment, although qualified, is going to be deciding what happens to them next, and so cannot really be described as impartial. There is a huge gap here, since people under most other sections of the Mental Health Act have the right to access an independent mental health advocate. People who are under arrest also have the right to access an appropriate adult. The National Appropriate Adult Network says about people detained or questioned by police:
“While both children and mentally vulnerable adults are required to have an Appropriate Adult under the PACE Codes of Practice, there is only statutory provision for children. As a result many people aged over 17 who are mentally vulnerable do not get the support that they are entitled to. This includes people with mental ill health, learning disabilities and autistic spectrum disorders”.
I recognise the concern of local authorities that they are strapped for cash, but I feel that making this provision statutory will put pressure on the Government to provide the necessary resources. The JCHR shares my concerns about this gap, as we read in its third report of the 2016-17 Session. It wrote to Mike Penning MP, then Minister for Policing and Criminal Justice. He replied on 1 July 2016 to the effect that persons detained under Sections 135 and 136 were only there in order to allow for a mental health assessment and he was keen,
“that we do not inadvertently build unintended and unnecessary delay and bureaucracy into this process or as a consequence of having to await the arrival of a formal advocate or independent representative”.
He also pointed out that the person could request the presence of a legal adviser or a relative or friend. This did not satisfy the JCHR and it does not satisfy me.
The JCHR said:
“We believe that additional safeguards are required to ensure that a person detained in a place of safety under s 135 or 136 of the Mental Health Act 1983 should have access to an ‘appropriate adult’, particularly in circumstances where they are detained in their own home”.
It drafted an amendment very similar to my Amendment 193, which I think it proposes to bring forward on Report, unless the noble Baroness can satisfy us all this evening. Given the state a person is likely to be in when they are detained, I believe it would be a breach of their human rights not to allow them the right to access an appropriate adult. I beg to move.
Baroness Chisholm of Owlpen
My Lords, it is absolutely right that people detained under Sections 135 or 136 should have the help and support they need to understand what is happening to them, and the current arrangements already allow for that. Detention under Sections 135 and 136 is for a short period of time and for the specific purpose of assessing the need for care and treatment, and making the necessary arrangements for its provision.
This amendment calls for each person detained to have access to an appropriate adult; an issue which was also raised by the Joint Committee on Human Rights in its report on the Bill. It is true that appropriate adults provide an incredibly valuable service, providing support and advocacy for children and vulnerable adults detained in police stations, usually when they are under arrest in connection with a criminal offence. Appropriate adults are not currently required to be provided by the police to support people detained under the Mental Health Act, nor are they trained to meet their particular needs. We must be cautious of the potentially stigmatising effects of conflating the support services provided to people suspected of an offence with those needed by people detained in connection with their mental ill health.
In the majority of cases under Sections 135 or 136, the person will be taken to health-based places of safety, where appropriate adults do not operate, rather than to police stations. In 2015-16 police stations were used in only 7% of Section 136 cases in England and Wales. The provisions in the Bill mean that police stations will be used even less than they are now; in fact, quite rarely, I expect— we hope, not at all. These rare cases require particular attention and I expect that the regulations on the use of police stations as places of safety for adults will give very clear direction about the level of support that will need to be in place.
I recognise that this amendment is about all people who are detained under Sections 135 or 136, regardless of which place of safety they are taken to. It is about supporting them, informing them and speaking for them if necessary. The Government are clear that the mental health professionals involved in the detention and assessment process are best placed to do this. Also, mandating the attendance of an appropriate adult, or some other person with a similar role, could very easily cause avoidable delays in getting on with the mental health assessment that is the proper purpose of a detention under Sections 135 or 136. Given that the Bill reduces the maximum period of detention from 72 hours to 24, it seems unhelpful to then introduce additional requirements that would, in all likelihood, impinge on that reduced period of time.
Guidance is now being developed on the changes the Bill makes to the 1983 Act. It will make clear the expectations on healthcare staff—those whom people detained under Sections 135 and 136 will encounter—to ensure that detainees have the support and advice they need while awaiting and undergoing an assessment. The Government are engaging with a wide range of experts to draw up this guidance. Current practices and the needs of people experiencing a mental health crisis will be carefully considered.
I hope I have been able to persuade the noble Baroness that mandating access to an appropriate adult is inappropriate in the context of a short Section 135 or Section 136 detention, and that, having had this opportunity to debate the issue, she will be content to withdraw her amendment.
Baroness Hamwee
My Lords, I am a member of the Joint Committee on Human Rights and my name is on the amendment. I will make two points. First, the Government’s argument is that using the term “appropriate adult” causes some sort of stigma. I cannot speak for the committee or my noble friend whose amendment it is, but you can call that person what you like—it is the job that needs to be done, and that is what the amendment is driving at. Secondly, I wish to draw attention to the provision of subsection (1) of the proposed new clause, which is,
“the right to have access”.
Rights should be in legislation.
Baroness Walmsley
I agree with my noble friend on that point and on all the points she made. I thank the Minister for her comments, which I will of course consider between now and Report. I do not agree with her that the person formally doing the mental health assessment can be regarded as the appropriate adult, for the reason that I gave in my opening remarks; that is, that person is in control of what happens next to the person being assessed. It is important that the person has a right—they may not choose to use it—to consult somebody else about whether that is the right thing for them and how they feel about it.
Of course, the Minister is right that the number of people detained in police stations in these circumstances is going down very rapidly. If my Amendment 189 was accepted, it would become zero very quickly. In those few cases—many fewer now—where a person is in that situation, I still think that they should have a right to choose if they feel the need to have somebody else there to advise them. However, this is Committee so I will withdraw the amendment.
Baroness Walmsley
“Disallowing use of Tasers by police officers on psychiatric wards
A police officer may not use a Taser or electroshock weapon during a deployment on a psychiatric ward.”
Baroness Walmsley
My Lords, Amendment 194 would ban the use of Tasers in psychiatric wards. It must be remembered that a Taser is a firearm and when they were first introduced they were restricted for use by trained firearms officers only. How could it possibly be justified to use a firearm on a person going through a mental health crisis and whose liberty has been removed, especially when you do so in a health-based setting where staff are supposed to be trained in the behaviour management of people suffering a mental health crisis? Could it be that the increased use of Tasers in these settings is an indicator of the shortage of properly trained staff in them?
A Guardian freedom of information request on the police response to calls for help from staff at psychiatric units spotlighted the pressures on an overburdened system. The staggering 617 emergency 999 calls by one London trust in the past 12 months indicate a service in crisis. What we are seeing is the health service relying on a forensic solution to meet clinical need, because we have lost more than 4,000 mental health nurses in recent years. This is a health issue as well as a Home Office issue.
It is also a human rights issue. The United Nations Committee Against Torture has stated that Taser X26 weapons provoke extreme pain, constitute a form of torture and in certain cases can also cause death, as shown by several reliable studies and certain cases that have happened after their use. While termed non-lethal, there have been at least 10 known deaths associated with the use of Tasers in the past 10 years, yet Tasers have been used against patients detained in secure psychiatric settings over that same period. But this scandal has come to public attention only recently, due probably to the imbalance of power between those who use them and those upon whom they are used. I would like to know why the CQC and/or the IPCC have not reported on this before.
Viscount Hailsham
My Lords, I hope the Committee does not accept this amendment. Of course, I have every sympathy with the generality of the points made by the noble Baroness, but I hope she will forgive me if I observe that many of the arguments that she has advanced are advanced in general against the use of Tasers, not with particular regard to the use on psychiatric wards. Your Lordships need to keep in mind that some people held on psychiatric wards can be prone to extreme violence. I am not prepared to say that there are no circumstances in which a Taser might not be appropriate in self-defence of the people with responsibility for the persons on the ward or in defence of third parties. That is an extreme position to take and I ask the Committee not to take it.
Furthermore, if the Committee was to accept this amendment it would create an offence on the part of the officer or nurse who used a Taser, who would be guilty of an assault, whereas the circumstances that arose in any ordinary context would justify the use. That strikes me as a very rum thing to do indeed. I hope that we will rely on the ordinary law, which is that a Taser should be used only in wholly exceptional circumstances in appropriate self-defence or in defence of a third party, and we should not try to prohibit its use in very specific circumstances of the kind identified by the noble Baroness.
Lord Dear
My Lords, I echo the words that we have just heard. I have considerable sympathy with the emotions and reasoning behind the amendment of the noble Baroness, Lady Walmsley. I make no comment about staffing in psychiatric wards—I have no knowledge of that—but as I speak against this amendment, we should remember that the Taser was introduced as an intermediate stage. It is intermediate between the use of batons, pepper sprays, CS gas and so on the one hand and firearms on the other. A Taser is not a firearm. It is something akin to it—it looks rather like one—but it is not a firearm within the definition of the Act. It does a different thing altogether. There is a violent interaction; of that, there can be no doubt. It brings immediate incapacity and some discomfort when it is fired but, as is sometimes said, in fact it knocks down the individual completely. That has to be the object of the exercise.
Perhaps I can give the Committee a circumstance which has already been alluded to. On a psychiatric ward a patient, for whatever reason, has become exceedingly violent and probably caused serious injury. They may even have caused death. The police are called; what are they going to do? If this amendment is passed into law, the police cannot use a Taser. They will use either the original, which is the pepper spray and so on, or a firearm. We need to remember that the use of a firearm in those extreme circumstances is justified in law, because there is a threat to life. By taking the Taser out we will in effect open the door, in extremis, to somebody being shot with a real lethal barrelled weapon.
I am all for looking at practice directions and reviewing the use of Tasers. Mission creep has been mentioned and perhaps there is mission creep—I do not know that and have not looked at the figures. However, to have something as extreme and prescriptive as this amendment within statute will certainly expose patients in psychiatric wards to the risk of death rather than anything else. In speaking against this, I am all for looking closely at the use of Tasers and for counselling officers using or thinking of using them to exercise extreme caution, but I would not go so far as the amendment stands.
Lord Rosser
My Lords, my name is attached to Amendment 194 and to a further amendment in this group, Amendment 201SB. As far as Amendment 194 is concerned, as has been said, it provides that a police officer may not use a Taser or electroshock weapon during deployment on a psychiatric ward. The purpose of adding my name to this amendment is to raise concerns that have been expressed to us about what is, in effect, a police response to what one might have thought was a clinical emergency but which has the potential effect of appearing to criminalise highly vulnerable people. I accept, though, that there could be very exceptional circumstances where a police officer might have to use a Taser during deployment on a psychiatric ward.
In response to this debate, perhaps the Government could provide figures on the extent of the use of Tasers or other devices by the police on psychiatric wards over the last 12-month period for which figures are available, and on the varying extent to which the trusts concerned called in the police and why there are such variations. The noble Baroness, Lady Walmsley, clearly has similar information to that which I have been given. I have been told that there are trusts which call in the police literally hundreds of times a year. It would be helpful if the Government could say in response whether they accept that that is true and why they think it happens. If the police are called in on frequent occasions, is the heart of the problem that results in them being called in in that way either inadequate numbers of staff on duty to cope with situations that arise, or is it due in any way to inadequate or insufficient training of staff?
The second amendment which I have in this group calls for a review of Tasers, including in places of custody, and the extent to which there is or is not a disproportionate use of Tasers against black and minority ethnic groups. Once again, this concern has been raised with us—hence the amendment—and it was highlighted following an incident which led to the death of a former well-known footballer. I simply ask: what procedures exist to ensure that there is transparency and scrutiny over the use of Tasers? What information is kept of the details of those against whom Tasers are deployed, including age, gender and ethnicity? What requirement is there for the use of Tasers to be reported immediately and to whom?
Like the noble Baroness, Lady Walmsley, I have just seen the letter sent yesterday to Charles Walker MP from the Minister of State for Policing and the Fire Service on the use of Tasers in mental health settings. No doubt in her response the Minister will seek to place on record in Hansard the thrust of the terms of that letter and the circular that has been sent to police and crime commissioners, chief constables and the chairs of local mental health crisis care concordat partnerships in England. Nevertheless, I hope that the Government will seek to respond to my questions insofar as they can, bearing in mind that the circular states that at present there are no reliable data on the frequency or scale of any Taser use in mental health settings.
Lord Harris of Haringey (Lab)
My Lords, I find myself in total agreement with the words expressed by the noble Viscount, Lord Hailsham, and the noble Lord, Lord Dear. When I first saw this amendment I could see what it was trying to achieve: a laudable objective, based on the fact that many mental health units are incapable of dealing effectively with some of the patients they have on their wards, and that the police are called to deal with incidents in an unacceptable number of instances. Quite frankly, I suspect that whatever is going on in some of those mental health settings, they are not finding all the appropriate ways of dealing with and de-escalating violence which one would expect their specialist training to deliver. The number of times that the police are called is of concern.
However, when I saw the amendment I thought it was a silly—fatuous was the word that first came to mind—response to what was proposed. The point is that if there is a very serious incident and a major crime of violence is being committed, the police have to be called. It is then a question of what the most appropriate response is. A few months ago, a mental health nurse was murdered by a patient in a Croydon mental health unit. Is the noble Baroness, Lady Walmsley, suggesting that it would have been inappropriate in the circumstances in which the police were called to that unit not to have found ways of restraining the patient concerned, given that it was necessary to deal with them? Then there was a mental health nursing assistant who was murdered by a patient in Gloucester in 2014, because the patient had returned from authorised leave with a 10-inch kitchen knife. These are serious incidents that require an appropriate and proportional response. What does the noble Baroness think should have been done in those incidents? The situation was that they had got out of hand in both instances and individuals died, presumably as a consequence of the mental health unit not being able to manage the incident. The effect of Amendment 194 would be that had there been a police officer equipped with a Taser in the immediate vicinity, he could not have discharged it. The noble Baroness may think that something other than a Taser should be used.
The argument about where Tasers sit in the spectrum of potential uses of force by the police is one which will no doubt continue. But although there have been instances where someone has died perhaps as a consequence of repeated Taser use, it is also the case that people have died because of the use of other forms of force. Hitting somebody across the side of the head with a baton is also potentially likely to cause death. Indeed, it may be better for the patient or individual concerned to be tasered.
The noble Baroness, Lady Walmsley, talked grandly about the UN saying that these were weapons of torture. The UN definition of the term “torture” is:
“any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official”.
I fail to see how that UN definition of torture could be applied to the circumstances we are talking about of an emergency in a mental health ward where the police have been called. I understand that the use of the word “torture” related to the particular way in which Tasers—I think we are supposed to call them conductive electric devices or something equally opaque—were issued in a particular unit of the Portuguese police force. I have no idea under what circumstances that particular unit of the Portuguese police force was planning to use Tasers, but I assume that the use of the word by the UN was very specific, bearing in mind its definition of torture.
If we pass this amendment, the only alternative when the police have been called because of a major incident—an assault, somebody at the risk of losing their life or somebody already having lost their life and a danger to others—when a Taser cannot be used would be the use of a real firearm, which would be likely to kill the individual concerned, or a baton, which can be just as damaging, particularly in restricted and difficult circumstances. I do not think that makes any sense at all.
Lord Paddick
I was trained in how to deal with these sorts of situations before Tasers were invented. Batons and firearms are not the only alternatives. Using shields, either those specially produced in order to deal with these situations or even NATO-type shields, particularly in the confined space you find on a mental health ward, is an alternative to the batons and guns which the noble Lord seems to suggest are the only alternatives to a Taser.
Lord Harris of Haringey
I, of course, defer to the extensive knowledge of the noble Lord, who was born many decades before the Taser was invented. He is right that of course there are alternative methods, but pinning somebody against a wall and pushing them hard and repeatedly with a NATO shield is also a fairly violent response. We are not talking about nice situations; we are talking about a situation where something major in terms of an intervention is needed to save somebody’s life. Under those circumstances, I think a blanket proscription which says you must not use a Taser is a mistake.
There are also questions about why this amendment refers simply to mental health wards. There are violent incidents every night in accident and emergency departments. Are we saying that we would permit the use of a Taser in an incident in an accident and emergency department, but if exactly the same incident occurred in a mental health ward that would not be the case? The noble Baroness may actually be saying that Tasers should not be used at all. That is fine—it is a perfectly legitimate argument, and there is a debate to be had, but it seems a strange anomaly to make a distinction between one type of hospital ward and another.
The issue that has to be addressed is why so many incidents get out of hand in mental health wards. If that can be resolved—and I suspect it will mean staffing and may mean improved training and a lot of de-escalation—concern about the sheer number of times the police are called out to incidents of this sort would be diminished. The fact is that that is the problem, and that is the problem that must be addressed. A blanket ban on Tasers does not solve that problem; it just creates other problems, which is unsatisfactory.
The noble Baroness also referred to the overuse of Tasers elsewhere in the community, the probable discrimination and the fact that black people are more likely to be tasered than others. That is a real concern. I am aware that in London, at least, the mayor’s office requires that on every single occasion that a Taser is drawn, an individual is red-dotted when a Taser is pointed at them or a Taser is discharged, the circumstances are recorded and it is reported to the Mayor’s Office for Policing And Crime. I assume that the Minister has those figures to hand. It would be very interesting to know—it is quite a substantial number of cases. It is also interesting that often the mere act of red-dotting an individual—pointing the Taser at them—is enough to de-escalate the situation without discharge. It would be interesting to know whether those statistics tell us in how many instances Tasers were used in a mental health ward. I assume that the detail that is collected would enable that; I hope it does. It is certainly important that whenever a Taser or any other force is used, it should be properly recorded together with the circumstances and the ethnicity of the person against whom it was used. I understand that that is included in guidelines which are emerging from the College of Policing. I strongly welcome them because that will enable us to have a baseline to be able to see what is happening and to deal with issues where there is discrimination or overuse of force under whatever circumstances. By “overuse of force”, I do not mean just Tasers; I mean all forms of force.
Lord Berkeley of Knighton (CB)
My Lords, I do not think any noble Lord wishes to see Tasers used in hospital settings except under the most extreme circumstances. However, I am very persuaded by what I have heard from other noble Lords, including my noble friend Lord Dear. I would like to put the position slightly from the point of view of the patient. When I was a young man, I had quite a lot of experience of psychiatric wards—not, I hasten to add, as an inmate—and they can be terrifying places of extreme violence.
This amendment would mean that police officers could not use a Taser. I can foresee circumstances where somebody gets hold of a kitchen knife, for example, and is in a volatile state—the kind of volatile state that people who have not seen this kind of mania find hard to imagine. It is truly terrifying. We have to give some credit to people who are managing the situation. Given the information we have just heard from the noble Lord, Lord Harris, I would like to think that the police are acting responsibly, so we have to assume that somebody assesses the situation and decrees that it is so dangerous that the best way of not harming the mental patient any further is to use a Taser. I really cannot see how we could stop the police having that possibility at their disposal.
My concern is very much from the point of view of the patient, but there are occasions when a Taser just might be in the best interests of the patient.
Lord Ouseley (CB)
My Lords, as a signatory to this amendment, I certainly do not think that it is as crazy as it seems. I certainly support the noble Baroness, Lady Walmsley. She has very eloquently put forward the reasons why the amendment should be supported. I never felt that the amendment would be accepted, for the very reasons that noble Lords have given in speaking against it—and I understand why they said what they said. It is almost out of desperation that an amendment like this appears. Noble Lords have already mentioned the issue that has led to it: the desperation among people working with black and minority communities in such situations. The noble Lord, Lord Harris, mentioned the Care Quality Commission overseeing the way in which the police are involved in such settings and the way in which the Taser has become not just a weapon to stun—which might be necessary in such dangerous situations—but a weapon that has led to fatalities. Those organisations such as Black Mental Health UK that have been raising these issues for the last few years are concerned that no one seems to be listening.
Mental health is in crisis, and you cannot see this amendment in isolation from the other amendments that have been put forward, many of them by the noble Baroness, Lady Walmsley, today. That package of improvements, alongside the improvements that are set out in the Bill, would hopefully get us to a stage that might minimise the need for Tasers to be used in the desperate situations that occur and require intervention. With the number of call-outs that are being made to the police, out of the desperation of staff who cannot cope, the police service is almost becoming an auxiliary to the mental health services in some areas. Part of what has to happen is that we address the deficiencies that exist, including in the quality and number of staff. An amendment such as this brings attention to the problem and brings our concerns to the fore about how we care for desperate people who require health professionals and as far as possible provide them with the care, protection and safety that they need—staff as well as patients. If we had got that right, we would not have put down an amendment such as this, which is one of sheer desperation.
Other amendments are important to improve the service to get us to the point where we would not have to say this. If we had before us all the information that has been asked for by Members tonight, it would enable us to see exactly what the scale of the problem is—rather than it being sensationalised in a way that may not actually be the case—and would guide us towards a sensible situation. As a last resort and in an emergency, police officers called to and deployed in such situations may have to use a Taser. It should not, because of creep, become something that causes as much concern as it does, but the reality of the use of Tasers in everyday policing and of the discrimination that is inflicted on black and minority-ethnic communities means that this is a real concern which we must address.
Earl Attlee (Con)
My Lords, although I have sympathy for everything that has been said in this debate, I support those noble Lords who oppose Amendment 194. We need to consider the position of a police officer who has to deal with an exceptionally violent situation. If this amendment were agreed, the police officer would have to get much closer to someone who is extremely violent. We have technology that we can use and strict controls on how it is used, and we should not deny the police the ability to use Tasers in these circumstances.
Lord Paddick
In her response, could the noble Baroness tell the Committee whether there is any information on the effectiveness of the Tasers used in those situations? Anecdotally and from my own experience, the mental state of some people means that Tasers have no impact. Perhaps she may be able to help the Committee on that point as well.
Baroness Williams of Trafford
I start by thanking all noble Lords who have taken part in this debate. Although there have been opposing views on the amendment, it has provided a very balanced set of points. This group of amendments includes two proposed new clauses about police use of Tasers. As the noble Baroness, Lady Walmsley, explained, her amendment seeks to bar the use by police officers of a Taser or other electroshock device in psychiatric wards.
Any use of force by police officers in psychiatric wards, or in any other setting, must be appropriate and proportionate—the noble Lords, Lord Harris and Lord Dear, the noble Viscount, Lord Hailsham, and my noble friend Lord Attlee made that point and gave some very good examples this evening. The use of force must be necessary and conducted as safely as possible. Therefore, it is right that if police officers need to attend and use force, they should be expected to account for their actions, as the noble Lord, Lord Harris, said.
It remains the Government’s position that the deployment of police officers to mental health settings, and the tactics used, should remain an operational matter for the police force in question. Tasers are an important tactical option for police officers. Unfortunately, some of the most extreme behaviour can occur in mental health settings and can escalate to the point where it can be met only with force—as dictated by the high degree of urgency and grave threat to staff and other patients. I am talking about cases where other de-escalation tactics have probably been tried and have failed. Again, the noble Lords, Lord Harris and Lord Dear, and the noble Viscount, Lord Hailsham, made those points.
A blanket ban on the use of Tasers on psychiatric wards, as proposed by this amendment, would remove this valuable police tactic and therefore potentially reduce the safety of officers, hospital staff and indeed patients. In some extreme cases, it could leave officers with no choice but to use another, potentially more dangerous option as the only means to resolve a violent situation and keep others safe. The same noble Lords made these points. Police officers themselves have made it clear that they would not want their options constrained by a blanket ban on Tasers. Officers have a range of tactics and equipment available, and a Taser is but one of them. In deciding which tactic to use, an officer will assess which is likely to be most effective and proportionate.
The Government accept that more can and should be done to ensure that all uses of force, including of Tasers, are necessary and proportionate. For this reason, the former Home Secretary asked former chief constable David Shaw to lead an in-depth review of the publication of use-of-force data, including data on where force is being used, such as in a hospital setting, to ensure that the use of these sensitive powers is transparent. With the agreement of fellow chief officers, Chief Constable Shaw recommended that every time the police use a significant level of force on an individual, such as the use of Tasers, a range of core data must be recorded. This includes ethnicity, age and location, so that we will be able to identify every time force is used in a hospital or mental health setting. The data will enable thorough scrutiny of proportionality and effectiveness.
That brings in the point that I think the noble Lord, Lord Rosser, made about force seeming to be used more in some places than in others. All forces have worked to implement this new recording system, and I anticipate that the collected data will form part of the 2017-18 Home Office annual data return. I can tell noble Lords that in 2015 there were 10,329 uses of Tasers by police. Actual firings of the device—this is an important point—accounted for 17%. Non-discharges —where the Taser is drawn, aimed, arced or red-dotted—accounted for 81% of Taser use. Red-dotting accounted for 51%—the most common use.
All forces have worked to implement this new recording system and, as I said, it should be in force in 2017-18. The Government have also taken further steps to ensure greater scrutiny of the use of Tasers in mental health settings at local level, where operational decisions are made. Charles Walker MP raised some valuable points on this matter during consideration of the Bill in the House of Commons.
Both Home Office and Department of Health Ministers have in the past few days written to police and crime commissioners, chief constables and the chairs of local mental health crisis care concordat partnerships to ask them to work together to ensure that sufficient local joint scrutiny arrangements are in place. As local leaders with overall responsibility for policing and mental health crisis care, they have been tasked with ensuring that mechanisms are in place in their areas for the joint identification and scrutiny of any use of Tasers in a mental health setting.
I expect this additional scrutiny to lead to all relevant policing and health partners working closely to look at the full circumstances surrounding police officers being called to attend, the specific circumstances of any use of Tasers, and the lessons they can learn for the future.
As I have said, the Government and police believe that a blanket ban on the use of Tasers in psychiatric settings risks the safety of the police, hospital staff and patients. That said, I agree that more should be done to ensure that any use of Tasers in such circumstances is open to effective scrutiny. That is an important point.
The amendment tabled by the noble Lord, Lord Rosser, goes rather wider in seeking a review of all police use of Tasers—not just in mental health settings. As I just explained, the Government are committed to ensuring that the police use their powers and tools proportionately and are keen that all use of force by the police—including Tasers—be recorded and published.
The benefits of the planned new data collection system will be to enable the police and others to review practice in certain locations, against certain groups, and so on. This will enable deeper examination of the reasons for the use of force and inform adjustments needed to guidance, policy and authorised professional practice, if any. We have asked the police and others to ensure that this happens and, on that basis, I hope the noble Baroness feels able to withdraw her amendment.
Baroness Walmsley
My Lords, I thank the Minister for her reply and the noble Lords, Lord Ouseley and Lord Rosser, and my noble friend Lord Paddick for their support. I am sorry that I have been unable to take the noble Viscount, Lord Hailsham, or the noble Lords, Lord Dear and Lord Harris, along with me. I must say that I felt that in his enthusiasm in making his case, the noble Lord used somewhat unparliamentary language. In 16 years in your Lordships’ House, I have never been called silly before. The amendment was certainly not regarded as silly by the mental health patients who have approached us about the issue.
The noble Baroness mentioned that use should be appropriate, but we have had to move the amendment to highlight the issue today because it seems that “appropriate” has become a lot more frequent. We have heard some figures about the number of times that the police have been called in. At least the noble Lord, Lord Harris, was able at the end of his remarks to agree with me that part of the problem is undoubtedly the lack of sufficient properly trained staff in mental health wards, which needs to be addressed.
We will think carefully about what has been said on all sides of the argument between now and Report, but, for the moment, I beg leave to withdraw the amendment.
Baroness Walmsley
“Child sexual exploitation: duty to refer
(1) Where the police have a reasonable belief that a child has been sexually exploited or subject to other forms of child abuse, the police must refer the child to a named mental health service. (2) The Secretary of State must by regulations define “named mental health service” for the purpose of this section.”
Baroness Walmsley
The amendment is intended to ensure that children who have been abused or sexually exploited are made known to mental health services in their area. It is beyond the scope of the Bill to mandate what happens next, but it is inconceivable that services to which the child is referred should not provide the necessary assessment and therapeutic services.
However, we know that many thousands of children who have been abused sexually and otherwise have not received any help, despite the fact that up to 90% of children who have been sexually abused develop mental health problems before they are 18. Recent NSPCC and Children’s Society research has highlighted that abused children are not routinely getting access to the mental health and therapeutic support they need. They found that traumatic experience of abuse on its own rarely triggers therapeutic support, with abused children reaching high clinical thresholds for services only when they have severe mental health issues and are at crisis point.
Evidence from the Children’s Society report, Access Denied, said that despite abuse being a major risk factor for mental health issues, less than half of mental health trusts identify children who have experienced sexual exploitation in referral and initial assessment forms, and only 11% of trusts fast-track access to CAMHS for this group. Only 14% of local transformation plans for children’s mental health contained an adequate needs assessment for children who have been abused or neglected, and one-third of plans do not mention services to meet the needs of such children at all. Identifying young people who experience sexual exploitation and their needs in the first place can be a particular challenge.
Since I entered your Lordships’ House 16 years ago, I have attended many presentations and seminars, but one sticks in my mind from my very first months here. It was with the NSPCC, highlighting the lack of therapeutic help for abused children. Here we are, 16 years later, talking about the same thing, despite all the efforts of my right honourable friend Norman Lamb MP to get more funding for CAMHS.
This morning, I attended the 30th birthday party of ChildLine, and I was discussing the amendment with Esther Rantzen. She, of course, supports it, but she made another relevant point, which was that although ChildLine often refers children to the police—with their permission—it is rarely the other way round. The point is that if the police are having difficulty getting a child to disclose to them about suspected sexual abuse, they should put them in touch with ChildLine, which will not only help them to disclose safely, in the way they should, but will support them through the proceedings that may follow.
The phone number of ChildLine should be on the wall of every police station: 0800 1111. Perhaps this would also remind police to refer children to their local mental health services for an assessment. They know they should, but they do not always do it. That was admitted this morning on Radio 4’s “Today” programme, when Sarah Champion MP, a great champion for abused children, and a senior police officer, discussed this very thing. Although it was accepted that the police’s attitude to abused children has improved enormously, it was admitted that there is still some way to go.
There is an opportunity through the Bill to pursue the recommendations set out in Future in Mind: that sexually abused or exploited children receive a comprehensive specialist initial assessment and a referral to appropriate services, which can provide evidence-based interventions according to their need. Where victims of child sexual exploitation come into contact with the police or a local authority, the Bill provides an ideal opportunity to state in law that the police must refer them for a psychological assessment, and then we must rely on providers to give them the support they need to recover.
These children are going to cost the NHS a great deal of money unless we act promptly. A report from Public Health Wales this week found that people who have been abused in childhood are three times as likely to contract a serious illness later in life. The Government must see the amendment as prevention of a great deal of expenditure later, and accept it tonight. I call on them to do so and beg to move.
Lord Paddick
My Lords, I rise very briefly to support my noble friend Lady Walmsley’s amendment, to which I have added my name. It seems absolute common sense that, if the police are investigating an allegation that a child has been sexually exploited, the needs of the child should be paramount and that referral to appropriate support for the child should be compulsory in those circumstances. I feel that I really need say no more than that.
Baroness Benjamin (LD)
My Lords, I too rise to support my noble friend Lady Walmsley. We were both on the Barnardo’s inquiry led by Sarah Champion. When we spoke to abused children, both boys and girls, they all said that they wanted to be treated with respect by the police. I second my noble friend on all the issues that she has brought up and I support her in every way. I hope that the Government will have common sense and show that childhood lasts a lifetime and those children’s needs will be looked after, making sure that they do not suffer long-term in the future.
Lord Harris of Haringey
My Lords, I am slightly surprised in fact that it is necessary for the noble Baroness, Lady Walmsley, to move this particular amendment, but the fact that she has moved it means, I assume, that it is necessary. It should be—in the same way as it is incumbent on other professionals—that when the police see an issue that requires the safeguarding and protection of a child, they should take the appropriate action, which, in this particular case, would mean the sort of referral envisaged by this amendment. So on this occasion I wholeheartedly support the noble Baroness.
Lord Kennedy of Southwark
My Lords, Amendment 195, moved by the noble Baroness, Lady Walmsley, and also in the name of my noble friend Lord Rosser and others, would ensure that child victims of sexual abuse receive the mental health support that they need and would address the fundamental problem that, as things stand, victims too often have poor access to the support that they need. The Bill makes welcome provisions in the area of mental health—including by ending the detention under the Mental Health Act 1983 of young people in police cells—but it could go further, in particular, in recognising the mental health needs of children who have been victims of child sexual exploitation.
NSPCC research shows that children who have been abused are more likely to experience depression, anxiety and symptoms of post-traumatic stress disorder as well as self-harming and suicide. The cases of 30 children supported by the Children’s Society were analysed in its report Old Enough to Know Better?—a third of the cases noted that the young people needed mental health services because of concerns about their well-being, including self-harming episodes, suicide attempts or even episodes of psychosis that required in-patient admissions. The remaining cases also referred to the young people feeling low, depressed, anxious, fearful, or having flashbacks of their abuse. I think that the Government should accept this amendment from the noble Baroness this evening.
Amendment 221 in this group is in the name of my noble friend Lord Rosser. It would place in the Bill a duty for police forces to disclose information about children who are victims of sexual exploitation or other forms of abuse to the relevant health service commissioners. This is an important requirement to ensure that victims of exploitation can have access to the health services that they need.
Baroness Williams of Trafford
My Lords, I am grateful to the noble Baroness, Lady Walmsley, the noble Lord, Lord Kennedy, and the noble Baroness, Lady Benjamin, for their explanation of the amendments. We appreciate that their intention is to ensure that the proper provision is made for vulnerable or traumatised children. We absolutely agree that we must ensure that such children never fall through the gaps between services, but I put it to the noble Baroness, Lady Walmsley, that the overriding determinant of referral for health services must be clinical need. Not all children and young people who have been abused or exploited will develop a mental health problem, and intervening unnecessarily or inappropriately can in itself be harmful.
All that said, it is essential that healthcare practitioners who work with abused children and young people should have the capacity and capability to provide evidence-based treatment where needed. This will be addressed through the emerging workforce strategy, which is being put in place to deliver the key proposals in the Department of Health report on children’s mental health. The Department of Health is also introducing routine procedures so that sensitive inquiries are made to establish whether a child undergoing a mental health assessment has experienced neglect, violence or abuse. This will be an important step towards establishing a child’s or young person’s need for support. The important thing is that children and young people get the right care at the right time, based on their needs, not on a non-clinician’s view of their potential needs based on their experiences.
On amendment 221, it is worth adding that individuals, including children where appropriate, need to consent to receive treatment. Where a person indicates that they would like to avail themselves of any referral, consent can be sought for relevant personal details to be passed to the health provider, which is the proper course of action. It would be likely to be inappropriate, and in breach of data protection, automatically to pass on personal details and potentially sensitive information, even to a health provider. It may be helpful for noble Lords to know that NHS England published a Commissioning Framework for Adult and Paediatric Sexual Assault Referral Centres (SARC) Services in August 2015, which outlines the core services in SARCs and referral pathways to other services. They are now being rolled out throughout England.
On the basis of my remarks, I hope that the noble Baroness feels content to withdraw her amendment.
Baroness Walmsley
My Lords, I thank the Minister, though I hardly know where to start. I know that I want to keep my remarks short, as those here for the dinner-hour debate are waiting.
The Minister suggested that not all young people who have been abused require therapeutic help. Bearing in mind the figures that I gave at the beginning of my speech, we will not really know which 10% will not develop mental health problems unless we get them properly assessed. I may have used the wrong word—“refer”—in my amendment, but the point I am trying to make is that the police must ensure that the appropriate mental health commissioners in the area are made aware that a child may need therapeutic help and that an assessment should be done by a qualified person to find out whether they do. That is absolutely essential.
The fact is, we know that it is not always happening and that is why, as the noble Lord, Lord Harris, accepted, I felt it necessary to raise this, and I am not the only one. As I say, ChildLine also very much feels that this would be helpful.
Given the effect on the rest of the lives of these children, as my noble friend Lady Benjamin mentioned, a little bit of over-referral would not necessarily be a bad thing, because it will soon come out in the wash. If they do not need any help, it will soon be found out and the help will stop if it is not needed. The National Health Service is not going to give a whole lot of help to people who do not need it—it does not have the money. But the fact is that most of them do need it and it is not happening. After 16 years, I cannot believe that we are still here.
I will of course consider what the Minister has said and make further inquiries between now and Report stage in case it is not necessary, although I think it is. For the moment, I beg leave to withdraw the amendment.
Policing and Crime Bill
Wednesday 2nd November 2016
(9 years, 6 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 55-III(a) Amendments for Committee, supplementary to the third marshalled list (PDF, 64KB) - (1 Nov 2016)
“( ) a designated NCA officer who is authorised by the Director General of the National Crime Agency (whether generally or specifically) to exercise the powers of a law enforcement officer under this Chapter, or”
Baroness Chisholm of Owlpen (Con)
My Lords, government Amendments 196, 199, 200 and 201 are essentially consequential on the provisions in Clause 138 which enable the director-general of the National Crime Agency to designate NCA officers with the powers of general customs officials. The amendments clarify that NCA officers so designated are able to exercise the new maritime enforcement powers in the same way as NCA officers designated with the powers of a constable. As a result, these important new powers will be available to NCA officers investigating customs matters such as the smuggling of drugs and firearms. I beg to move.
Lord Rosser
“( ) The Secretary of State must, before making regulations under subsection (3)(g), consult such persons as the Secretary of State considers appropriate.”
Lord Rosser (Lab)
We have two amendments in this group to which I wish to speak. Clause 82 relates to the application of the maritime enforcement power and the designation of those law enforcement officers who may exercise that power. Clause 82(3) lists a number of persons who are law enforcement officers for the purposes of Chapter 5, while subsection (3)(g) designates as a law enforcement officer,
“a person of a description specified in regulations made by the Secretary of State”,
thus creating an unspecified category of person who can be designated as a law enforcement officer, but it leaves that further designation to secondary legislation. Why is this provision in Clause 82(3)(g) needed? What kind of currently unspecified category of person is the Government of the view may need to be designated as a law enforcement officer but cannot be so designated clearly and specifically on the face of the Bill?
The purpose of the first amendment in the group is to make sure that the Secretary of State will at least be required to consult prior to making such a regulation designating an as-yet unspecified person as a law enforcement officer who can exercise the maritime enforcement power. The second amendment is similar and refers to Clause 94, which also relates to the application of the maritime enforcement power and the designation of those law enforcement officers who may exercise the power. Subsection (3) lists a number of persons who are law enforcement officers for the purposes of Chapter 6. However, subsection (3)(e) designates as a law enforcement officer,
“a person of a description specified in regulations made by the Secretary of State”.
Again, why is this provision in Clause 94(3)(e) needed? What kind of currently unspecified category of person is the Government of the view may be needed to be designated as a law enforcement officer but cannot be so designated clearly and specifically on the face of the Bill? Clause 94 also has application in Scotland, but as currently worded contains no requirement for the Secretary of State to consult, for example, Scottish Parliament Ministers. Perhaps the Government could comment on that. The purpose of our second amendment in the group is again to make sure that the Secretary of State would at least be required to consult prior to making a regulation designating an as-yet unspecified person as a law enforcement officer who can exercise the maritime law enforcement power.
Perhaps I may also raise a question about the application of the maritime law enforcement powers by law enforcement officers or indeed by the Secretary of State. Clause 82 creates maritime enforcement powers in relation to, among other things, foreign ships in any waters, and Clause 86 gives law enforcement officers the power to,
“require the ship to be taken to a port in England and Wales or elsewhere and detained there”.
Why is the reference to “or elsewhere” included, which could cover anywhere else in the world? This power could presumably be used in cases involving foreign ships that are discovered, for example, within our territorial waters to contain or are suspected of containing refugees and others in need of international protection who may be in breach of immigration law. Those in need of international protection have a right not to be returned to situations in which they face a real risk of persecution or other ill treatment, and to have their claims for protection fairly determined before they can be returned. On the face of it, the power to which I have just referred could be used to override those rights. Will the Minister say why my analysis of how these powers could be used is incorrect, as I hope it is? I beg to move.
Baroness Hamwee (LD)
My Lords, my noble friend and I have four amendments in the group. With regard to Amendment 196A, the Minister will not be surprised that we always support consultation—well, almost always. I wondered whether “persons” in the amendment, which would follow on from persons who are “law enforcement officers” as provided for in the clause, means human persons and corporate and other bodies, as I would expect. I was a bit surprised during the passage of—I think—the Investigatory Powers Bill that there had to be a definition of “person” at one point. I assume that the sweeping-up provision in Clause 82(3)(g) is to allow for, for instance, the organisation that came to my mind, the Maritime and Coastguard Agency. Even if that is not intended, perhaps I can ask about it and whether it should have powers. Is that in the Government’s mind?
Our four amendments are to Clause 92. Clause 92(1) provides for the Secretary of State to issue a code of practice for law enforcement officers arresting a person under the powers given by the Bill. Clause 92(2) provides that the code must provide guidance as to the information to be given to the person being arrested. We think the code should be wider than this.
Perhaps the most important amendment is the one that would add criteria to be considered by the law enforcement officers before they arrive at a decision to proceed with an arrest. Clearly, this is not something that would be done lightly, but there must be some scope, whether in this code of practice or elsewhere, as to when these very considerable powers should be thought appropriate to exercise. The amendment to Clause 92(1) is similar, in that it would require officers to think before doing, if I can put it that way, as well as thinking when doing.
Our third amendment would provide in Clause 92(8) that regulations requiring an affirmative resolution should apply in the case of a revision of the code, not just the initial code. We would also remove Clause 92(9). Those two amendments would go together and make the same point. We think that this is a sufficiently serious matter that affirmative resolutions would be appropriate.
Lord Harris of Haringey (Lab)
My Lords, I rise notionally to support my noble friend Lord Rosser and his amendment, but first I record that I have recently completed for the Mayor of London a review of London’s preparedness to withstand a major terrorist incident. As part of that review I looked at the policing of the River Thames. I became aware of a lacuna—or at least what I understood to be a lacuna—that appeared to exist in the legislation, which these clauses fill and deal with by making it possible for police to stop and search boats on the River Thames. I was therefore delighted to see it. My recommendations on that were couched in those terms.
However, it appears that it is possible for anyone to sail up the River Thames without having any licence or even permit, which seems an extraordinary gap. While we were tidying up some of these matters, I would have thought it useful to tidy up precisely that one. Given that one is expected to have a licence to drive a car, with the car being required to be of a certain standard, it is surprising that there is no such requirement for sending a boat up the Thames.
I come to the specific question that I wanted to ask the Minister—she can answer the first one if she wishes. An hour and three-quarters ago, I received an email from Nigel—I suppose that I am taking a leaf out of the book of my right honourable friend the leader of the Opposition here. Nigel said:
“I’m an old retired police officer”—
so he must have been there with Brian—
“and I may be out of date but back in 1967 when I joined The Met, one bit of legislation they kept drumming into us was Sec 66 of The Metropolitan Police Act and it read police may stop, search and detain any vehicle, vessel, boat, cart or carriage in or upon which anything stolen or unlawfully may be found”.
At what point in the various reorganisations of London government and policing legislation was Section 66 of the Metropolitan Police Act repealed or changed? It may still be there, in which case what does this provision add to it? The Minister may not have that information immediately available in her brief, so I would be quite happy to receive a note at a later stage.
Lord Paddick
Section 66 of the Metropolitan Police Act was repealed on the basis of the powers to stop and search under the Police and Criminal Evidence Act. The earlier powers were superseded, so it was decided that Section 66 was no longer necessary.
Baroness Chisholm of Owlpen
Well, my Lords, it just shows how marvellous this House is. We have experts who can always answer the questions for us, which is an enormous help.
As the noble Lord, Lord Rosser, explained, Amendments 196A and 200A relate to the power, by regulations, to add to the list of law enforcement officers who may exercise the new maritime enforcement powers in Chapters 5 and 6 of Part 4 of the Bill. Clause 82(3) defines “law enforcement officers” in England and Wales for the purpose of exercising the maritime powers. This includes provision for the Secretary of State to specify in regulations other categories of person who may be allowed to exercise these powers. Clause 94(3) makes equivalent provision for Scotland. The proposed amendments would require the Secretary of State to consult prior to making such regulations.
The noble Lord, Lord Rosser, mentioned foreign ports. Ports in foreign countries are included. Maritime powers can be exercised in international and foreign waters all over the globe. It is a practical and operational necessity that those exercising such powers should be able lawfully to divert a ship to a port and detain it there where the operation in question takes place hundreds or thousands of miles away from England and Wales. I can assure the noble Lord, Lord Rosser—
Lord Rosser
My concern was that “or elsewhere” might be used in cases involving foreign ships which are discovered within our territorial waters to contain, or are suspected to contain, refugees and others in need of international protection who might be in breach of immigration law but who nevertheless have certain rights which, on the face of it, could be overridden if there was a power to divert ships to a port elsewhere—indeed, anywhere in the world. It could mean them being sent back to a place where they would be in danger. It would also mean that they would not have had the right to have their claim for protection fairly determined before they could be returned. The question I was asking is, was my interpretation of the apparent power in the Bill for a law enforcement officer or the Secretary of State to be able to do that correct? If it was not correct—and I said I hoped it was not correct—will the Government explain to me why my analysis was not right?
Baroness Chisholm of Owlpen
My Lords, inspiration has appeared from over my left shoulder. The maritime provisions of the Bill are strictly intended to enable enforcement officers to prevent, detect, investigate and prosecute offences under the law of England and Wales. Any decision to divert a foreign ship that is not in UK territorial waters to a foreign port will require the authority of the Secretary of State. These powers are not intended to be used in a way which is contrary to the Human Rights Act, the 1951 refugee convention or the 1967 protocol.
I can assure the noble Lord, Lord Rosser, that the Home Secretary will consult appropriately before making any such regulations. Such consultation will certainly include any person or body to be specified in the regulations and, in relation to any regulations to be made under Clause 94, the Scottish Government. Indeed, there is an implied duty to consult the Scottish Government and more in Clause 94(6), which requires Scottish Ministers to consent to any regulations under Clause 94(3)(e), which makes devolved provision. Having stated our intention to consult on any such regulations, I hope the noble Lord will agree that it is not necessary to set this out in the Bill.
Amendments 196C, 196D, 197 and 198 relate to Clause 92, which imposes an obligation on the Secretary of State to provide a code of practice for law enforcement officers who use the power of arrest conferred by Clause 88. This code must provide guidance on the information—for example, procedural rights to be given to a person at the time of their arrest. Amendments 196C and 196D seek to amend Clause 92 to extend the scope of the code of practice so that it also addresses the matters which a law enforcement officer must have regard to when considering making an arrest under the maritime powers. We believe that the proper focus of the code is on the information that should be provided to a suspect at the point of arrest, including in relation to their procedural rights. Importantly, the provisions in the Bill in respect of the code of practice closely mirror those in the Modern Slavery Act 2015 and it would be confusing to law enforcement officers to adopt a different approach here.
The power of arrest, like other powers under the maritime provisions, is clearly set out in the Bill. For example, Clause 88 is clear that the power of arrest may be exercised where an enforcement officer has reasonable grounds to suspect that an offence under the law of England and Wales has been, or is being, committed. It will be down to the knowledge, experience and professionalism of the officers concerned as to whether the use of the power is both necessary and appropriate for the purpose of preventing, detecting, investigating and prosecuting offences. The priority for enforcement officers who have apprehended a person on a vessel at sea will be to bring them back to the UK, where they will be processed under PACE in the usual way.
Amendments 197 and 198 relate to the parliamentary procedure for bringing codes of practice into force. The Bill makes provision to bring a new code of practice into law through the affirmative procedure. However, Clause 92(9) provides a choice of procedure for any subsequent revisions to the code. This enables the right level of scrutiny to be provided, proportionate to the revisions being made to the code. For minor or consequential changes the affirmative procedure would, we believe, be disproportionate. Insisting on the affirmative procedure in all cases could cause unnecessary delays in revising the code, with the result that the code would remain out of date in operational terms for longer than necessary. Amendments 197 and 198 would remove this choice, requiring both the first draft of a new code of practice and any revisions to go through the affirmative procedure.
The Delegated Powers and Regulatory Reform Committee recommended in its report on the Bill of 13 July that when using Clause 92(9), the Minister should be,
“bound by the views of the House of Commons Home Affairs Select Committee”.
This is similar to the procedure used for revisions to codes of practice for the Police and Criminal Evidence Act 1984. My noble friend’s letter of 7 September to the noble Baroness, Lady Fookes, chair of the Delegated Powers Committee, accepted that recommendation, so the choice of procedure provided by Clause 92(9) will be exercised with reference to the views of the Home Affairs Select Committee. We believe that this will provide the best approach to ensuring that the appropriate level of scrutiny is provided for any changes to the code.
I hope I have been able to satisfy noble Lords that these amendments are not necessary and that accordingly the noble Lord, Lord Rosser, will be content to withdraw his amendment.
Lord Rosser
I certainly will withdraw the amendment. Unless I was not paying as much attention as I should have been—and I accept that that is a genuine possibility, and I mean that—I am not sure that I got an answer to the question: what kind of current unspecified category of persons do the Government believe may need to be designated as a law enforcement officer that cannot be so designated clearly and specifically now in the Bill? That related to both Clause 82(3)(g) and Clause 94(3)(e).
The only other point I would ask for clarification on, which comes back to the question I raised about how the powers could, on the face of it, be used to override the rights of those in need of international protection, is whether in giving the Government’s response the Minister said that it was not intended that the powers be used to override the rights of those in need of international protection, or that they would not be used in that way. The latter is rather firmer than a statement of intent.
Baroness Chisholm of Owlpen
On the noble Lord’s first point, these powers are necessary to enable the categories of law enforcement officer who may exercise these maritime enforcement powers to be extended in the light of changing operational requirements. For example, both the Criminal Justice (International Co-operation) Act 1990 and the Modern Slavery Act 2015 confer powers on Armed Forces personnel and there may be an operational case for extending the powers in this Bill to such personnel in future.
Lord Rosser
Is there any clarification—or perhaps the Minister could write to me subsequently—of what was said in relation to the apparent ability to override the rights of those in need of international protection through the facility to divert a ship to a port elsewhere, or indeed anywhere in the world? Was the response that it was not intended that that power should be used to override those rights, or was it a clear statement that it would not be used to override those rights?
Lord Rosser
I thank the Minister very much indeed. I beg leave to withdraw the amendment.
Lord Paddick
“Exercise of maritime enforcement powers
(1) The maritime enforcement powers may be exercised only in the event that there are reasonable grounds to suspect that an offence has been committed which is—
(a) an indictable offence under the law of England and Wales; and(b) included in a list of offences specified by the Secretary of State in regulations made by statutory instrument.(2) A statutory instrument containing regulations under subsection (1) may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.”
Lord Paddick
My Lords, Amendment 196B is in my name and that of my noble friend Lady Hamwee. As we have just been discussing, Chapter 5 of the Bill gives extensive powers to law enforcement officers in relation to maritime enforcement—not just in British territorial waters and not just British vessels but far more extensively—including the power in Clause 86(1) to stop, board, divert and detain the ship,
“if a law enforcement officer has reasonable grounds to suspect that … an offence under the law of England and Wales is being, or has been, committed”.
The amendment seeks to probe whether the powers are intended to apply if a law enforcement officer suspects that any offence whatever has been committed. For example, if two crew members are involved in a fight, could these powers then be used,
“to stop, board, divert and detain”,
the ship? That would appear rather disproportionate. While two crew members having a fight might not be considered a good example, stranger things have happened at sea, apparently. The amendment works on the basis that imitation is the sincerest form of flattery. It takes its wording from proposed new Section 137B by restricting enforcement powers to “indictable” offences only, and only those offences specified in regulations by the Secretary of State. I beg to move.
Baroness Chisholm of Owlpen
My Lords, as the noble Lord, Lord Paddick, has explained, Amendment 196B seeks to limit the exercise of the new maritime enforcement powers by the police to suspected offences which are “indictable” and specified in the regulations made by the Secretary of State. He indicated that the intention is to limit the use of these powers to serious crimes, so as to ensure a proportionate response to crime that takes place in the maritime context. I do not believe it necessary to limit these powers in this way.
In other contexts the noble Lord, Lord Paddick, has argued that we should put our trust in the operational judgment of chief officers. This is one such area where we should adopt that principle. We should trust in the operational judgment of the police to determine when it is appropriate to commit resources to investigate an offence on a vessel at sea. It is perhaps highly unlikely that resources would be committed to interdicting a vessel for the purposes of investigating a minor summary-only offence, but we should not rule out the possibility that the police would want to exercise these powers in relation to an either-way offence. We do not impose restrictions on the categories of offences that the police can investigate where they take place on other modes of transportation, so I am unclear why we should treat maritime vessels any differently. For these reasons, I ask the noble Lord to withdraw his amendment.
Lord Paddick
I am grateful to the Minister. The reason why this should apply in the case of these maritime powers is that the potential impact of diverting a cargo vessel in the English Channel, for example, is quite significant. While I may have suggested in other contexts that the number of ranks in each police force should be left to the judgment of chief officers, I do not think that the chief constable of whichever force it is will be making the decision as to whether to divert a ship; it will be an officer of relatively junior rank. The Minister also says that the Government should not be restricting the powers to particular offences, in which case I would ask her to explain why proposed new Section 137B does exactly that. But at this stage, I beg leave to withdraw the amendment.
““designated NCA officer” means a National Crime Agency officer who is either or both of the following—(a) an officer designated under section 10 of the Crime and Courts Act 2013 as having the powers and privileges of a constable;(b) an officer designated under that section as having the powers of a general customs official;”
“( ) a designated NCA officer who is authorised by the Director General of the National Crime Agency (whether generally or specifically) to exercise the powers of a law enforcement officer under this Chapter, or”
““designated NCA officer” means a National Crime Agency officer who is either or both of the following—(a) an officer designated under section 10 of the Crime and Courts Act 2013 as having the powers and privileges of a constable who is entitled to exercise the powers and privileges of a Scottish constable (see paragraph 11(3) to (5) of Schedule 5 to that Act);(b) an officer designated under that section as having the powers of a general customs official;”
Earl Attlee
“General regulation of construction, use etc
In section 44 of the Road Traffic Act 1988 (authorisation of use on roads of special vehicles not complying with regulations under section 41), after subsection (3) insert—“(4) Any order made under this section must—(a) make provision for the notification by an abnormal load haulier to the relevant Chief Constable to be able to be made by data sentence transfer as well as hard copy, e-mail or fax, and(b) make it clear that the relevant Chief Constable to be notified cannot insist on a notification being made using a particular piece of software.””
Earl Attlee (Con)
My Lords, the Committee will recognise that there are legal limits regarding the size and weight of heavy good vehicles operating in the UK. What therefore happens if industry needs to move an abnormally heavy or wide load which, without undue risk or expense, cannot be subdivided into smaller compliant loads? The Secretary of State can make an order under Section 44 of the Road Traffic Act 1988 relaxing all or some of the requirements in the construction and use regulations. Since time immemorial this has been done by an SI known as a special types general order—STGO. STGOs cover the majority of industry’s requirements, and I have an interest that I will come to in a moment.
The Committee will not be surprised to hear that STGO has significant provisions for notification of most proposed movements under STGO to the relevant police, highways and bridge authorities. DfT started extensive work on the current STGO in the early 1990s. STGO is drafted so that notifications have to be made in writing, not by telephone. At the time, realistically the only way of making a notification was by letter or fax. It was only much later that notifications started to be made by email, and online activity was in its infancy. STGOs were drafted taking into account the available technology at the time. There were numerous difficulties. Faxes could get lost, and it was difficult to ensure that all authorities were actually faxed. There are a very large number of relevant bridge and highways authorities, and not all are obvious.
A few years ago, to address these problems and others, Cascade Software developed software called AbHaulier to help operators plan their routes and make notifications. I should state that I have no previous involvement with Cascade, other than receiving a briefing at a trade association meeting. The Highways Agency, now Highways England, developed its own system called Electronic Service Delivery for Abnormal Loads—ESDAL. This system allows operators to plan their route and then make all the necessary notifications. I will not weary the Committee with a full description of the functionality of either system.
It is here that I should declare my interest as I own and operate a tank transporter, used under STGO, in conjunction with the REME Museum. Nowadays, I use ESDAL to make all my notifications. While the system still has some glitches, it is pretty good. For a repeat movement, I can now make a notification for an 80-mile journey in about seven minutes. I would like to comment on the ESDAL helpline and its staff. It is really very good and a credit to Highways England and the previous Labour Government who must have agreed to the expenditure. There is debate within industry about which system is better, and I suspect that there are pros and cons for each.
However, apparently Merseyside Police is insisting that operators cannot email notifications and that they have to either use ESDAL or post—I should point out that there is no prospect of me ever having to make a notification to Merseyside Police. This means that hauliers cannot use the Cascade AbHaulier system.
Not only do ESDAL and other systems generate email notifications in the prescribed format but ESDAL has additional functionality for the notifiable authorities, including the police. For instance, in the case of Merseyside Police, rather than manually sorting through a large number of email notifications, only a small proportion of which are of interest and concern, it can now use ESDAL to set filters so it can properly prioritise its activity. I understand from the Minister’s officials that the labour savings in this one force alone are considerable, and of course there are many forces. However, some in the industry claim that ESDAL is slow and takes more time for operators, which costs them money. However, I am deeply concerned that the Merseyside Police action is ultra vires, and might also have an adverse effect on competition and innovation, because it would put Cascade and any other software house in a weak position.
Lord Kennedy of Southwark (Lab)
I think the noble Earl raises an interesting point—I feel that I have learned something. I am not convinced that the amendment should be in the Bill; it is the sort of thing that should be sorted out in guidance or in a letter to the various police forces. If the noble Earl is right, it should be sorted out quite simply.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, I begin by declaring that I am not the owner of a tank-carrying vehicle and I therefore hope that I speak from a neutral point of view.
I am grateful to my noble friend for his explanation about abnormal loads and, in particular, the electronic service delivery for abnormal loads, or ESDAL. It is a government-funded portal built for this purpose and free to use. However, some hauliers prefer to use other methods of transmission, as he pointed out, such as fax, email, hard copy or proprietary software.
The decision on which methods to accept lies with individual chief constables. As my noble friend is aware, the provisions for use of abnormal loads are laid out in the Road Vehicles (Authorisation of Special Types) (General) Order 2003, to which he referred. Schedule 5 to the order, which deals with notices to police states:
“The Notice must be in a form acceptable to the recipient and should be agreed by both parties.”
Commercial software owners and hauliers may argue that a chief constable is not complying with the 2003 order if he or she limits the methods for accepting the notification and the haulier does not agree. However, the order makes it clear that the form of notification must be acceptable to the recipient and there is very good reason for that requirement. Obliging chief constables to accept notification in all the forms proposed in the amendment could have negative practical and resource implications for the police. Moreover, as a matter of principle, it would not be appropriate to intervene in operational matters in this way.
I also suggest to my noble friend that this is not an appropriate matter for primary legislation, given that the Secretary of State already has the power to amend the detailed provisions laid out in Schedule 5 to the 2003 order.
Notices to road and bridge authorities are covered separately in Schedule 9 to the 2003 order. Again, it does not specify the form the notice should or could take, but states that it must be acceptable to the authority to which it is to be given and should be agreed by both parties. So a bridge or highway authority would not be obliged to accept email notification generated by ESDAL if it was not reasonably acceptable to it.
My noble friend asks about the consequences of an operator notifying a police force by a means which is not accepted by the recipient. It is a condition of an operator obtaining authority to transport an abnormal load that it notifies the police in accordance with Schedule 5. If it provides notification in a form which it has been informed is not acceptable to the recipient, it would be difficult for it to claim to have met the conditions set out in the 2003 order.
If an operator has not met these conditions, it will not be authorised to use on the road a vehicle that does not,
“comply in all respects with the standard construction and use requirements”.
On that basis, if it were to proceed with an abnormal load movement on a road, it would be committing an offence under the Road Traffic Act 1988. I know that my noble friend will have hoped for a rather different response, but I hope that, having had this opportunity to debate this issue, he will be content to withdraw his amendment.
Lord Kennedy of Southwark
Before the noble Baroness sits down—and I should say that I am not the owner of a tank either—I do not see why it can be said that an electronic means of communication in the 21st century is an unreasonable way of giving this type of notice. Something like this cannot be beyond the wit of man to sort out. If we are just going to rely on the post it really is not a very efficient way of doing things.
Baroness Williams of Trafford
What I have said is that the order specifies that the notice must be in a form that is acceptable to the recipient. If the recipient—Merseyside Police, for example—insists that it is an online application, then that is the form in which it is acceptable. But it should be agreed by both parties—in other words, it is not “must” but “should”.
Lord Kennedy of Southwark
Are we saying that it would be acceptable if they insisted on receiving only a letter? That seems ridiculous in the 21st century.
Baroness Williams of Trafford
No, an online application may be acceptable, an email may be acceptable, pigeon post may be acceptable—but it has to be acceptable to the recipient.
Earl Attlee
My Lords, my first question for my noble friend the Minister is, why is an email not acceptable?
Baroness Williams of Trafford
My Lords, it has to be acceptable to the recipient—an email may not be acceptable to the recipient. The order says that it should be acceptable to the recipient.
Earl Attlee
My Lords, it rather seems as if my noble friend cannot explain to the Committee why it is acceptable for the police to say that they will not accept an email notification. It is an extremely reliable system of communication with a good audit record. I think some inspiration might be coming from the Front Bench so I shall sit down.
Baroness Williams of Trafford
I think what is coming from my left is probably what I was going to say anyway, which is that it is entirely a matter for Merseyside Police, for example, on which method it accepts. It is an operational decision for the chief constable.
Earl Attlee
I thank the Minister for that reply but she seems to be struggling on the point of why a police force can say that it will not take an email. I think that Ministers need to be rather careful about teasing noble Lords when they declare an interest; it is vital that we can declare an interest in an issue without being teased by Ministers. This is the second time on this Bill that I have been teased by Ministers regarding declaring an interest.
I want to make it clear to the Committee that I tried to avoid even tabling this amendment, because I knew that it would involve a lot of work within both the Department for Transport and the Home Office. Unfortunately, I could not encourage the Government to deal with this matter offline. That is why I had to table an amendment and speak to it in your Lordships’ House.
The Minister said that the police force can determine what the form should be—how the notification is laid out and whether the width and the weight are described. It does not say in the STGO what the means should be, only the form—what it looks like when it comes out of the fax machine or in the email—but not the means. I am not convinced that the system is watertight.
Baroness Hamwee
My Lords, I cannot say that I have followed every detail of this, but the noble Earl seems to be complaining that the Minister is not the recipient. He is putting the burden on the shoulders of the Minister, but she has explained that it is a matter for the recipient as to what form will be acceptable. Is the question not whether the Minister will accept that it should be email but that the regulations should be reconsidered as to whether they say something different?
Earl Attlee
The noble Baroness is absolutely right: the underlying problem that I tried to explain in my poor way is that the STGO is out of date and does not take into consideration modern means of communication. It does not mention email and certainly does not consider doing things online. It is completely silent on that. Sadly, it seems that the Government want to wash their hands of this and allow bodies such as Merseyside Police to try to become more efficient but without giving them the tools to do so, and leaving them vulnerable to all sorts of legal difficulties and upsetting operators. I have done the best I can with this issue. I do not intend to return to it. It sounds as if industry will have to battle it out itself.
Baroness Williams of Trafford
I apologise to my noble friend. I was attempting to be self-deprecating rather than teasing him. I hope that he did not get that impression.
“(A1) In section 137A, “specified offence” has the meaning given by this section.(A2) An offence committed in England and Wales is a specified offence if it is—(a) an offence (including an offence under the common law) that is punishable by virtue of any statutory provision with imprisonment or another form of detention for a term of 10 years or with a greater punishment,(b) an offence specified in Part 1 of Schedule 7A,(c) an offence of attempting or conspiring to commit, or of inciting the commission of, an offence mentioned in paragraph (a) or (b), or(d) an offence under Part 2 of the Serious Crime Act 2007 (encouraging or assisting crime) in relation to an offence mentioned in paragraph (a) or (b).(A3) An offence committed in Scotland is a specified offence if it is—(a) an offence (including an offence under the common law) that is punishable by virtue of any statutory provision with imprisonment or another form of detention for a term of 10 years or with a greater punishment,(b) an offence specified in Part 2 of Schedule 7A, or(c) an offence of attempting or conspiring to commit, or of inciting the commission of, an offence mentioned in paragraph (a) or (b).(A4) An offence committed in Northern Ireland is a specified offence if it is—(a) an offence (including an offence under the common law) that is punishable by virtue of any statutory provision with imprisonment or another form of detention for a term of 10 years or with a greater punishment,(b) an offence specified in Part 3 of Schedule 7A,(c) an offence of attempting or conspiring to commit, or of inciting the commission of, an offence mentioned in paragraph (a) or (b), or(d) an offence under Part 2 of the Serious Crime Act 2007 (encouraging or assisting crime) in relation to an offence mentioned in paragraph (a) or (b).”
“(6) In this section—(a) a description of an offence in subsection (A2)(a) or (b) or (A4)(a) or (b) includes such an offence committed by aiding, abetting, counselling or procuring;(b) a description of an offence in subsection (A3)(a) or (b) includes such an offence committed by involvement art and part or by aiding, abetting, counselling or procuring;(c) “statutory provision” means any provision of—(i) an Act or subordinate legislation within the meaning of the Interpretation Act 1978;(ii) an Act of the Scottish Parliament or an instrument made under such an Act;(iii) a Measure or Act of the National Assembly for Wales or an instrument made under such a Measure or Act;(iv) Northern Ireland legislation or an instrument made under Northern Ireland legislation.”
“(ca) section 31 of the Children and Young Persons Act 1933 (separation of children and young persons from adults in police stations, courts etc);”
“(c) section 51 of that Act (duty to consider child’s well-being);(d) section 52 of that Act (duties in relation to children in custody).”
“(ca) article 9 of the Criminal Justice (Children) (Northern Ireland) Order 1998 (S.I. 1998/1504 (N.I.9)) (separation of child in police detention from adults charged with offences);”
“(a) amend this section so as to add to the provisions that for the time being apply as mentioned in subsection (2), (3) or (4),(b) amend this section so as to remove any of those provisions that were added by virtue of paragraph (a),(c) amend Schedule 7B so as to alter the modifications for the time being made by that Schedule, including by adding a modification or removing one,(d) amend Schedule 7B so as to provide that any of the provisions that for the time being apply as mentioned in subsection (2), (3) or (4) do not apply in cases or circumstances set out in the Schedule.”
“( ) The Secretary of State may not make regulations under subsection (5) unless the Scottish Ministers and the Department of Justice in Northern Ireland consent to the making of the regulations.”
“(2) After Schedule 7 to that Act insert, as Schedule 7A to that Act, the Schedule set out in Schedule 14A to this Act.(3) After Schedule 7A to that Act (as inserted by subsection (2) above) insert, as Schedule 7B to that Act, the Schedule set out in Schedule 14B to this Act.”
“Power to remove disguises
In section 60AA(6) of the Criminal Justice and Public Order Act 1994 (powers to require removal of disguises) leave out “that is not practicable,” and insert “it is not practicable for an authorisation or direction to be given in writing, it shall be”.”
Lord Dear (CB)
My Lords, it is with some trepidation that I drag your Lordships’ attention from the interesting subjects of tank transporters, pigeon post and emails.
Amendment 201SA stands in my name and those of the noble Lords, Lord Donoughue and Lord Campbell of Pittenweem. The noble Lord, Lord Donoughue, has asked me to say that he is not able to speak to the amendment due to the lateness of the hour but he would have done so, as would the noble Baroness, Lady Mallalieu.
The amendment concerns Section 60AA of the Criminal Justice and Public Order Act 1994, which gives the police powers in some circumstances to require the removal of facial disguises. An authorisation is required under that section. The authorisation is strictly time limited, and is specific in many ways, particularly as regards location and time. It gives a power to uniformed police to require the removal of, among other things, masks, balaclavas and scarves if it is suspected that the purpose of wearing those disguises is wholly or mainly to conceal identity. The authorisation gives the police the power to seize those balaclavas et cetera, and provides that any person who fails to remove them when required commits an offence. A police inspector can authorise the removal of those articles if he or she reasonably believes, first, that offences are likely to be committed and, secondly, that the authority to remove them is expedient. It follows from that that one is dealing with demonstrations and prospective incidents of disorder which are foreseen or advertised to the police. The authorisation has to be in writing, has to be signed by the inspector and has to specify all the grounds—locality, period of time and so on—before it is valid. That brings me to the wording of Amendment 201SA, which seeks to remove “that is not practicable” and insert the words printed in the Marshalled List.
Somebody listening to me or reading the amendment may wonder whether it is splitting hairs. In a sense, it is, but there is a reason for that. As I said, the law as it stands deals with anticipated demonstrations—those that are pre-advertised in one way or another. The police know that such a demonstration is going to take place and can take pre-emptive action by issuing an authority in writing. However, there is a problem—and it has been a problem for some years now. It is what is often called, in popular parlance, “flash demos”. These are demonstrations of which the police have had no prior knowledge and which have erupted suddenly and spontaneously—a sort of “hit and run”, if you like. There is no doubt that in some cases the people who organise those flash demos—if I may continue to use that phrase—are working on the presumption that they can organise them because of the growth of communication by social media, which makes it much easier. They also know full well that if the police have no prior knowledge, the numbers of police officers available to deal with that intended disorder are likely to be very few. Those police officers on the street, faced with that sudden eruption of violence or disorder, will be faced with a dilemma. Quite simply, in their terms, if they effect an arrest, those two officers—or one officer or whatever—will go off the scene and then nobody is left to deal with the disorder. So one sees a degree of deliberation behind all this.
The point of the amendment is that there is some confusion at the moment in the minds of the police about whether the Act allows the permission to be written ex post facto—in other words, the police officer at the scene faced with the demonstration will usually use the radio to ask an inspector at the base station for permission—and whether or not it is correct within the existing law for the inspector to give the permission and write it when the officer is already dealing with the situation with which he is confronted.
I think that my amendment has full support; I hope that it has. Certainly there is full support for that change from the police service at the top level. From the police’s point of view, it will clarify their position, give them a degree of certainty and enable a much speedier response to deal with disorder, either impending or actual. I hope that I can say with some certainty that there is support from all around the House. On that point, we shall learn more in a moment. There have been some discussions with officials, who, without any commitment at all, have indicated a sympathy to discuss this further. I ask the Minister to recognise that and, in the light of whatever is said in this Chamber tonight, to consider taking this issue away and bringing back an amendment at a later stage. On those grounds, I beg to move.
Lord Harris of Haringey
My Lords, the noble Lord, Lord Dear, has raised a potentially important issue, and I think he is right to put it in the terms that he has. Particularly with the growth of social media and the very rapid organisation of demonstrations, there may be an issue here that needs to be addressed. Indeed, if the Minister, having thought about it, agrees to take it back and bring forward a proper amendment which addresses all these points at the next level—which I think is the noble Lord’s preferred course of action—there are a number of other issues that perhaps would usefully be addressed at the same time.
We have to be more explicit about what constitutes a disguise and the circumstances in which it happens. You could have a situation in which what would appear to a police officer on the scene as being a disguise might turn out to be a veil worn for religious purposes; or it might turn out to be the fact that it is extraordinarily inclement weather and no sensible people would go out without a scarf wrapped around their face; or it might be that they wear face masks—I have seen this; it is quite common particularly among Japanese tourists, although I am not sure that it is unique—allegedly to protect themselves from the notorious levels of air pollution in our capital city. All I am saying is that the definition of “disguise” that may have seemed to work in the 1994 Act may need to be reviewed and looked at in the context of whether it continues to make sense. There have to be some safeguards with regards to the way in which decisions are taken and recorded, which ensure that the power is not used in any way which could be deemed discriminatory, as that would be extremely unfortunate. I am sure that that is not the intention, but it is important that safeguards are built into this. While the process by which this happens should be able to respond quickly to the sorts of situations that the noble Lord, Lord Dear, outlined, it should also be amenable to ensuring that the power is not misused or used in a way which in retrospect turns out to be highly inappropriate.
The noble Lord, Lord Dear, has identified an issue that should be addressed, but it needs to be developed quite carefully to avoid some potential pitfalls in the future.
Lord Dear
My Lords, can I just put on the record what Section 60AA(2) of the 1994 Act says? To the best of my knowledge, it has not raised any problems in law so far. It says:
“This subsection confers power on any constable in uniform … to require any person to remove any item which the constable reasonably believes”—
those words are a well-known test in law—
“that person is wearing wholly or mainly for the purpose of concealing his identity”.
Lord Kennedy of Southwark
Briefly, I agree with my noble friend Lord Harris of Haringey, that the noble Lord, Lord Dear, has raised an important issue. However, it needs careful consideration for the reasons that my noble friend outlined. I therefore hope that the Minister will agree that the Government will take this away and have a look at this issue. We all want to make sure that the police have the appropriate power, but equally, of course, we should ensure that the proper safeguards are built in so that unintended consequences, which no one would want to occur, do not cause problems as well.
Lord Paddick
My Lords, I did not intend to speak on this matter but the issues the noble Lord, Lord Harris of Haringey, raised, particularly around religious dress, need to be considered very carefully. I bear in mind the scenario that the noble Lord, Lord Dear, presented us with where constables on the street, faced with individuals who they interpret as deliberately trying to conceal their identity, are radioing an inspector for authority who is not at the scene and cannot make that assessment himself or herself. That is potentially difficult. I am not a lawyer and I may have misread it, but my reading of the existing legislation was that it allows for a scenario where written authority could be given contemporaneously with the actions of the officers on the ground. Can the Minister therefore help the House by saying whether the Government think that the amendment is necessary? However, I absolutely accept that flash mobs and spontaneous public disorder are becoming an increasing problem, as we saw in the riots in London only a few years ago, which were driven by social media.
Baroness Williams of Trafford
The noble Lord, Lord Paddick, is right that the permission in writing can be given after the event, but we now find that that is not an ideal situation. On what the noble Lord, Lord Dear, proposes, both national policing leads and others would welcome a clarification on this matter. The noble Lord, Lord Dear, answered the question posed by the noble Lord, Lord Harris, for me, but I will repeat it, as it is important. With regard to removing face coverings for religious reasons, for example, the Act states that when an authorisation is in place, a constable can require a person to remove a face covering only if the constable reasonably believes that the person is wearing the item,
“wholly or mainly for the purpose of concealing his”,
or her “identity”. Of course, it is for individuals to ensure the fair and proportionate use of their powers.
If the noble Lord is content to withdraw his amendment—it sounds as though he is—I will give the matter further sympathetic consideration in advance of Report.
“SCHEDULE 14ASCHEDULE TO BE INSERTED AS SCHEDULE 7A TO THE CRIMINAL JUSTICE AND PUBLIC ORDER ACT 1994“OFFENCES SPECIFIED FOR THE PURPOSES OF SECTION 137APART 1OFFENCES UNDER THE LAW OF ENGLAND AND WALES1_ Any of the following offences at common law—(a) false imprisonment;(b) kidnapping;(c) indecent exposure; (d) cheating in relation to the public revenue. 2_ An offence under any of the following provisions of the Offences against the Person Act 1861—(a) section 20 (inflicting bodily injury);(b) section 24 (administering poison etc with intent);(c) section 27 (exposing child whereby life is endangered etc);(d) section 31 (setting spring-guns etc with intent);(e) section 37 (assaulting an officer etc on account of his preserving wreck);(f) section 47 (assault occasioning actual bodily harm).3_(1) An offence under any of the following provisions of the Sexual Offences Act 1956—(a) section 10 (incest by a man);(b) section 11 (incest by a woman);(c) section 30 (man living on the earnings of prostitution);(d) section 31 (woman exercising control over a prostitute);(e) section 33A (keeping a brothel used for prostitution)._(2) An offence under section 12 of that Act (buggery), other than an offence committed by a person where the other person involved in the conduct constituting the offence consented to it and was aged 16 or over._(3) An offence under section 13 of that Act (indecency between men), where the offence was committed by a man aged 21 or over and the other person involved in the conduct constituting the offence was under the age of 16.4_ An offence under section 4 of the Criminal Law Act 1967 (assisting offenders).5_ An offence under section 5 of the Sexual Offences Act 1967 (living on the earnings of male prostitution).6_ An offence under any of the following provisions of the Firearms Act 1968—(a) section 1(1) (possession etc of firearms or ammunition without certificate);(b) section 2(1) (possession etc of shot gun without certificate);(c) section 3(1) (manufacturing, selling etc firearms or ammunition by way of trade or business without being registered as a firearms dealer).7_ An offence under section 106A of the Taxes Management Act 1970 (fraudulent evasion of income tax).8_(1) An offence under section 50(2) or (3) of the Customs and Excise Management Act 1979 (improper importation of goods), other than an offence mentioned in subsection (5B) of that section._(2) An offence under section 68(2) of that Act (exportation of prohibited or restricted goods)._(3) An offence under section 170 of that Act (fraudulent evasion of duty etc), other than an offence mentioned in subsection (4B) of that section.9_ An offence under section 4 of the Aviation Security Act 1982 (offences in relation to certain dangerous articles).10_ An offence under section 127 of the Mental Health Act 1983 (ill-treatment of patients).11_ An offence under either of the following provisions of the Child Abduction Act 1984—(a) section 1 (abduction of child by parent etc);(b) section 2 (abduction of child by other persons).12_ An offence under section 1 of the Prohibition of Female Circumcision Act 1985 (prohibition of female circumcision).13_ An offence under either of the following provisions of the Public Order Act 1986—(a) section 2 (violent disorder); (b) section 3 (affray). 14_ An offence under section 160 of the Criminal Justice Act 1988 (possession of indecent photograph of a child).15_ An offence under section 2 of the Computer Misuse Act 1990 (unauthorised access with intent to commit or facilitate commission of further offences).16_ An offence under section 72(1), (3) or (8) of the Value Added Tax Act 1994 (fraudulent evasion of VAT etc).17_ An offence under either of the following provisions of the Protection from Harassment Act 1997—(a) section 4 (putting people in fear of violence);(b) section 4A (stalking involving fear of violence or serious alarm or distress).18_ An offence under section 29(1)(a) or (b) of the Crime and Disorder Act 1998 (certain racially or religiously aggravated assaults).19_ An offence under section 38B of the Terrorism Act 2000 (information about acts of terrorism).20_ An offence under section 3 of the Sexual Offences (Amendment) Act 2000 (sexual activity with a person aged under 18 in abuse of a position of trust).21_ An offence under section 35 of the Tax Credits Act 2002 (tax credit fraud).22_(1) An offence under any of the following provisions of the Sexual Offences Act 2003—(a) section 13 (child sex offences committed by children or young persons);(b) section 16 (abuse of position of trust: sexual activity with a child);(c) section 17 (abuse of position of trust: causing or inciting a child to engage in sexual activity);(d) section 18 (abuse of position of trust: sexual activity in the presence of a child);(e) section 19 (abuse of position of trust: causing a child to watch a sexual act);(f) section 40 (care workers: sexual activity in the presence of a person with a mental disorder);(g) section 41 (care workers: causing a person with a mental disorder to watch a sexual act);(h) section 52 (causing or inciting prostitution for gain);(i) section 53 (controlling prostitution for gain)._(2) An offence under section 25 or 26 of that Act (family child sex offences) where the offence is committed by a person under the age of 18._(3) An offence under section 47 of that Act (paying for sexual services of a child), where the offence is committed against a person aged 16 or over.23_ An offence under either of the following provisions of the Terrorism Act 2006—(a) section 1 (encouragement of terrorism);(b) section 2 (dissemination of terrorist publications).24_ An offence under section 45 of the Serious Crime Act 2015 (participating in activities of organised crime group).25_ An offence under section 67 of the Policing and Crime Act 2016 (breach of pre-charge bail conditions relating to travel).PART 2OFFENCES UNDER THE LAW OF SCOTLAND26_ Any of the following offences at common law—(a) culpable homicide;(b) treason;(c) rape;(d) assault, where the assault results in serious injury or endangers life; (e) assault with intent to rape or ravish; (f) indecent assault;(g) abduction with intent to rape;(h) public indecency;(i) clandestine injury to women;(j) lewd, indecent or libidinous behaviour or practices;(k) sodomy, other than an offence committed by a person where the other person involved in the conduct constituting the offence consented to it and was aged 16 or over;(l) abduction;(m) mobbing;(n) fire-raising;(o) robbery;(p) fraud;(q) extortion;(r) embezzlement;(s) theft;(t) threats;(u) attempting to pervert the course of justice.27_ An offence under any of the following provisions of the Firearms Act 1968—(a) section 1(1) (possession etc of firearms or ammunition without certificate);(b) section 2(1) (possession etc of shot gun without certificate);(c) section 3(1) (manufacturing, selling etc firearms or ammunition by way of trade or business without being registered as a firearms dealer).28_ An offence under section 106A of the Taxes Management Act 1970 (fraudulent evasion of income tax).29_(1) An offence under section 50(2) or (3) of the Customs and Excise Management Act 1979 (improper importation of goods), other than an offence mentioned in subsection (5B) of that section._(2) An offence under section 68(2) of that Act (exportation of prohibited or restricted goods)._(3) An offence under section 170 of that Act (fraudulent evasion of duty etc), other than an offence mentioned in subsection (4B) of that section.30_ An offence under section 4 of the Aviation Security Act 1982 (offences in relation to certain dangerous articles).31_ An offence under either of the following provisions of the Civic Government (Scotland) Act 1982—(a) section 51(2) (publication etc of obscene material);(b) section 52 (taking, distributing etc indecent photographs of children).32_ An offence under section 6 of the Child Abduction Act 1984 (parent etc. taking or sending a child out of the United Kingdom).33_ An offence under section 1 of the Prohibition of Female Circumcision Act 1985 (prohibition of female circumcision).34_ An offence under section 2 of the Computer Misuse Act 1990 (unauthorised access with intent to commit or facilitate commission of further offences).35_ An offence under section 72(1), (3) or (8) of the Value Added Tax Act 1994 (fraudulent evasion of VAT etc).36_ An offence under any of the following provisions of the Criminal Law (Consolidation) (Scotland) Act 1995—(a) section 7 (procuring prostitution etc);(b) section 8(3) (unlawful detention of women and girls); (c) section 10 (parents etc encouraging girls under 16 to engage in prostitution etc); (d) section 11(1)(b) (males soliciting etc for immoral purposes).37_ An offence under section 38B of the Terrorism Act 2000 (information about acts of terrorism).38_ An offence under section 35 of the Tax Credits Act 2002 (tax credit fraud).39_ An offence under section 313 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (persons providing care services: sexual offences).40_ An offence under either of the following provisions of the Terrorism Act 2006—(a) section 1 (encouragement of terrorism);(b) section 2 (dissemination of terrorist publications).41_ Any of the following offences under the Sexual Offences (Scotland) Act 2009—(a) section 8 (sexual exposure);(b) section 9 (voyeurism);(c) section 11 (administering a substance for sexual purposes);(d) section 32 (causing an older child to be present during a sexual activity);(e) section 33 (causing an older child to look at a sexual image);(f) section 34(1) (communicating indecently with an older child);(g) section 34(2) (causing an older child to see or hear an indecent communication);(h) section 35 (sexual exposure to an older child);(i) section 36 (voyeurism towards an older child);(j) section 42 (sexual abuse of trust);(k) section 46 (sexual abuse of trust of a mentally disordered person).42_ An offence under either of the following provisions of the Criminal Justice and Licensing (Scotland) Act 2010—(a) section 38 (threatening or abusive behaviour);(b) section 39 (stalking).43_ An offence under section 2 of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016 (disclosing etc an intimate photograph or film).PART 3OFFENCES UNDER THE LAW OF NORTHERN IRELAND44_ Any of the following offences at common law—(a) false imprisonment;(b) kidnapping;(c) riot;(d) affray;(e) indecent exposure;(f) cheating in relation to the public revenue.45_ An offence under any of the following provisions of the Offences against the Person Act 1861—(a) section 20 (inflicting bodily injury);(b) section 24 (administering poison etc with intent);(c) section 27 (exposing child whereby life is endangered etc);(d) section 31 (setting spring-guns etc with intent);(e) section 37 (assaulting an officer etc on account of his preserving wreck);(f) section 47 (assault occasioning actual bodily harm).46_ An offence under section 11 of the Criminal Law Amendment Act 1885 (indecency between men), where the offence was committed by a man aged 21 or over and the other person involved in the conduct constituting the offence was under the age of 16. 47_ An offence under either of the following provisions of the Punishment of Incest Act 1908—(a) section 1 (incest by a man);(b) section 2 (incest by a woman).48_ An offence under section 4 of the Criminal Law Act (Northern Ireland) 1967 (assisting offenders).49_ An offence under section 106A of the Taxes Management Act 1970 (fraudulent evasion of income tax).50_(1) An offence under section 50(2) or (3) of the Customs and Excise Management Act 1979 (improper importation of goods), other than an offence mentioned in subsection (5B) of that section._(2) An offence under section 68(2) of that Act (exportation of prohibited or restricted goods)._(3) An offence under section 170 of that Act (fraudulent evasion of duty etc), other than an offence mentioned in subsection (4B) of that section.51_ An offence under section 4 of the Aviation Security Act 1982 (offences in relation to certain dangerous articles).52_ An offence under Article 8 of the Homosexual Offences (Northern Ireland) Order 1982 (S.I. 1982/1536 (N.I. 19)) (living on the earnings of male prostitution).53_ An offence under section 1 of the Prohibition of Female Circumcision Act 1985 (prohibition of female circumcision).54_ An offence under either of the following provisions of the Child Abduction (Northern Ireland) Order 1985 (S.I. 1985/1638(N.I. 17))—(a) Article 3 (abduction of child by parent etc);(b) Article 4 (abduction of child by other persons).55_ An offence under Article 121 of the Mental Health (Northern Ireland) Order 1986 (S.I. 1986/595 (N.I. 4)) (ill-treatment of patients).56_ An offence under Article 15 of the Criminal Justice (Evidence, Etc.) (Northern Ireland) Order 1988 (S.I. 1988/1847 (N.I. 17)) (possession of indecent photograph of a child).57_ An offence under section 2 of the Computer Misuse Act 1990 (unauthorised access with intent to commit or facilitate commission of further offences).58_ An offence under section 72(1), (3) or (8) of the Value Added Tax Act 1994 (fraudulent evasion of VAT etc).59_ An offence under Article 6 of the Protection from Harassment (Northern Ireland) Order 1997 (S.I. 1997/1180 (N.I. 9)) (putting people in fear of violence).60_ An offence under section 38B of the Terrorism Act 2000 (information about acts of terrorism).61_ An offence under section 3 of the Sexual Offences (Amendment) Act 2000 (sexual activity with a person aged under 18 in abuse of a position of trust).62_ An offence under section 35 of the Tax Credits Act 2002 (tax credit fraud).63_ An offence under section 53 of the Sexual Offences Act 2003 (controlling prostitution for gain).64_ An offence under any of the following provisions of the Firearms (Northern Ireland) Order 2004 (S.I. 2004/702 (N.I.3))—(a) Article 3(1)(b) (possession etc of firearms other than handguns without certificate);(b) Article 3(2) (possession etc of ammunition without certificate); (c) Article 24(1) (manufacturing, selling etc firearms or ammunition by way of trade or business without being registered as a firearms dealer).65_ An offence under either of the following provisions of the Terrorism Act 2006— (a) section 1 (encouragement of terrorism);(b) section 2 (dissemination of terrorist publications).66_(1) An offence under any of the following provisions of the Sexual Offences (Northern Ireland) Order 2008 (S.I. 2008/1769 (N.I. 2))—(a) Article 20 (child sex offences committed by children or young persons);(b) Article 23 (abuse of position of trust: sexual activity with a child);(c) Article 24 (abuse of position of trust: causing or inciting a child to engage in sexual activity);(d) Article 25 (abuse of position of trust: sexual activity in the presence of a child);(e) Article 51 (care workers: sexual activity with a person with a mental disorder);(f) Article 53 (care workers: sexual activity in the presence of a person with a mental disorder);(g) Article 62 (causing or inciting prostitution for gain);(h) Article 63 (controlling prostitution for gain);(i) Article 64 (keeping a brothel used for prostitution)._(2) An offence under Article 32 or 33 of that Order (family child sex offences) where the offence is committed by a person under the age of 18._(3) An offence under Article 37 of that Order (paying for sexual services of a child), where the offence is committed against a person aged 16 or over.67_ An offence under section 67 of the Policing and Crime Act 2016 (breach of pre-charge bail conditions relating to travel).””
“SCHEDULE 14BSCHEDULE TO BE INSERTED AS SCHEDULE 7B TO THE CRIMINAL JUSTICE AND PUBLIC ORDER ACT 1994“RIGHTS OF PERSONS ARRESTED UNDER SECTION 137A: MODIFICATIONSPART 1ARRESTS IN RESPECT OF OFFENCES COMMITTED IN ENGLAND AND WALES1_(1) This Part sets out the modifications mentioned in section 137D(2), that is, modifications of the provisions which apply in relation to persons arrested under section 137A in respect of a specified offence committed in England and Wales._(2) Except as expressly provided by this Part, a reference to a constable in any of those provisions is to be read as a reference to a constable of the arresting force._(3) In this Part, references to the arresting force and the investigating force have the same meaning as in section 137C (see subsection (8) of that section).2_(1) Section 56 of the Police and Criminal Evidence Act 1984 (right to have someone informed when arrested) is modified as follows._(2) Subsection (1) is to be read as if (instead of referring to the case where a person has been arrested and is being held in custody in a police station or other premises) it referred to the case where a person has been arrested under section 137A and is being detained under section 137C._(3) Subsection (2)(a) does not apply._(4) Subsection (2)(b) is to be read as if (instead of referring to an officer of at least the rank of inspector) it referred—(a) in relation to delay during the period of 24 hours beginning with the time of the arrest under section 137A, to an officer of the investigating force of at least the rank of inspector; (b) in relation to delay during any remaining period for which the person may be detained under section 137C, to an officer of the investigating force of a rank above that of inspector._(5) Subsection (3) does not apply._(6) The reference in subsection (5)(a) to an indictable offence is to be read as a reference to an offence that is an indictable offence under the law of England and Wales._(7) Subsection (5A)(a) is to be read as if (instead of referring to the person detained for the indictable offence) it referred to the person detained under section 137C._(8) Subsection (6)(b) is to be read as if (instead of referring to a person’s custody record) it referred to the record made by the arresting force in relation to the person’s arrest under section137A and detention under section 137C._(9) Subsection (8) is to be read as if (instead of referring to a person detained at a police station or other premises) it referred to a person detained under section 137C.3_(1) Section 58 of the Police and Criminal Evidence Act 1984 (access to legal advice) is modified as follows._(2) Subsection (1) is to be read as if (instead of referring to a person held in custody in a police station or other premises) it referred to a person detained under section 137C._(3) Subsections (2) and (9)(b) are to be read as if (instead of referring to a person’s custody record) they referred to the record made by the arresting force in relation to the person’s arrest under section 137A and detention under section 137C._(4) Subsections (3) and (5) do not apply._(5) Subsection (6)(a) does not apply._(6) The reference in subsection (6)(b) to an officer of at least the rank of superintendent is to be read as a reference to an officer of at least that rank in the investigating force._(7) The reference in subsection (8)(a) to an indictable offence is to be read as a reference to an indictable offence under the law of England and Wales._(8) Subsection (8A)(a) is to be read as if (instead of referring to the person detained for the indictable offence) it referred to the person detained under section 137C.4_(1) Section 34 of the Children and Young Persons Act 1933 (attendance at court of parent of child or young person charged with an offence, etc) is modified as follows._(2) Subsection (2) is to be read as if (instead of referring to the case where a child or young person is in police detention) it referred to the case where a child or young person is being detained under section 137C._(3) Subsection (3) is to be read as if (in addition to the information mentioned in paragraphs (a) to (c)) it also mentioned the information set out in section 137D(1)(a) and (b)._(4) The reference in subsection (9) to a child’s or young person’s rights under section 56 of the Police and Criminal Evidence Act 1984 is to be read as a reference to that section as modified by this Schedule.PART 2ARRESTS IN RESPECT OF OFFENCES COMMITTED IN SCOTLAND5_(1) This Part sets out the modifications mentioned in section 137D(3), that is, modifications of the provisions which apply in relation to persons arrested under section 137A in respect of a specified offence committed in Scotland. _(2) Except as expressly provided by this Part, a reference to a constable in any of those provisions is to be read as a reference to a constable of the arresting force._(3) A reference to a person in police custody in any of those provisions is to be read as a reference to a person detained under section 137C._(4) In this Part, references to the arresting force and the investigating force have the same meaning as in section 137C (see subsection (8) of that section).6_(1) Section 38 of the Criminal Justice (Scotland) Act 2016 (right to have intimation sent to other person) is modified as follows._(2) Subsection (6) applies as if (instead of the provision made by that subsection) it defined “an appropriate constable” as being—(a) in relation to delay during the period of 24 hours beginning with the time of the arrest under section 137A, an officer of the investigating force of at least the rank of inspector;(b) in relation to delay during any remaining period for which a person may be detained under section 137C, an officer of the investigating force of a rank above that of inspector.7_(1) Section 40 of that Act (right of under 18s to have access to another person) is modified as follows._(2) Subsection (5) applies as if (instead of the provision made by that subsection) it provided for a decision to refuse or restrict access to a person under subsection (1) or (2) to be taken only by—(a) in the case of a decision to refuse or restrict access during the period of 24 hours beginning with the time of the arrest under section 137A, an officer of the investigating force of at least the rank of inspector;(b) in the case of a decision to refuse or restrict access during any remaining period for which a person may be detained under section 137C, an officer of the investigating force of a rank above that of inspector.8_(1) Section 41 of that Act (social work involvement in relation to under 18s) is modified as follows._(2) Subsection (6) applies as if (instead of the provision made by that subsection) it provided for a decision to refuse or restrict access to a person under subsection (4)(b) to be taken only by—(a) in the case of a decision to refuse or restrict access during the period of 24 hours beginning with the time of the arrest under section 137A, an officer of the investigating force of at least the rank of inspector;(b) in the case of a decision to refuse or restrict access during any remaining period for which a person may be detained under section 137C, an officer of the investigating force of a rank above that of inspector.9_(1) Section 42 of that Act (support for vulnerable persons) is modified as follows._(2) Subsection (5)(b)(ii) is to be read as if (instead of referring to a person appointed as a member of police staff under section 26(1) of the Police and Fire Reform (Scotland) Act 2012) it referred to a person who performs a function which is equivalent to a function performed at a police station in Scotland by a person appointed as a member of police staff under section 26(1) of that Act.10_(1) Section 43 of that Act (right to have intimation sent to solicitor) is modified as follows._(2) Subsection (1) is to be read as if the list of matters of which a person has a right to have intimation sent to a solicitor— (a) did not include paragraph (d), but(b) did include the matters mentioned in section 137D(1)(a) and (b).11_(1) Section 44 of that Act (right to consultation with solicitor) is modified as follows._(2) Subsection (3) applies as if (instead of the provision made by that subsection) it provided for a decision to delay the exercise of the right under subsection (1) to be taken only by—(a) in the case of a delay during the period of 24 hours beginning with the time of the arrest under section 137A, an officer of the investigating force of at least the rank of inspector;(b) in the case of a delay during any remaining period for which a person may be detained under section 137C, an officer of the investigating force of a rank above that of inspector.12_(1) Section 51 of that Act (duty to consider child’s wellbeing) is modified as follows._(2) Subsection (1) is to be read as if it did not include paragraphs (a), (c) and (d).PART 3ARRESTS IN RESPECT OF OFFENCES COMMITTED IN NORTHERN IRELAND13_(1) This Part sets out the modifications mentioned in section 137D(4), that is, modifications of the provisions which apply in relation to persons arrested under section 137A in respect of a specified offence committed in Northern Ireland._(2) Except as expressly provided by this Part, a reference to a constable in any of those provisions is to be read as a reference to a constable of the arresting force._(3) In this Part, references to the arresting force and the investigating force have the same meaning as in section 137C (see subsection (8) of that section).14_(1) Article 57 of the Police and Criminal Evidence (Northern Ireland) Order 1989 (right to have someone informed when arrested) is modified as follows._(2) Paragraph (1) is to be read as if (instead of referring to the case where a person has been arrested and is being held in custody in a police station or other premises) it referred to the case where a person has been arrested under section 137A and is being detained under section 137C._(3) Paragraph (2)(a) does not apply._(4) Paragraph (2)(b) is to be read as if (instead of referring to an officer of at least the rank of inspector) it referred—(a) in relation to delay during the period of 24 hours beginning with the time of the arrest under section 137A, to an officer of the investigating force of at least the rank of inspector;(b) in relation to delay during any remaining period for which the person may be detained under section 137C, to an officer of the investigating force of a rank above that of inspector._(5) Paragraph (3) does not apply._(6) The reference in paragraph (5)(a) to an indictable offence is to be read as a reference to an offence that is an indictable offence under the law of Northern Ireland._(7) Paragraph (5A)(a) is to be read as if (instead of referring to the person detained for the indictable offence) it referred to the person detained under section 137C._(8) Paragraph (6)(b) is to be read as if (instead of referring to a person’s custody record) it referred to the record made by the arresting force in relation to the person’s arrest under section 137A and detention under section 137C. _(9) Paragraph (8) is to be read as if (instead of referring to a person detained at a police station or other premises) it referred to a person detained under section 137C.15_(1) Article 59 of the Police and Criminal Evidence (Northern Ireland) Order 1989 (access to legal advice) is modified as follows._(2) Paragraph (1) is to be read as if (instead of referring to a person held in custody in a police station or other premises) it referred to a person detained under section 137C._(3) Paragraphs (2) and (9)(b) are to be read as if (instead of referring to a person’s custody record) they referred to the record made by the arresting force in relation to the person’s arrest under section 137A and detention under section 137C._(4) Paragraphs (3) and (5) do not apply._(5) Paragraph (6)(a) does not apply._(6) The reference in paragraph (6)(b) to an officer of at least the rank of superintendent is to be read as a reference to an officer of at least that rank in the investigating force._(7) The reference in paragraph (8)(a) to an indictable offence is to be read as a reference to an indictable offence under the law of Northern Ireland._(8) Paragraph (8A)(a) is to be read as if (instead of referring to the person detained for the indictable offence) it referred to the person detained under section 137C.16_(1) Article 10 of the Criminal Justice (Children) (Northern Ireland) Order 1998 (duty to inform person responsible for welfare of child in police detention) is modified as follows._(2) Paragraph (1) is to be read as if (instead of referring to the case where a child is in police detention) it referred to the case where a child is being detained under section 137C._(3) That paragraph is also to be read as if (in addition to the information mentioned in sub-paragraphs (a) to (c)) it also mentioned the information set out in section 137D(1)(a) and (b)._(4) The reference in paragraph (6) to a child’s rights under Article 57 of the Police and Criminal Evidence (Northern Ireland) Order 1989 is to be read as a reference to that Article as modified by this Schedule.””
Lord Harris of Haringey
I do not intend to hold things up, nor am I necessarily expecting that the Minister will be able to respond—I had not given notice of this—but I hope that she might be able to respond well in advance of Report.
Clause 109 relates to the eligibility of deputy police and crime commissioners for election. Noble Lords may recall that on day 1 in Committee I raised the complexities of the position of the proposed deputy mayor for fire, but I then referred to the complexity of the position of the deputy mayor for policing and crime, it being a politically restricted post. As I understand it, deputy police and crime commissioners are politically restricted posts, yet here we have a very sensible clause which I believe creates an arrangement whereby deputy police and crime commissioners can stand for election. If deputy police and crime commissioners are politically restricted, we are now creating a situation that goes against that provision by saying that they can stand for election.
Between now and Report—perhaps in good time before Report—can the Minister tell us, first, what the rationale is for deputy police and crime commissioners, let alone deputy mayors for policing and crime, to be politically restricted under certain circumstances; and, secondly, whether this restriction is still necessary and, given that this clause assumes that it is possible for deputy police and crime commissioners to stand for election, whether the original idea that deputy police and crime commissioners should not be politically restricted can be adjusted? I think that this issue needs to be tidied up. It is certainly a matter that I intend to return to on Report unless we succeed in clarifying it before then.
Baroness Williams of Trafford
My Lords, it seems like ages ago but I remember the debate and I remember what I thought at the time, although I cannot for the life of me think of an answer for the noble Lord at such a late hour. However, I said that we would reflect on the points that he raised because at the time—on day 1 of Committee, as the noble Lord said—they seemed very pertinent, and we will respond ahead of Report. I hope that he is happy with that.
Lord Rosser
“Police and crime commissioners: parity of funding at inquests
(1) When the police force for which a police and crime commissioner is responsible is an interested person for the purposes of an inquest into—(a) the death of a member of an individual family, or(b) the deaths of members of a group of families,under the Coroners and Justice Act 2009, the Commissioner has the duties set out in this section.(2) The police and crime commissioner must make recommendations to the Secretary of State as to whether the individual family or the group of families at the inquest require financial support to ensure parity of legal representation between parties to the inquest.(3) If a police and crime commissioner makes a recommendation under subsection (2) then the Secretary of State must provide financial assistance to the individual family or the group of families to ensure parity of funding between the individual family or the group of families and the other party to the inquest. (4) The individual family or the group of families may use funding authorised under this section solely for the purpose of funding legal representation at the inquest.(5) In this section, “interested person” has the same meaning as in section 47 of the Coroners and Justice Act 2009.”
Lord Rosser
My Lords, this amendment and its associated new clause seek to establish the principle of parity of legal funding for bereaved families at inquests involving the police, the lack of which and the associated injustice was highlighted by the sorry saga of the Hillsborough hearings and the extent to which the scales were weighted against the families of those who had lost their lives. But Hillsborough was not a one-off—it was simply that the proceedings received a lot of publicity. Many bereaved families can and do face a similar situation when they go to an inquest and find themselves in an adversarial and aggressive environment where they are not in a position to match the spending of the police or other parts of the public sector in what they spend on their own legal representation. At times, the families feel that they are being made to look like the perpetrators responsible for what happened, rather than the victims.
The public sector is in a position to spend taxpayers’ money on hiring the best lawyers to defend its reputation. Bereaved families have to find their own money, sometimes even to the extent of remortgaging their house, to have any sort of legal representation to mount a challenge. Public money should pay to establish the truth, and that surely means parity of arms. If the argument is that an inquest will get at the truth anyway, irrespective of the extent and quality of legal representation, why do the police and the public sector turn up at such inquests with their own array of lawyers?
Margaret Aspinall, who was the chair of the Hillsborough Family Support Group, has told of the lengths to which she and other members of the group had to go to raise money for the legal fund. It is surely not right, and surely not justice, when bereaved families trying to find out the truth, and who have not done anything wrong, find that taxpayers’ money is being used by the other side to paint a very different picture of events in a bid to destroy their credibility.
It might also help if we had inquisitorial rather than adversarial inquests. In the case of Hillsborough, the Lord Chief Justice made a specific ruling when he quashed the original inquest: he hoped that, given that the police had tainted the evidence, the new inquest would not degenerate into an adversarial battle. However, that is precisely what happened, and the lies and innuendo about Liverpool supporters at the match were repeated by a lawyer being financed at public expense and presumably acting under instructions from the public body involved.
I hope that the Government will be able to respond in a more helpful way than they did when this matter was debated during the Bill’s passage through the Commons. If there is to continue to be an adversarial battle at inquests involving the police, we should at least ensure that bereaved families have the same ability as the public sector to get their points and questions across and, in the light of what can currently happen, to defend themselves and the loved ones they have lost from attack, and, if necessary, to challenge the very way proceedings are being conducted. This is a bigger issue than simply Hillsborough: it relates to the situation that all too often happens to too many families, but without the same publicity as Hillsborough. We surely need to act now to change a process and procedure that appears at times to be geared more to trying to grind down bereaved families than to enabling them to get at the truth and obtain justice. I beg to move.
Lord Paddick
My Lords, I rise briefly to support the amendment to which I have added my name. I declare an interest: I gave evidence for the de Menezes family at the inquest into the death of Jean Charles de Menezes, whom noble Lords will remember was shot by accident by the police, suspecting him to be a suicide bomber. Sadly, I experienced the adversarial nature of inquests at first hand. Indeed, during the lunch break on the day that I gave evidence, the coroner had to warn the legal team for the Metropolitan Police and basically tell them to “cool it”.
A very adversarial system operates at the moment, whereas it should be an inquiry after the truth. Having experienced it first hand, I can say that it is absolutely necessary for the families of the bereaved to be as well represented as the police where there has been a death at the hands of the police, or a death in police custody, to use the technical term. For those reasons, I support the amendment.
Lord Harris of Haringey
I speak to my amendment in this group, which is similar except in terms of who ends up paying. I tabled this amendment very much for the reasons mentioned by my noble friend Lord Rosser and the noble Lord, Lord Paddick—the nature of inquests and the importance of creating a level playing field to enable the coroner to get to the truth of what has happened in cases of tragic death. The cases that I have been involved with relate to deaths in custody. For a number of years, I was chair of the Independent Advisory Panel on Deaths in Custody, which was concerned with not only police custody and deaths following police contact, but with deaths in prison and in secure mental hospitals. On a number of occasions, I spent time with the families of those who had died, as far as they were concerned, at the hands of the state.
I remember one family very movingly describing the experience of the inquest. They wanted to know what had happened to their loved one. They were not necessarily looking to apportion blame or for someone’s head on a platter. They just wanted to know the facts. They were confronted with a complicated legal system, with everybody else being fully represented—at public expense. They were having to fight for legal representation through the legal aid system.
I do not know how many noble Lords have been in a coroner’s court when such matters have been discussed. They are not always the easiest of environments. I remember one person describing that there was one small area for everyone to wait—counsel, witnesses and the bereaved families themselves. There were not sufficient chairs in the waiting room for everyone concerned. They described walking down the corridor and hearing behind them the trundle of wheeled suitcases filled with legal papers being dragged by highly paid legal officials, employed by the state to argue and create confusion around what had happened to their loved one. For that reason, we should consider the proper operation of the inquest to enable the truth to be obtained.
What concerns me about the present system is that when this issue was raised in the past, we were told that families were eligible for legal aid. But it is not as simple as that because there are strict criteria on the income that people can have in order to obtain legal aid. Of course, when a case relates to a family, it is not related to an individual, so before eligibility for legal aid can be established, the financial means of every single member of the family has to be assessed, whether or not they are actively engaged in the process. That can be long and drawn-out, extremely intrusive and not helpful. The reality is that the legal aid pot is tiny, and it becomes increasingly difficult to deal with cases humanely.
The purpose of my amendment is slightly different from that of my noble friend Lord Rosser. Yes, there should be parity of funding, but rather than an off-the-top call on the legal aid fund—therefore diminishing the amount of aid available to people who need it for criminal cases, for example—the agency that had custody of the individual at the time of their death should provide the funding. The agency will almost certainly be paying a substantial number of legal costs. In the case of a death in a police custody suite, it is probable that several police officers were involved, all of whom may be legally represented separately at the expense of the state. The police force itself may be represented separately, and at the expense of the state. Then there is the bereaved family, who may be quite traumatised by what has happened and facing extreme difficulties because they do not know what to do. If it were not for charities like INQUEST, with which I have worked over the years, which provides support for such families and has a panel of lawyers to assist them, many families would essentially go unrepresented at inquests. Yet it is important that those families have the right to challenge the evidence being presented to make sure that they are satisfied that as far as possible, the truth has been obtained at the inquest.
Baroness Williams of Trafford
My Lords, I believe that we all sympathise with the intention of the amendment. These new clauses draw on the experience of the Hillsborough families, and their fight for justice has been a long time coming. As noble Lords will be aware, the Hillsborough families received public funding for their legal costs at the fresh inquest. That was a bespoke scheme. We need to ensure that any similar action we take in the future is appropriate and proportionate. It is for these reasons that the former Home Secretary commissioned Bishop James Jones to compile a report on the experiences of the Hillsborough families, and the Government believe that it is appropriate that we should wait for his report before considering these issues further.
In relation to the funding of former police officers, this was a decision taken by the police and crime commissioner taking into account relevant case law and guidance on this subject. Separately, the former Home Secretary took a decision to provide a special grant to the South Yorkshire PCC in order to assist with the legal costs incurred as a result of the former officers’ legal fees. In arriving at this decision, the former Home Secretary put the concerns and interests of the families at the forefront of her thinking, together with the principle of justice and the continuation of the inquests.
Additionally, in taking her decision on providing a special grant, the former Home Secretary was clear that it was important that justice should not only be done, but be seen to be done. It would have been wrong to leave police and other witnesses vulnerable to claims that justice had not been done because they lacked proper legal representation. The decision was taken specifically in the context of the Hillsborough inquests and should not be seen as setting a wider precedent.
In the light of these issues, it would be premature at this stage to commit to any further legislation, should it be required, before we have received Bishop Jones’s report and seen its recommendations. Without prejudice to our consideration of Bishop Jones’s conclusions and recommendations, it is important that I put on record that these amendments would place a significant financial burden on the Secretary of State or, in the case of Amendment 203, on PCCs. The cost of the legal representation for the 103 families at the fresh inquest into Hillsborough amounted to £63.6 million. Clearly, the Hillsborough inquests were an exceptional case, but it does at least provide an indication of the level of financial commitment these amendments imply. It is right that your Lordships’ House takes this into consideration fully. On Amendment 202, it is also unclear to me why a PCC has a role in making a recommendation to the Secretary of State when the financial implications of that decision fall solely on the Secretary of State.
There are other technical issues with these amendments. For example, how would a PCC be in a position to know the funding available to other interested persons, which can include other public bodies? A PCC has no powers to inquire into the legal costs of the ambulance service or a health trust, for example.
The reference in the amendments to “parity of funding” also requires careful consideration. There will be significant differences between the legal advice required by a police officer or former police officer who could potentially face criminal charges and the family of a victim who are seeking justice. Does parity mean the cost, or the number of solicitors and counsel, or the level of their qualifications, with, for example, both legal teams headed up by a QC?
On Amendment 203, it is not clear to me whether a PCC has discretion to consider the merits of the representations he or she receives, or whether the PCC is bound to provide funding by virtue of the fact that representations have been received.
I accept that these are all detail points, which, while they will need to be addressed, are secondary. As I have said, the Government are firmly of the view that we should wait for Bishop Jones’s report and then determine, in the light of it, the most appropriate way forward. On the understanding that this issue is firmly on the Government’s agenda, I invite the noble Lord to withdraw his amendment.
Lord Harris of Haringey
My Lords, before my noble friend responds, could we first have clarity as to the scope and terms of reference of Bishop Jones’s inquiry and whether it will look not at circumstances where large numbers of families are potentially involved, but at situations where there is one bereft family who are perhaps traumatised by what has happened and then face the full panoply of all this legal representation?
I note that the noble Baroness said very carefully that the former Home Secretary, in agreeing the funding in respect of the Hillsborough inquests, said that she was not setting a precedent. I appreciate that that is what one would do under such circumstances, but Hillsborough was a unique tragedy. I am not trying to gauge the size of tragedies and their impact, but the fact that for every person who died in Hillsborough their families were bereaved, shocked, appalled and in a terrible state does not alter the fact that individual families, perhaps whose 16 year-old son has died in a police cell or whatever else it might be, are suffering just as much as any of the Hillsborough families. Whether parity is the right word, as raised by the Minister, is a genuine question. It is quite complicated. However, what is important is the principle that it should be possible for families to seek representation of their choice and for it to be funded. I appreciate that they would be seeking to get to the bottom of what had happened, whereas police officers, who might be subject to criminal charges, would have a different set of objectives, but I hope that the Government, when they have fully considered this, will take on board the principle that those families should have the right to representation.
Baroness Williams of Trafford
My Lords, the Government will see and respond to Bishop Jones’s review in due course. He is considering the terms of reference for his review with the families and intends to publish them shortly.
The noble Lord spoke of the suffering. He is absolutely right: it is not just the suffering of one person but the suffering of everybody associated with them, so I do not undermine the noble Lord’s point at all; in fact, I share his view. Let us see what Bishop Jones says and the Government will respond in due course.
Lord Rosser
I thank all noble Lords who have participated in this debate and the Minister for her response. I shall not pretend that the response was a tremendous shock, since it was not dissimilar to those given previously. I am not quite sure how the report by the bishop will necessarily address the issue of what could happen at inquests generally where the police are represented, as opposed to the rather special circumstances of Hillsborough. The point that I was trying to make—obviously to no avail—is that this issue is not about Hillsborough; it goes way beyond that to looking at inquests generally where the police are represented, where there is a distinct inequality of arms and the consequences that arise from that. I was disappointed to hear again the issue of the money being raised as a key point. Some might think that if spending that amount of money enabled us at long last to get at the truth over Hillsborough then maybe it was not money badly spent, but clearly the Government have a different view about that.
On the arguments about the technicalities of the amendments and on whether the wording is appropriate or a bit vague in certain areas, if the Government wanted to be serious about doing something they would not put that argument forward. They would say that there were issues with the amendments that my noble friend Lord Harris and I had put down, but that they accepted the principle of what we were trying to achieve and would come back on Report with an amendment of their own, or alternatively that they would have discussions about the appropriate wording. But that has not been the Government’s response.
Although I do not want to pretend that I am somehow shocked at the Government’s reply, since it is consistent with what has been said previously, I am disappointed with it, since I have not heard any guarantees that the report from the bishop will address the wider issue of inquests generally where the police are represented as opposed to what happened at Hillsborough. There was nothing in the Minister’s response to indicate that it would do that. In the meantime, I beg leave to withdraw the amendment. Obviously, we will have to consider whether to bring it back on Report.
Policing and Crime Bill
Wednesday 9th November 2016
(9 years, 5 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 55-IV Fourth marshalled list for Committee (PDF, 263KB) - (7 Nov 2016)
“(a) either the conditions in subsection (2AA) are met or the condition in subsection (2AB) is met, and(b) if an additional condition is specified in regulations under subsection (2AC), that condition is also met.(2AA) The conditions in this subsection are that—(a) the firearm’s chamber or, if the firearm has more than one chamber, each of its chambers is either—(i) a chamber that the firearm had when it was manufactured, or(ii) a replacement for such a chamber that is identical to it in all material respects;(b) the firearm’s chamber or (as the case may be) each of the firearm’s chambers is designed for use with a cartridge of a description specified in regulations made by statutory instrument by the Secretary of State (whether or not it is also capable of being used with other cartridges).(2AB) The condition in this subsection is that the firearm’s ignition system is of a description specified in regulations made by statutory instrument by the Secretary of State.(2AC) The Secretary of State may by regulations made by statutory instrument specify either of the following conditions for the purposes of subsection (2A)(b)—(a) a condition that a number of years specified in the regulations has elapsed since the date on which the firearm was manufactured;(b) a condition that the firearm was manufactured before a date specified in the regulations.”
Baroness Chisholm of Owlpen (Con)
My Lords, Great Britain has some of the toughest gun control laws in the world. However, as matters stand, the Firearms Act 1968 exempts antique firearms held as a “curiosity or ornament” from the scope of firearms legislation, which means they can be held without a firearms certificate. The problem with the current situation is that “antique” is not defined and it is this ambiguity that Clause 112 is designed to address. The law as currently constituted places too much emphasis on how the firearm is possessed—as a curio or ornament—and not on the characteristics and definitions of what constitutes an antique firearm. To resolve these difficulties we propose to define an antique firearm by reference to functionality and will do this in two ways: first, if its chamber is capable of being used only with a cartridge of a specified description and, secondly, if its ignition system is of a specified description.
However, concerns have been raised that instead of bringing the desired certainty to this area of firearms legislation, our definition could create further uncertainty about the status of old firearms because it would be difficult, if not impossible, to rule out the possibility that some antique firearms may be capable of being used with cartridges other than those for which they were originally designed. This would mean that a significant proportion of antique firearms currently regarded as exempt would not be covered by the new definition and in consequence could become prohibited. The amendment therefore sets out that antique firearms should be defined by reference to the chamber they had when manufactured, or an identical replacement chamber, which will allow them to be subject to the exemption. If the chambering has been altered in any way to accommodate ammunition which would otherwise be a loose or imprecise fit, then the firearm will not be subject to the exemption. A firearm may still also achieve antique status based on its ignition system.
The amendment also creates a further regulation-making power to enable the Secretary of State to specify a number of years since the date of manufacture which must have elapsed for a firearm to be antique, or that the firearm must have been manufactured before a specified date. This will guard against modern reproductions benefiting from antique firearms’ exemption from the controls in the legislation. I beg to move.
Earl Attlee
“(3A) Subsection (1)(b) does not apply if the weapon is transferred by means of inheritance.”
Earl Attlee (Con)
My Lords, I will also speak to Amendments 203G and 203H. The Committee is pressed for time so I shall try to avoid wearying it with too much detail. At Second Reading I raised the issue of deactivated firearms covered by Clause 114 and declared my interest as an owner of one deactivated firearm. Unfortunately, despite the best efforts of Vicky Ford MEP and our Home Office officials, the EU is understandably hell bent on a knee-jerk reaction to the tragic events in Paris. The EU proposals are technically weak and difficult to understand, partially because of the technical terms used. I understand that a significant proportion of the briefing against Ms Ford’s position has come from the Liege proof master. Apparently that official is now being investigated regarding serious criminal matters involving firearms. If these EU provisions come into effect they will have a very serious impact on collectors, the trade in deactivated firearms and the film industry throughout the EU, which could be badly affected because it will be harder to make action films safely.
The Minister has no shortage of expert advice available to her and I am grateful to her for making her officials available to brief me. She has an excellent lead technical official in the Home Office, to whom I pay tribute, as well as access to the London and Birmingham proof masters. As a result, for many years we have had an excellent regime for deactivating firearms.
Lord Kennedy of Southwark (Lab)
My Lords, Clause 114 concerns defectively deactivated weapons. As we have heard, we have some of the toughest firearms laws in the world, and I am very pleased about that.
In this grouping the noble Earl, Lord Attlee, has given notice of his intention to oppose Clause 114 standing part of the Bill, although he did not speak to that. However, I do not agree with his opposition to the clause. I think that we would want deactivated weapons to be sold or gifted to people only when they met the highest standards available. If people want to sell these weapons within the EU, they should be certified to the appropriate standard. That is the answer to the problem—not to delete the whole clause.
However, the noble Earl’s amendments raise important points that need to be considered carefully and responded to by the Government. My general position on firearms is that our legislation has had a positive effect and we should always keep matters under review, with a view to seeing where updates or amendments can be made, so that we never relax our tough approach. Having said that, I see the point the noble Earl is making—if you inherit a weapon, potentially an offence can be committed. We need to look at that, although I am not sure that we should do as he suggests.
The noble Earl also made the important point about transferrals to a body corporate, which can be used as a way of getting round legislation. I am not sure what effect the last amendment in the group would have, but he has raised some very important points and I look forward to hearing what the Minister says.
Baroness Hamwee (LD)
My Lords, when the Minister introduces Amendment 203K, which is about extending the period for considering an application for the renewal of a certificate, can she say whether this is being proposed because there are problems generally or in particular forces? In other words, are there just a few difficulties or is this a widespread issue, in that the police do not find eight weeks sufficient? I raise this because of the concern that 16 weeks might easily become the norm, given the opportunity to extend.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, I am grateful to my noble friend for outlining his amendments. As he suggests, I will first explain the government amendments in this group.
Amendments 203J and 203K respond to amendments tabled by Geoffrey Clifton-Brown at Commons Report stage. They seek to make two improvements in the operation of the licensing arrangements under the Firearms Act of 1968. Amendment 203J would remove some of the unnecessary administrative requirements that currently apply to the possession of expanding ammunition.
Expanding ammunition is designed to expand predictably on impact and was prohibited initially in relation to pistols in 1992. In 1997 the ban was extended to all such ammunition, even though it is in universal use for pest control and is required for deer-stalking under the Deer Act and Deer (Scotland) Act.
The current legislation does allow for expanding ammunition to be possessed, in order to carry out specific activities such as the lawful shooting of deer, estate management, the humane killing of animals or the shooting of animals for the protection of other animals or humans. However, the legislation also requires that the individual possess a suitably conditioned firearm certificate for these activities.
The amendment would allow for the possession, purchase, acquisition, sale or transfer of expanding ammunition for rifles where the individual is in possession of a valid firearm certificate or a visitors firearm permit. The effect is—and I hope this goes some way toward answering the noble Baroness’s question—that the police will no longer have to include additional conditions on a certificate or permit, thereby removing some of the administrative burden that the current regime places on them.
Amendment 203K is intended to address the issues that currently arise with an application for the renewal of a firearms certificate that has been made prior to the expiry of the certificate but has not been determined by the police in time. Police forces have developed two different approaches in these cases. The first is to allow the applicant to remain in possession of the firearm, shotgun or ammunition, which means the applicant is in breach of Section 1 or Section 2 of the 1968 Act until the application has been processed. The second is to issue a temporary permit using the power in Section 7 of the Act.
I am sure noble Lords will agree that it is not appropriate for certificate holders to be at risk of arrest and prosecution for an offence under Section 1 or Section 2 because the police have failed to process applications in time. Equally, it is not appropriate for the police to issue temporary permits to individuals whose substantive applications may subsequently be refused. The issuing of such permits also places an increased administrative burden on the police.
Amendment 203K will bring greater clarity in such circumstances by automatically extending the validity of firearm and shotgun certificates past their expiry date for a limited period of up to eight weeks. This will apply only where an application for renewal has been received by the police at least eight weeks prior to the date of expiry of the certificate.
The noble Baroness, Lady Hamwee, asked whether the problems were widespread or localised to particular forces. There were different levels of performance across different forces, and performance varies across some forces, meaning that some are better that others—so this is force-led.
Amendments 234A and 234B are consequential amendments to the extent clause.
I trust the Committee will agree that the two new clauses make sensible changes to the firearms regime and in doing so reduce the administrative burdens on the police without compromising public safety.
As my noble friend explained, his amendments relate to Clause 114, which strengthens the controls on deactivated firearms and thereby enhances public protection. I was pleased to meet my noble friend to discuss his concerns about this clause and I know that he has had a useful follow-up meeting, as he explained, with officials and one of the proof houses.
My noble friend has pointed to some of the difficulties that have been identified with the EU deactivation standards. The UK has some of the toughest gun laws in the world and some of the most robust deactivation standards in Europe. The need for consistent, robust deactivation across member states has been the driving force for EU implementing regulation.
While the new EU deactivation specifications have been introduced, we have recognised that we need to strengthen deactivation measures for certain firearms. We now require additional measures that will align the EU standards with the exacting standards for deactivated weapons already in place in the UK. We have agreed this position with the European Commission. Moreover, the Commission has set up a small group of technical experts to help interpret and, if necessary, revise the standards, and the UK is represented on this group.
Some noble Lords may argue that, following the referendum result, we should drop this provision from the Bill. However, on leaving the EU we will still want to ensure that individuals comply with the relevant deactivation standards that we have in place. To that end, I am ready to explore future-proofing the definition of a defectively deactivated weapon as used in the clause.
I hope I have been able to reassure my noble friend that the offence in Clause 114 is necessary to strengthen our firearms controls, and that, having aired this important issue, he will be content to withdraw his amendment and support Clause 114 standing part of the Bill—and the Government’s amendments in this group.
Lord Kennedy of Southwark
I should have said in my earlier contribution that of course we fully support the government amendments in this group. However, I saw that they will cover only England, Scotland and Wales, and not Northern Ireland. Is that because Northern Ireland already has other provisions? The other parts of the Bill will of course cover all parts of the United Kingdom.
Baroness Williams of Trafford
I did know the answer to that but I have forgotten it. Rather than give the noble Lord the wrong answer, I will double-check that and write to him and the Committee in due course.
Earl Attlee
My Lords, I am grateful for the Minister’s response, and in particular for her final words, when she agreed to have a look at how we future-proof the arrangements. I hope that that will mean that in due course a Government will future-proof it, and then we will be able to do what we want. In the meantime, we can comply with our EU obligations, which of course we have to comply with. Although Brexit means Brexit, we have to comply at the moment. We will get a good solution—we are in a good place on this, and of course there is no question that I will oppose Clause 114. In the meantime, I beg leave to withdraw my amendment.
“Controls on ammunition which expands on impact
(1) The Firearms Act 1968 is amended in accordance with subsections (2) and (3).(2) In section 5 (weapons subject to general prohibition), in subsection (1A), for paragraph (f) substitute—“(f) any ammunition which is designed to be used with a pistol and incorporates a missile designed or adapted to expand on impact;”.(3) In section 5A (exemptions from requirement of authority under section 5), in subsection (8)(a), after “which”, in the first place it occurs, insert “is designed to be used with a pistol and”.(4) In consequence of the amendment made by subsection (2), omit section 9 of the Firearms (Amendment) Act 1997.”
“Limited extension of firearm certificates etc
(1) After section 28A of the Firearms Act 1968 (certificates: supplementary) insert—“28B Certificates: limited extension(1) This section applies where—(a) an application is made for the renewal of a certificate on or before the day which falls 8 weeks before the day at the end of which the certificate is due to expire, but(b) the chief officer of police does not determine whether or not to grant the application before the certificate is due to expire.(2) The certificate continues in force by virtue of this subsection until whichever of the following events occurs first—(a) the chief officer determines whether or not to grant the application;(b) the extension period ends.(3) In subsection (2), “the extension period” means the period of 8 weeks beginning with the day after the day at the end of which the certificate was due to expire.(4) If the event mentioned in subsection (2)(a) occurs first, and the chief officer grants the application, any period for which the certificate continued in force under subsection (2) is to be treated for the purposes of section 28A(1) as part of the period for which the renewed certificate is in force.(5) This section does not apply in relation to the renewal of a certificate granted or last renewed in Northern Ireland.”(2) In consequence of the amendment made by subsection (1), in section 28A of that Act (certificates: supplementary), after subsection (1) insert—“(1A) Subsection (1) is subject to the provision made by section 28B for circumstances in which a certificate may continue in force after the period of five years from the date when it was granted or last renewed.””
Lord Rosser
Lord Rosser (Lab)
My Lords, I will at least attempt to be concise. The Bill deals with relatively narrow issues around Home Office licensing fees for firearms, but I will also talk about police licence fees for guns. These amendments seek to ensure that the full costs of licensing are recovered. In the previous Parliament we argued for full cost recovery in the light of a current taxpayer subsidy for gun ownership of some £17 million a year. The police have estimated that the cost of licensing a firearm is nearly four times the fee charged. A higher fee was introduced just prior to the last general election following negotiations with the British Association for Shooting and Conservation—rather than following an independent review—but it was still less than half the cost of licensing a firearm based on the police figures. These amendments require the Secretary of State to set the cost of a licence fee for prohibited weapons, pistol clubs and museums at full cost to the taxpayer, but we expect the Government to extend this requirement of full cost recovery to Section 1 firearms and the police.
Lord Paddick (LD)
My Lords, I support the amendments of the noble Lord, Lord Rosser, to which my noble friend Lady Hamwee and I have added our names. My argument is quite simple: when we were discussing the Immigration Act, the Government proposed a philosophy of full cost recovery for visa applications and the Immigration Service generally. On 18 March this year, they increased the fees for visa applications, in some cases by 25%. Family and spouse visas are now £1,195, adult dependent relative visas are £2,676, and settlement applications have increased to £1,875. British citizen naturalisation certificates are now £1,156 for adults and £936 for children.
There is currently a government consultation on immigration appeal fees, which proposes an even greater increase to ensure full cost recovery. The consultation suggests a fee for an appeal on the papers to the First-tier Tribunal should increase from £80 to £490, and from £140 to £800 for an oral hearing. If the Minister is not going to agree with these amendments to ensure full cost recovery for the issuing of firearms certificates, will she explain why a different approach is being taken to the principle of full cost recovery when it comes to immigration? In particular, can she refute the obvious allegation that the Government are discriminating against foreign nationals as set against those who go hunting with guns for sport?
Earl Attlee
My Lords, I have some sympathy for the position articulated by noble Lords opposite. However, it needs to be remembered that shooters have to buy their guns, ammunition and facilities and that they pay value added tax at 20%. There is actually huge government revenue from the shooting fraternity, as 20% of everything they spend on shooting comes back to the Government. I can see the noble Lord, Lord Harris, getting very excited. It must be a very powerful argument. I have expressed sympathy for the noble Lords’ position but I give a note of caution: we should not forget the tax revenues from shooting.
Lord Harris of Haringey (Lab)
My Lords, the noble Earl has goaded me into intervening in this debate, which I would otherwise not have done. It is a specious argument to say that because gun owners have to pay VAT, which we all have to pay on most goods and services except that very narrow range which is specifically exempted, they are therefore making their contribution to the costs. My noble friend Lord Rosser and the noble Lord, Lord Paddick, have pulled their punches on this issue. What is actually happening is that the Government have selected one hobby and decided to subsidise it. I would like the Government to explain what other hobbies they intend to subsidise in exactly the same way. If noble Lords opposite, or anybody else, choose to argue that gun ownership is not a hobby then presumably they intend to use the guns for some perhaps less than satisfactory purpose. Again, I wonder why the Government choose to subsidise that activity as opposed to any other.
Earl Attlee
My Lords, I can give the noble Lord an example. I collect classic military and commercial vehicles but there is no road fund tax on them. They are zero rated; that is a subsidy from the Government to people who collect such vehicles. My point is that owners and shooters of firearms pay tax like everyone else. If they did not have their guns, they would not be paying any value added tax on them. It is a simple little point that we should not forget.
Lord Harris of Haringey
Presumably the noble Earl pays VAT on those purchases.
Baroness Williams of Trafford
My Lords, the Government agree that fees for firearms licences should be set on a cost-recovery basis. We have already increased the fees for civilian firearms and shotgun certificates issued by the police in line with this objective. Clause 115 addresses firearms licences issued by the Home Office and the Scottish Government. They therefore concern fees for licences to possess non-civilian prohibited weapons, and for shooting clubs and museums. Currently, most of these types of licence do not attract a fee. Where a fee is charged, it is set at a level well below the cost of administering an application.
Amendments 204 to 206 would require the Government to set all fees at a level that would achieve full cost recovery. The administration of these licences, including assistance from the police, costs the taxpayer an estimated £700,000 a year. The Government agree that licence holders, not the taxpayer, should pay for this service. Clause 115 therefore provides a power for the Home Secretary to set fees for these licences. As the then policing Minister, Mike Penning, explained when similar amendments were debated in the House of Commons, we intend that the fees should be set at a level that will achieve full cost recovery. We will then set out the proposed fees in a public consultation, which we intend to publish shortly.
The consultation will invite views on the implementation of these measures and we welcome responses. The noble Lord, Lord Rosser, asked when the Section 5 fees are planned to be introduced. It will be in April 2017, subject to the planned consultation. I do not want to pre-empt the outcome of the consultation. However, there might be good reasons not to set fees at full cost recovery levels, either for a transitional period or for certain categories of licence holder. We will consider the responses to the consultation on these matters before deciding on the level that should be set. In doing so, we will be guided by the principle to which I referred above: that the costs of licensing should fall to the licence holder rather than to the taxpayer.
Amendment 207 relates to the fees charged by the police for shotgun and civilian firearms certificates and for registered firearms dealer licences. In 2015, we increased fees for those certificates substantially. This was the first increase in the licence fee since 2001. The increase reflected the fact that the cost of the licences had fallen far below the cost to the police of their administration. Fees increased between 23% and 76%, depending on the type of certificate.
When we consulted on the fee levels for certificates issued by the police, we were clear that the cost of licences should reflect the full cost of licensing once a new online licensing system was in place. Work is under way to secure that system. In the meantime we are committed to undertaking an annual review of the fees. There will be a comprehensive review of police licensing fees in five years’ time. I hope that the noble Lord will be reassured that it is indeed this Government’s intention that firearms fees should reflect the full cost of licensing and that on this basis he will be content to withdraw his amendment.
Lord Paddick
My Lords, what consultation was there before the Government implemented full cost recovery for immigration visas with those groups that represent immigrants or those who might be applying for visas?
Baroness Williams of Trafford
May I write to the noble Lord on that? I do not have the answer on timing to hand. I apologise.
Lord Rosser
I seek clarification of one or two points. Did the Minister say that as far as Home Office licence holders are concerned, they will be paying the full cost of licensing from April of next year? As far as the police are concerned, there was no real commitment at all. I asked when the new online system would be introduced. I do not think that I got an answer. I asked whether the full costs of licensing would be charged from the day the new online system came in. I do not think that I got an answer. I also asked by how much the Government considered the fees for police licences would have to be increased to cover the full costs of licensing. I believe that the Minister referred to a review of police licences and costs in five years’ time. Is this suggesting that the new online system will not be coming in for five years? If the Minister is unable to give me a firm date as to when that online system will be operational, can she give a commitment that in the meantime those fees will be raised to cover the full costs and that we shall not be in a situation in which the police, who are already short of money, are in fact subsidising gun ownership in this country with money desperately needed for main police activities? Could I please have some answers? If they are not available now, I shall as always accept a subsequent letter responding to these questions.
Baroness Williams of Trafford
My Lords, in terms of the online system, the current fees are intended to cover the cost of the licencing once the online system is introduced. The police, supported by the Government, are currently developing the online system. An implementation date has not yet been determined. We plan to introduce the Section 5 fees and the increased fees for museums and clubs in April 2017, subject to the planned consultation. The level of fees will therefore be determined subject to that consultation. There is no suggestion that the new online system will take five years to implement. There will be an annual review of licence fees. I hope that I have not completely confused the noble Lord.
Lord Rosser
I do not know that the Minister has completely confused me. She has said that we do not know when the new online system is coming in, which presumably means that it has not reached the testing stage at which the Government know that it will actually deliver, yet the Government are adamant that it will not take five years. If the Government know that it will not take five years, they must be in a position to say now when they expect the system to come in. They can also say why in the meantime they will not increase the fees as far as the police licences are concerned to cover the full cost to the police. Not doing so means that the police, who are short of financial resources, are subsidising gun ownership.
Baroness Williams of Trafford
My Lords, the noble Lord is right in that the taxpayer should not subsidise gun ownership. The new fees will be subject to consultation, although that was not the question he asked. He asked whether it will take five years to implement the online system. I will write to him on how long we think implementation of the online system will take, if that is okay.
Lord Rosser
I thank the Minister for her response and other noble Lords, in particular the noble Lord, Lord Paddick, and my noble friend Lord Harris, who participated in this short debate. I am grateful to the Minister for saying that she will write to me on this, because the question of when the Government are gearing up to introduce the online system is crucial. I sense it will not be within the next few months—to put it bluntly, the Government do not know when it is coming in. They are not even prepared to give an estimate of the timescale, unless that will be in the letter that is to be sent. We will need to reflect further on this in the face, apparently, of a government stance that means they are quite happy, if the online system does not come in very shortly, to see the police subsidising gun ownership in this country, at a time when the police themselves are desperately short of financial resources. However, I beg leave to withdraw the amendment.
Lord Harris of Haringey
“Firearms: revocation of firearms certificate
(1) The Firearms Act 1968 is amended as follows.(2) After section 4 (conversion of weapons) insert—“4A Revocation of firearms certificateAny person who has through negligence lost a firearm or through negligence enabled a firearm to be stolen shall have all firearms certificates in their name revoked and shall be banned from holding a firearms certificate for the rest of their life.””
Lord Harris of Haringey
My Lords, this amendment in my name raises the issue of people who, through negligence, have allowed their firearm to be lost or stolen. This seems to me something that should be taken much more seriously than it is at present. I do not want to bore the House with too many statistics, but roughly half of all recent terrorist plots that have been disrupted have involved situations in which those alleged to be the perpetrators have sought to obtain firearms.
In an average year, 800 registered firearms are lost or stolen. That means there is a seepage of firearms, most likely into the illegal economy. Whether those firearms are obtained by criminals or terrorists seems almost irrelevant. These are firearms that in many instances could kill or harm people, and certainly terrify them. In those circumstances, if an owner has negligently allowed their firearm to be lost or stolen, it seems there should be significant consequences. That is why this amendment proposes not only that they should they have all firearms certificates in their name revoked but that they should be banned from holding a firearms certificate for the rest of their life.
Those who might argue that that is a draconian penalty just need to think about what an unlicensed, stolen firearm in the hands of a criminal or a terrorist might do to somebody else’s life. This seems a punishment that fits the crime. I hope the Minister will accept that this is a serious matter and agree to take this away and tidy up whatever inadequacies there are in my drafting of the amendment, because it seems a no-brainer that we should take firm action against those who, through their negligence, allow dangerous firearms to get into the illegal economy. I beg to move.
Lord Paddick
My Lords, I support the amendment moved by the noble Lord, Lord Harris of Haringey, although perhaps not quite in the terms he suggested. This is a very serious problem. Any firearm that is lost or stolen will almost inevitably find its way into the hands of criminals, whether terrorists or not. It is an extremely serious problem. Because we have world-class controls on firearms, stealing firearms is one of the few ways in which criminals or terrorists can arm themselves. Clearly, there would have to be some investigation to establish whether negligence was involved or not. I understand that, at the moment, when a firearms licence is up for renewal the police will consider what the security arrangements are to store firearms and, indeed, whether any firearms have been lost or stolen by that certificate holder. I agree with the noble Lord, Lord Harris, that this is not taken seriously enough at the moment, that there are very serious potential consequences and that this definitely needs further consideration.
Earl Attlee
My Lords, while I am grateful to the noble Lord for moving this amendment, I am curious about what he means by “negligence”. He talked about the problem of firearms being stolen. If a gun owner has properly kept his firearms in the storage facilities that have already been approved by the police and a burglar comes in and successfully and quite quickly gets into the gun cabinet and steals the firearms, has the firearms owner been negligent or not?
Lord Harris of Haringey
My Lords, part of the process of enacting this would be to make quite clear what qualifies as negligence. In my view, this should not apply if the gun owner has followed all the prescribed procedures, which should be quite onerous. In my understanding, gun owners are extremely careful, particularly about the storage of their weapons. I am concerned about guns that are left in the boot of a car, not necessarily in very adequate containers, or even on the back seat of a car or in circumstances where the gun owner has not locked them away in the approved fashion. Those are certainly cases where this should apply, and I hope that the threat of this action being taken would mean that all gun owners became much more responsible and acted in the way the noble Earl has suggested.
Baroness Williams of Trafford
My Lords, as the noble Lord, Lord Harris, has explained, Amendment 208 would provide that:
“Any person who has through negligence lost a firearm or through negligence enabled a firearm to be stolen shall have all firearms certificates in their name revoked and shall be banned from holding a firearms certificate for the rest of their life”.
As the noble Lord indicated, this was one of the recommendations in his report for the Mayor of London on London’s preparedness to respond to a major terrorist incident, which was published last week.
It is clear that the loss or theft of firearms presents a potential risk to public safety. However, the number of firearms and shotguns that are lost remains extremely small. Any loss or theft is, of course, a cause for concern and it is right that we must take appropriate action in the case of owners who lose or enable the theft of a firearm or shotgun through negligence. I therefore considered carefully the noble Lord’s proposed amendment to the Firearms Act 1968.
When a firearm or shotgun certificate is issued, conditions are automatically included requiring the certificate holder to store their firearms securely to prevent, so far as reasonably practicable, access to the firearms by an unauthorised person. The condition also applies in circumstances where the firearm or shotgun has been removed from secure storage for cleaning, repair or testing or during transit. In these circumstances, all reasonable precautions must be taken to ensure the safe custody of the firearm. A condition is also placed on the certificate requiring the holder to notify the police within seven days of the theft, loss or destruction of a firearm or shotgun. It is an offence not to comply with these conditions, and the maximum penalty for that offence can be up to six months in prison, a fine or both.
Section 38 of the 1968 Act provides for a firearm certificate to be revoked if the chief officer of police is satisfied that the holder is,
“otherwise unfitted to be entrusted with a firearm”,
or can no longer be permitted to have a firearm in their possession without danger to the public’s safety or to the peace. Section 30C makes similar provision for the revocation of shotgun certificates. In the year ending March 2016, the police revoked just under 400 firearms certificates and almost 1,350 shotgun certificates. I assure the noble Lord that when the loss or theft of a firearm or shotgun is reported to the police, the matter is taken very seriously. In such cases the chief officer should consider whether to prosecute the certificate holder for breach of a condition on their certificate, and whether the certificate should be revoked under Sections 30A or 30C of the 1968 Act.
Noble Lords may also be reassured to know that the police intend to set minimum standards in respect of the investigation of lost or stolen firearms. This will provide a consistent national approach to the call-taking, initial response, investigation, assessment of risk and consideration of firearms licensing issues such as revocation. If a person whose certificate has been revoked applies for a new certificate at a later date, the chief officer will consider all the circumstances of the application and, if the reasons for the previous revocation can be determined, in some circumstances a user certificate might be granted. In cases where a firearms offence has been committed, the courts will consider the sentencing options available under the 1968 Act. Depending on the sentence handed down by a court, a lifetime ban may automatically be imposed on a certificate holder. Generally, persons who are sentenced to three years or more are never allowed to possess a firearm again.
The 1968 Act provides for a five-year ban where someone has been sentenced to a period of imprisonment of three months or more but less than three years. Persons who are subject to a suspended sentence of three months or more are also not allowed to possess firearms, including antique firearms, for five years. The amendment could therefore lead to a situation whereby an individual who has been imprisoned for less than three years does not receive a lifetime ban while an individual whose firearm has been lost or stolen receives a ban for life. While I fully agree that we must have robust firearms laws to preserve and maintain public safety, including safeguards to help to prevent their misuse, I am sure noble Lords will agree that our laws must be proportionate.
The inclusion on certificates of conditions governing safe storage means that firearms and shotgun certificate holders understand their responsibilities in respect of keeping their weapons secure. I am also satisfied that police forces already have the powers they need to revoke firearms or shotgun certificates in cases where the owner has lost or enabled the theft of a weapon through negligence. I hope that, having aired this important issue, the noble Lord will feel that he can withdraw his amendment.
Earl Attlee
My Lords, I do not know if my noble friend the Minister has satisfied the noble Lord, Lord Harris—
Earl Attlee
He does look satisfied; he always does. If he chose to come back with this at a later stage, and I hope he does not, he would need to consider disassembly. In the case of a bolt-action hunting rifle for taking deer, for example, if someone lost the rifle but kept the bolt then the rifle would not be much use. He will have to pay a bit of attention to that issue if he wants to bring this back.
Lord Harris of Haringey
My Lords, I am grateful to all noble Lords who contributed to this debate, and in particular to the noble Earl, Lord Attlee, for raising complications about bolt-action and dealing with deer and so on—which, as he knows, are way beyond my understanding and experience of firearms matters.
I am particularly grateful to the Minister for her response, but I was concerned—and no doubt it was just a slip in the way she responded, and I might have misheard her—when she said that it was a very small number of firearms that disappear and go missing each year. In my view, 800 firearms going missing or being stolen each year is a significant number and a significant problem.
I am grateful to her also for outlining the various options available to deal with breaches of conditions and so on. I am partially reassured, but it would be interesting to know how robust and satisfactory the systems are for ensuring that, if a firearms certificate were revoked in one police force area and the same individual were to apply for a certificate in another firearms area, the information would automatically be available to the chief constable when they considered it. I rather suspect, given my experience of the way in which these matters are communicated, that there is no guarantee that the information would be available. I would be interested if the Minister would look into this matter—perhaps not today—and respond to it. I will consider very carefully what she said in her response, but, certainly for today, I beg leave to withdraw the amendment.
“Possession of pyrotechnic articles at musical events
(1) It is an offence for a person to have a pyrotechnic article in his or her possession at any time when the person is—(a) at a place in England where a qualifying musical event is being held, or(b) at any other place in England that is being used by a person responsible for the organisation of a qualifying musical event for the purpose of—(i) regulating entry to, or departure from, the event, or(ii) providing sleeping or other facilities for those attending the event.(2) Subsection (1) does not apply—(a) to a person who is responsible for the organisation of the event, or(b) to a person who has the article in his or her possession with the consent of a person responsible for the organisation of the event.(3) A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding 51 weeks (or, in relation to offences committed before section 281(5) of the Criminal Justice Act 2003 comes into force, 3 months), or to a fine not exceeding level 3 on the standard scale, or to both.(4) In this section, “pyrotechnic article” means an article that contains explosive substances, or an explosive mixture of substances, designed to produce heat, light, sound, gas or smoke, or a combination of such effects, through self-sustained exothermic chemical reactions, other than—(a) a match, or(b) an article specified, or of a description specified, in regulations made by statutory instrument by the Secretary of State.(5) In this section, “qualifying musical event” means an event at which one or more live musical performances take place and which is specified, or of a description specified, in regulations made by statutory instrument by the Secretary of State.(6) A statutory instrument containing regulations under this section is subject to annulment in pursuance of a resolution of either House of Parliament.”
Baroness Chisholm of Owlpen
My Lords, Amendment 209 provides for a new offence of possession of pyrotechnic articles at live musical events in England. The amendment is in response to one tabled by Nigel Adams on Report in the House of Commons. The misuse of fireworks, flares and smoke bombs at festivals and other live musical events by members of the public is an increasing and deeply concerning problem. Fireworks and other pyrotechnic articles covered by the amendment are dangerous when misused. Fireworks can burn at in excess of 2,200 degrees centigrade; flares can reach temperatures of 1,600 degrees centigrade and can burn for as long as an hour. Smoke bombs also burn at high temperatures, and in enclosed or crowded spaces the thick smoke that they release can cause breathing difficulties, particularly for asthma sufferers.
In the 1980s, it was recognised that the misuse of pyrotechnic articles in crowded football stadia posed a specific public order risk. As a result, the Sporting Events (Control of Alcohol etc.) Act 1985 provides for an offence of possession of fireworks and flares at a football match. However, current firework and explosives legislation does not provide the police or prosecutors with an appropriate offence to tackle the possession of pyrotechnic articles at music festivals. While the majority of festival organisers have their own rules banning festivalgoers from bringing fireworks and other pyrotechnic articles on to festival premises, no statutory regulation exists. There is no offence for the use of a firework, flare or smoke bomb in a crowd on private property unless it can be proved that it was used with the intent to cause injury or that its use was likely to endanger life or seriously damage property.
Amendment 209 therefore makes it an offence for a person to be in possession of a pyrotechnic article at a qualifying musical event in England. The offence has been so constructed as to apply also where a person is in possession of such articles at a point of entry into, or exit from, the place where a qualifying musical event is taking place, or at a campsite provided for those who are attending the event.
A qualifying musical event will be defined in regulations, subject to the negative procedure. The amendment itself provides that such musical events must involve live musical performances and, in defining a qualifying event, we will want to further target the offence at those events where there is evidence of harm being caused by the misuse of fireworks, flares or smoke bombs. The maximum penalty for the offence is three months’ imprisonment, which is the same as that applicable to the existing football-related offence.
The effect of Amendment 234 is that the offence extends to England and Wales. As I indicated, it applies to England only. However, we are considering further its territorial application in consultation with the Welsh Government. Amendment 245 makes a consequential amendment to the Long Title.
This offence will help prevent the harm that can come from the misuse of such dangerous articles and allow everyone to enjoy live music events safely. I beg to move.
Baroness Hamwee
My Lords, I am grateful to officials for explaining the origin of the amendment to me. They commented that the Government’s view is that we should not extend the criminal law unless there is a well-founded case for doing so. I agree with that, but I have instinctive concerns about this proposal. First, what consultation has there been with the entertainment industry? This must be a matter of widespread interest. I cannot say that I go to musical events usually held in the open air—I go to rather staider events—but a lot of people will feel that they are being targeted by the measure. What consideration has been given to, first, whether there should not be a focus on the venue organiser rather than the individual, as this seems to be a matter of crowd control? Secondly, and perhaps more importantly, is there no other way than creating a new specific offence? If fireworks and flares are dangerous—I accept that they are—is this not about the misuse of fireworks rather than the place or event where they may be misused? As for it being a musical event, which is to be determined by regulations, that seems to raise all sorts of problems.
I appreciate that this comes from legislation about football matches, although the 1985 Act cited by the Minister seems a little narrower, unless I have misunderstood it, because the places where the person is found to be in possession are very closely defined, including an area,
“from which the event may be directly viewed”.
When looking up that section, I came across a petition to Parliament to legalise the use of pyrotechnics at football grounds. I could not find its date, but it was rejected on the basis that it was,
“a matter for individual Local Authorities”.
That confused me even more, but I wonder what relation that point has to the amendment.
I am sorry to throw a number of questions at the Minister, but I am sure that the Government considered them before proposing the amendment.
Lord Harris of Haringey
My Lords, I am not sure whether the thrust of the comments of the noble Baroness, Lady Hamwee, was to broaden or narrow the scope—
Lord Harris of Haringey
As ever, it was a quest for information. I also have a quest for information. It seems to me unduly restrictive to apply the clause simply to musical events. What about theatrical or other events which draw large crowds? The danger of either panic or direct harm from fireworks or similar things in such large, crowded places seems quite high. There is this careful definition of,
“sleeping or other facilities for those attending”,
a musical event. Surely concerns about someone possessing a pyrotechnic article in a general campsite or some other facility are just as great.
It would therefore be helpful to understand. The purpose is clear and valuable in terms of musical events and festivals but I wonder why similar consideration has not been given to other events where there will be large gatherings of people.
Lord Kennedy of Southwark
My Lords, this new clause is in general most welcome and I am happy to support it from these Benches. It seeks to ban the possession of fireworks, smoke bombs and flares by those attending live musical events. As we have heard, these are extremely dangerous and can burn at more than 2,000 degrees, as the noble Baroness, Lady Chisholm, outlined. There have been a number of injuries, and perhaps we may hear more about that when she responds.
I was surprised to learn that while these items are banned at football matches, it is not the case at musical events. A valid point has been made about widening the ban to other events. That should be considered, too, rather than just picking one area of a problem that may be more widespread. If I am correct, the amendment does not stop the organisers of the event using these articles but just protects the people attending, and prevents people putting them in their bags and setting them off recklessly in the crowd.
The other amendments are consequential. I am generally supportive of them but the noble Baroness, Lady Hamwee, made valid points that require a response from the Government.
Baroness Chisholm of Owlpen
I thank noble Lords who have taken part in this short debate and hope that I can answer their questions.
On the point regarding consultation, the proposed new offence is supported by the music industry. The national policing lead for festivals, Assistant Chief Constable Andy Battle of West Yorkshire Police, who is in charge of dealing with these sorts of events countrywide, has also welcomed the proposed legislation. Therefore, we have indeed consulted. In fact, organisers have already made it clear that fireworks should not be brought into festivals but feel that an offence is needed to provide better and greater deference to this understanding and to concentrate people’s minds.
Why does this apply only to music events? The data gathered by the crowd management organisation Showsec on behalf of Live Nation recorded 255 incidents involving pyrotechnic articles at live music events in 2014. This covered seven music festivals and other, smaller venues. This new offence is being created to target the specific problem of pyrotechnics at live music events. There is no evidence to suggest that pyrotechnic articles are a problem at other kinds of events, with the exception of football stadiums, which are covered under sporting events control.
The noble Baroness, Lady Hamwee, also asked about extending the ban outside the event. Extending the offence to include travel to a music event or festival would not only widen the scope of the offence considerably but put it at odds with current legislation on the possession of fireworks and flares. There are also practical considerations regarding how such an extension could be enforced. Police officers would need reasonable grounds to believe that individuals were travelling to a musical event with pyrotechnic articles in order to search them. In our view, this would be an onerous demand on police time. The national policing lead for music festivals, Andy Battle of West Yorkshire Police, agreed that any provision around travel would not be helpful and be problematic to enforce.
A noble Lord asked why fireworks could be included in the general celebration of the event by the organisers. We accept that pyrotechnic articles are often used as part of a performance, and we would not want to restrict that. The new offence will maintain the distinction between pyrotechnics authorised for use as part of a festival or event and those misused by the public. I hope that that has covered everything.
Baroness Hamwee
I did not express myself very well. I was not concerned about travel to the event. I was comparing the amendment with Section 2A of the Sporting Events (Control of Alcohol etc.) Act 1985, under which the offence applies when a person,
“is in any area of a designated sports ground from which the event may be directly viewed”.
I was comparing the two matters. That probably highlights the fact that musical events are different.
After hearing the response, I cannot help thinking that this is a matter of how people may use or misuse fireworks and flares in a much more general way. Does the noble Baroness know whether the regulations will address the definition of a qualifying musical event, or will they actually list particular events? She referred to the national policing lead for musical events; I had not realised there was such a post. By definition, that officer will not have given comments about events that are not musical events. If the noble Baroness has no further information—I appreciate that she may not, as we are becoming quite detailed—perhaps it is a matter for another day. But they are not invalid questions.
Baroness Chisholm of Owlpen
I might have inspiration from over my left shoulder. The offence will apply to a campsite adjacent to a festival and the regulation-making power will include a generic definition of a live musical event.
Lord Brooke of Alverthorpe (Lab)
My Lords, I beg to move that the clause do not stand part of the Bill and, in short, that it be deleted. If carried, the clause means that the definition of alcohol will be extended to cover all forms in which it might be presented. Specifically, it will cover powdered alcohol and vaporised alcohol, and it follows that they will then become regulated for sale in the UK under the Licensing Act 2003.
Yesterday we had a short debate on the action the Government are taking to address reports of increasing violence in prisons. The Minister replying referred to the White Paper, Prison Safety and Reform, in which there is a section on reducing the supply of and demand for illicit items. If I had been able to get into the debate yesterday, I would have asked the Minister to explain to the House how permitting for the first time in the UK the sale of powdered and vaporised alcohol will help to reduce the problems in prisons. I would be grateful if the Minister endeavoured to respond to that point. How can this change be justified against the background of the Government’s announcement last week that no-fly zones are to be imposed over jails in England and Wales to stop drones being used to smuggle drugs into prison grounds? It is against a background of numerous initiatives costing £1.3 billion that we are trying to tackle rising violence, drug use and other problems in prisons.
The Home Office may have consulted the drinks industry on this change, but did it consult its own Ministry of Justice, which is responsible for prisons, and the health authorities on how they view the proposals? I have tabled a whole range of Written Questions asking the Government about this topic and they have answered a fair number recently. I particularly asked if they would define the benefits of this change to the public. I have had no reply, so I should be grateful if the Minister told the House today what benefit the Government see from authorising the sale of powdered and vaporised alcohol.
Powdered alcohol has been around in some countries for quite a while—not vaping alcohol, which is a new development to which I will come back shortly. The production and marketing of powdered alcohol started to take off in the USA about two years ago—March 2015—when its sale was authorised by the federal bureau on drugs and drinks. This has been controversial in the States. Powdered alcohol can be consumed with fruit juices, water and other soft drinks. It can be mixed with other alcoholic drinks to double or treble their strength. It can be taken to and consumed in places where ordinary liquid alcoholic drinks cannot because they are prohibited, such as sporting and musical events, public places and on public transport. Powdered alcohol can be taken there because it cannot be detected. It can be baked, put into ice cream, and so on. A whole range of things can be done with it.
There has been an outcry in the States about the attempt to market and sell it. Opposition has grown over the months, and I understand that 27 states have banned its sale. The opposition has been such that there have been disputes about its legality, and the main producer of the main powdered alcohol—Palcohol—is having to take a different stance entirely to the one it adopted previously. It is interesting to note, too, that this year, Russia is banning the sale of powdered alcohol. Yet here we are in the UK contemplating legitimising its sale. It is true that it is not yet on sale here but as I pointed out to the Home Office, websites are already set up waiting to sell it online as soon as it is legalised for sale.
As the Home Office has conceded, alcohol in vaping form is already here. It is true that it is being presented as a novelty item, but how long will it remain as such? Indeed, is it being used as a novelty item? I do not think it will stay like that for long. The cigarette manufacturers are already moving big time into vaping. The CEO of Philip Morris, which has the big selling brand, Marlboro, and commands 30% of the market outside the USA, selling 847 billion cigarettes last year alone, said that he is on a mission to get millions more people vaping. He says he can see the day when Philip Morris stops selling cigarettes entirely, and will be totally into vaping.
So a big change is taking place—we will have a vaping future. Of course, it will not just be nicotine. Last week, I went to one of my local vaping shops in Battersea, which has 50 different vaping items on sale. As yet, they do not have alcohol, but when I talked to them about the possibility, they said, “Yes please, could you tell us when we can get our hands on it?”. The items they are already selling come from all different parts of the world, in all different concoctions. There must be a question from a health point of view about what people will be vaping and the effect over time on their health—even from what is currently available for sale.
Make no mistake: when we look at the future of vaping, what we are seeing is just the start of a major development and we should be aware of it—if indeed the Government intend to proceed with this measure. I hope they are prepared to think again. The truth is that powdered ethyl alcohol and vaping alcohol are mind and mood-altering substances little different to class C prohibited drugs, while those classified in the recently passed Psychoactive Substances Act 2016 will in due course cause the same kind of problems as the substances which have been previously been banned, if not more, particularly if vaping takes off on a big scale.
The Government should withdraw Clause 117 and to help them, I oppose its standing part of the Bill. To help them clarify the legal position—which is ostensibly their concern and why they are taking this action—I suggest they have a look at class C prohibited drugs and the Psychoactive Substances Act 2016 to see whether these substances should be so classified. If not, they should simply and straightforwardly be banned.
Lord Paddick
My Lords, I rise to pay tribute to the noble Lord, Lord Brooke of Alverthorpe, and his persistent campaign against powdered alcohol and vaping. I accept what he says about these things being mind-altering substances, but surely that is because they contain alcohol, which is an accepted mind-altering substance—no more, no less than that. I understand the concern about the way you take the alcohol. Vaping, I understand, gives a very instant hit, unlike drinking alcohol, where you get a delayed reaction. However, have we not learned lessons from the past about prohibition and, in particular, prohibition of alcohol, not being an effective way of dealing with these issues? On these Benches, we would say it is far better to regulate, license and control the use of these new substances, rather than trying to ban them.
Baroness Finlay of Llandaff (CB)
My Lords, my name is on this amendment and we are coming on to a whole series of amendments relating to alcohol. With all due respect, I do not agree that alcohol in these alternative forms should be looked at in the same way as alcoholic drinks consumed in a social context.
The great difficulty for us and the country already is the size of the problem. In 2014 there were 8,697 alcohol-related deaths. That was an increase on the previous year and alcohol-related harms are already estimated to cost the country £21 billion a year. We know that around 9% of adult men and 4% of adult women are not taking alcohol for social consumption, but because they have alcohol dependence. Sadly, only around 7% of them are accessing any kind of treatment, so we have a huge problem. When we look at the amount of alcohol-fuelled crime and at what victims have said, over half of all victims of violence felt that the offender was under the influence of alcohol, and that is without ways of boosting the potency of the alcohol that they might be taking.
When we look at young people in particular and alcohol-related harms among those aged under 25 from 2002 to 2010, alcohol-related hospital admissions increased by 57% in young men and by 76% in girls and young women. We have a massive, looming problem of alcohol addiction and harms. The consequences of that may be handed down to the next generation, given that we know that among 15 and 16 year-olds, 11% had sex under the influence of alcohol and almost one in 10 boys and one in eight girls had unsafe sex while under the influence of alcohol. Of course, unsafe sex leads to pregnancy.
It is also important to look at children who were excluded from school, because almost half of those were regular drinkers. This is nothing to do with people’s freedom to consume alcohol socially. This is pure alcohol harm. I do not see how a school will be able to differentiate powdered alcohol from sugar or any other substance, such as sherbet that a child has in their pocket. I do not see how prison services or others will be able to differentiate alcohol vaping devices from the other types of nicotine-related vaping devices or how they will be able to have any control over the consumption of these. I have a real concern, and the reason I put my name to this amendment is that these kinds of products fuel alcohol addiction and do nothing to enhance social interaction within our society; they specifically fuel dependence and all the harms that go along with dependence. I have yet to be convinced of any benefit whatever, given that other countries that have major problems with alcohol consumption have decided that these products are too dangerous. I suggest that we should follow their lead and not risk taking these substances which we will be unable to detect or police. By allowing them for sale, they can be used to spike drinks and increase the cost to the country of alcohol-induced harms.
Baroness Williams of Trafford
My Lords, Clause 117 amends the definition of alcohol in Section 191 of the Licensing Act 2003. The current definition of alcohol covers:
“Spirits, wine, beer, cider or any other fermented, distilled or spirituous liquor.”
The clause adds the words “in any state” to this definition. The purpose of this is to ensure that all alcohol, no matter in which form it is sold, is covered by the requirements of the 2003 Act.
In recent years novel products have appeared for sale in licensed premises, such as vaporised alcohol, which is designed to be inhaled either directly from the air or via an inhalation device. To our knowledge, those who have sold this form of alcohol have done so under a premises licence and there have not been problems.
However, in America there is a suggestion that a new product—powdered alcohol— may come on to the market in the near future. We wish to put it beyond doubt that alcohol, whatever form it takes, may be sold only in accordance with a licence under the 2003 Act. It is important that we make this legislative change before powdered alcohol comes on to the market. This clause will ensure that any form of alcohol sold to the public is properly regulated with relevant safeguards in place.
The current system of alcohol licensing, as provided for in the 2003 Act, seeks to promote four licensing objectives. These are: the prevention of crime and disorder; public safety; the prevention of public nuisance; and the protection of children from harm. The 2003 Act also contains a number of criminal offences, including selling alcohol to a child under the age of 18 and selling alcohol without a licence.
This amendment to the definition of alcohol will ensure that the four licensing objectives continue to be met despite innovations in alcohol products, and that the public, especially children, continue to be protected from irresponsible sales of alcohol. The clause will mean that there is no legal ambiguity over whether new forms of alcohol are covered by the Act and need an alcohol licence to be sold.
I recognise the concerns of the noble Lord and the noble Baroness, Lady Finlay. All we know about powdered alcohol is that it is alcohol in a powdered form. There is no evidence on whether it is more harmful than liquid alcohol, and we do not know whether it could be used in more harmful ways. The Government share the noble Lord’s concern that children may be attracted to this product. These are legitimate concerns. However, removing this clause from the Bill will expose an ambiguity in the law that could be exploited by those who seek to argue that these novel forms of alcohol may be sold without a licence. The Government have not sought to ban powdered alcohol because the licensing system contains safeguards to prevent the sale of alcohol to children and to protect the public from irresponsible sales of alcohol.
Powdered alcohol was authorised for sale in the USA in March 2015, although as far as the Government are aware, it is not yet on sale in the USA or elsewhere, including online. A number of states in the USA have banned powdered alcohol amid concerns about underage drinking. If powdered alcohol does come on to the market, the Government will monitor what happens in the USA and the UK, and keep our position under review. We are currently aware of only one company developing this product. It is designed to be mixed with water or a mixer such as orange juice or Coke to make a drink of the normal strength, for example, a single shot of vodka. While the licensed trade and licensing authorities are currently treating vaporised alcohol in the same way as liquid alcohol, the Government wish to ensure that there is no doubt about the legal position.
In considering this change to the definition of alcohol, the Home Office consulted key partners at two workshops held last summer. One included representatives from the Local Government Association, the Institute of Licensing, the police and PCCs, as well as licensing officers from seven licensing authorities. The second workshop included industry partners such as the British Beer and Pub Association, the Association of Convenience Stores, the Wine and Spirit Trade Association and the Association of Licensed Multiple Retailers. In these workshops there was agreement that the legal position of new forms of alcohol should be put beyond doubt. The police and local authorities were keen that licensing and enforcement decisions should be clear, while the industry representatives were keen to see clarity in the law so that alcohol licences continue to operate effectively and efficiently. In conclusion, removing the clause from the Bill would have the opposite effect to the one the noble Lord, Lord Brooke, seeks.
He asked about prisons. It may be helpful to mention that the legislative change does not affect the use of alcohol in prisons, which is prohibited. He asked what consultation we have carried out with health authorities. Home Office officials have discussed powdered alcohol with the Department of Health and Public Health England. No one has raised specific concerns about the potential harm of powdered alcohol and there is no evidence to suggest that this form of alcohol is more harmful than liquid alcohol. However, we will keep this under review if the product enters the market.
Baroness Finlay of Llandaff
Does the noble Baroness agree that the question is not whether the form of alcohol—that is, powder or liquid—is more dangerous; it is the quantity of the chemical C2H5OH that is the problem? The higher the concentration, the greater the harm, so an ordinary drink spiked with powdered alcohol will be much more harmful than the drink itself because it is a question of dose-related harms.
Baroness Williams of Trafford
I cannot disagree with the noble Baroness’s comments about the powdered form of alcohol. However, this obviously depends on what one compares the powder to. Some fairly lethal drinks are available. I am thinking of things such as absinthe, which was banned for years in this country. Every form of alcohol has the potential to do harm. As the relevant product is not yet on the market in this country, we will keep the situation under review.
Lord Brooke of Alverthorpe
My Lords, I am grateful to noble Lords who have contributed to the debate. I am particularly grateful to the noble Baroness, Lady Finlay, for her support. As noble Lords might expect, I am disappointed with the Minister’s response. Alcohol in its present form is very badly regulated in a number of areas. A Health Minister is present who knows about the major problems we experience with alcohol. We need to look constantly at the Licensing Act 2003 to try to improve the situation.
Alcohol will be presented in quite a different form from anything we have experienced previously. Make no mistake—it will come. The Home Office seems to be way behind on this all the time. There is a manufacturer of this form of alcohol in Japan, where it is available, and a Dutch producer. I believe that some has been produced in Germany as well, so it is coming on to the market. The existing Licensing Act will not be able to hinder this product’s portability. That is what has changed. You can hide it and move it anywhere, whereas beer in a bottle or glass is visible. That is the distinction and that is why this new form of alcohol is so different. When we see the difficulties in places such as prisons, and the steps we are taking to reduce violence in them and stop illicit drugs going into prisons, to say that the Government will meet what is primarily the drinks industry’s requirement to have the legal position clarified, in which it has a vested interest, is the wrong way to go.
There is a solution to this problem. My proposal would not legalise this product. We could ban it. We could also for the first time consider classifying it as a class C drug. That would frighten the drinks industry to death. We could also classify alcohol in this form under the Psychoactive Substances Act. I suggest that the Minister takes the measure away and reconsiders it in those terms.
Policing and Crime Bill
Wednesday 9th November 2016
(9 years, 5 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 55-IV Fourth marshalled list for Committee (PDF, 263KB) - (7 Nov 2016)
“and for this purpose the conditions of the licence are modified if any of them is altered or omitted or any new condition is added.”
Baroness Chisholm of Owlpen (Con)
My Lords, these amendments relate to alcohol licensing. In particular, they introduce two new provisions into the Bill which reform the late-night levy and place cumulative impact policies on a statutory footing.
Amendments 209D and 214D relate to the late night levy, which was introduced in the Police Reform and Social Responsibility Act 2011 and under which licensing authorities are able to charge a levy to those who are licensed to sell alcohol late at night in their areas, as a means of raising a contribution towards the costs of policing the late-night economy. The licensed trade plays an important part in our economy, and the Government’s Modern Crime Prevention Strategy makes it clear that we want to create a night-time economy that people may enjoy safely, without the fear of becoming a victim of crime; that in turn will help businesses to thrive. It is right that businesses which benefit from the late-night economy should pay towards its management when it is creating an additional burden on policing in that area. However, to date, only seven licensing authorities have implemented a late-night levy; that is fewer than anticipated when the levy was introduced in 2012.
Licensing authorities, the police and the licensed trade feel that the levy in its current form is inflexible. Currently, licensing authorities must apply the levy to the whole licensing authority area, and businesses which are not in night-time economy areas feel they are being unfairly charged. These amendments will allow licensing authorities to specify the geographical area, or several separate areas, where they will charge a levy because the night-time economy places a burden on policing, and they will be able to decide whether to include premises licensed to sell late-night refreshment in their levy. The provision of late-night refreshment is defined in the Licensing Act 2003 as hot food and drink sold to the public between 11 pm and 5 am. Such premises are often linked to alcohol-fuelled crime and disorder; for example, fast-food shops are often premises at which late-night drinkers congregate.
PCCs have told us that they would like a formal role in relation to the levy, and we think this is appropriate as 70% of the revenue raised must go to them. The amendment will allow a PCC to request that a licensing authority formally propose a levy, thereby triggering a consultation on whether to implement one in its area. It will need to set out its reasons for doing so with reference to the cost of policing incurred as a result of the night-time economy.
Finally, Amendment 214D requires licensing authorities to publish information about how the revenue raised from the levy is spent. Some licensing authorities do this already, but one of the key concerns of the licensed trade is that there is a lack of transparency about this.
Baroness McIntosh of Pickering (Con)
My Lords, I welcome the Minister to her place and thank her for the manner in which she introduced the amendments. I rise to raise the concerns of the committee to which my noble friend referred—the ad hoc post-legislative scrutiny committee on the Licensing Act 2003.
I am still relatively new to your Lordships’ House and finding my way around its rules and procedures, and my question is simple: is it normal procedure for the House to constitute, in this case, an ad hoc post-legislative scrutiny committee of 12 very keen noble Lords for an Act passed over 12 years ago? They are performing their duty with great vigour and energy, and—apart from me—with a notable degree of expertise, which I am benefiting from hugely. I also place on the record how well served we are by the clerk and his team in our work in this regard.
Bearing in mind that the committee was constituted only in June, we began our work then with a view to conducting post-legislative scrutiny of the 2003 Act and to reporting within quite a challenging timeframe of some nine months. For clarification, why have the Government, as the Executive, undertaken a separate exercise of their own at this stage to review in the Bill the operation of some items with a view to revising them—in this case, the alcohol-related provisions of the 2003 Act? It is clearly a source of some concern to its members that the ad hoc committee has not had a chance to hear all the evidence, or to reach any conclusions on the recommendations that it would wish to report to the House in due course in March.
I do not intend to take up time this afternoon looking at the merits of the arguments that the Minister has rehearsed but I would like to ask a question on the consultation, as a number of concerns have been raised about Home Office consultations and the evidence that we have heard. Can the Minister explain how wide the consultation has been on the provisions in this little group of amendments and how many responses have been received? Is it possible for the House, and indeed the committee, to have access to those responses? At this stage, I would like to focus more on the procedures and processes being followed rather than the merits, with which we are occupying ourselves on a weekly basis between now and the end of March.
I would like to go further than the Minister has said in the letter that I received, and which was brought to the attention of the committee at 9 am today. In my noble friend’s words, the Government will take into consideration the recommendations and conclusions of the committee in due course, and they and the Home Office will consider carefully what additional changes, if any, should be made to the Act and through connected legislation. Perhaps I may press the Minister this afternoon. I would like to obtain a commitment from my noble friend not to implement any of what will become the Policing and Crime Act before the committee has reported to the House—and therefore not before the end of March. That commitment would be welcome and it would be a matter for the House to take note of. I am sure it is one on which the Government would wish to be held accountable.
I repeat that we are in the middle of what we take to be very important work. An important task has been set for us by the House to scrutinise the provisions of the 2003 Act. We are still receiving evidence and have not yet reached a position on which we will form a view. This is also the first occasion I have sat on such a committee, let alone had the honour and privilege to chair one, so I would like to be clear whether this is the normal procedure for a Government to follow in these circumstances.
I also alert the Government to the fact that while we do not wish to quote any of the evidence—it is there as a matter of record on the committee’s website—it is true that some of the evidence we have received, both written and oral, conflicts with the position that the Government have set out to the Committee this afternoon. I would certainly welcome a concession from the Minister that it would be sensible to wait until such time as the committee has had the chance to hear and consider all the oral and written evidence received, and that we will be able in due course to reach our conclusions and recommendations—and that only then will the Government, if necessary, proceed to implement this policy. A commitment from the Minister that the Government will keep an open mind and revise the policy as set out in these amendments would be most welcome.
Baroness Henig (Lab)
I rise to support the noble Baroness, Lady McIntosh of Pickering, and to put on record how excellently she is chairing this committee. I am possibly one of the “keen” members of this body, as she put it to the Committee. We are reviewing the Licensing Act and looking at a whole range of issues; clearly, it is not just the issues in this set of amendments. We are looking at how the whole Act has operated in the 11 or 12 years since it was brought in. Members of this House will remember the high hopes that people had of this Act and the things that were said about it. It is therefore obviously timely that the Act should be reviewed, which is what the members of the committee are presently engaged in.
As the noble Baroness said, the committee has taken a lot of evidence, written and oral, covering among other things the slow introduction of late-night levies, which the Minister mentioned, and the effect of cumulative impact assessment. I say to the Minister that not much of the evidence we have presently accumulated in fact supports what the Government are putting forward in these amendments. I find it rather unsettling that we are engaged in this exercise on behalf of the House of Lords and then the Government suddenly come forward with amendments which cut across the review. It has rather unsettled the committee because it introduces elements that we did not realise were ongoing.
The Minister said that there was evidence supporting these changes. I do not want to go into detail at this stage or to quote selectively, which could be misleading at this stage and could give a partial view of the issues at stake. It is right that the committee should be allowed to conclude its review, come to a considered decision and present its report and proposals for change—if any—to the Government. All that should happen before any of these changes are brought forward. I listened with great care to what the Minister said and appreciate that she said that these changes would not be brought in before we made our recommendations. However, I hope that this is not just the Government going through the motions of letting the committee do its work and then coming forward with the amendments that they have set their heart on anyway. I hope that the Government will look carefully at what we propose—perhaps even to the extent of modifying their approach if the evidence justifies it.
The evidence in these cases should be paramount. It might well suggest that these amendments will not achieve their objective. In fact, I would go so far as to suggest that that may well be the case. It might suggest that, despite the Government’s impatience to get on with these matters, what they are doing may not be as effective as some other way of proceeding. That surely is the job we have been asked to do—and which I hope we will in fact carry out. So my hope is that our review will help the Government in the longer term. That is what we are trying to do. In a way, by coming forward with these amendments the Government are pre-empting our efforts to get a good outcome from the review of the Act. That is why I seriously hope that the Government will not just stay these amendments but listen carefully to what the review comes forward with, before deciding how to move forward.
Baroness Grender (LD)
My Lords, I, too, back the words of our able chair on this Select Committee, the noble Baroness, Lady McIntosh of Pickering. I support what she has said and I note from the letter which we, as members of the committee, received only at 9 am today that the Leader of the House said:
“I am, however, pleased to hear that members of the committee are likely to be bringing their live insights into the policy to bear when the amendments are considered”—
so I would hate to let her down. I would therefore like to address in particular the issue of the late-night levy, which, as the Minister said, was introduced in 2011 and has had only seven local authorities take it up—seven, out of all the possibilities. There must be a reason for that. Of all of those, I shall examine Cheltenham, where the council withdrew the late-night levy. It did so because it raised less than 39% of the projected first-year income of £199,000.
Baroness Hamwee (LD)
My Lords, I had assumed when I saw these amendments that there must be quite a degree of urgency to the matter, given that they were being introduced at quite a late stage in the Bill. I had not appreciated that the House had set up a Select Committee to look at the issue. I can well understand that a lot of points will have been raised. I remember the debates about the 70:30 split. I remember debates about whether that was the correct split: whether it should be 50:50 between the police and the local authority or indeed 70:30 in favour of the local authority. I am pretty certain that I moved some of those amendments.
The noble Baroness, Lady McIntosh, is being mild in her request to the Government not to implement these changes before the committee reports. Any amendments must pre-empt the committee’s decisions. Given the degree of confusion to which my noble friend referred and which I well accept, to have further changes to the regime on the statute book but not commenced cannot make the matter any easier for any of those involved. The proper approach would be for the Government not at this stage to proceed with the amendments unless there is a degree of considerable urgency—and I have not picked up that that is the case.
Lord Brooke of Alverthorpe (Lab)
My Lords, briefly, I am also one of the members of the Select Committee under the great guidance and wisdom of our chairman. I share the views that have been expressed and I shall not repeat them. Why was this particular area selected from the document on modernising the police? Why have a host of other amendments not been tabled to pick up the other recommendations that the police want to see implemented? There is almost enough here for a package rather than picking out individual bits. Why were other recommendations not acted on?
Lord Rosser (Lab)
The issue of the cumulative impact assessments was one that we pursued when the matter was discussed in the Commons. It is for the Government to say why they brought the amendments forward now. But, unless I am misreading the position, at least some of these amendments have some support. Unless I have misread the briefing from the Local Government Association, it supports Amendment 209C, which seeks to ensure that licensing authorities give regard to cumulative impact assessments, and Amendment 209D on late-night levy requirements.
Baroness Chisholm of Owlpen
My Lords, I thank all noble Lords who have taken part in this short debate. First, to answer my noble friend Lady McIntosh on whether there was any public consultation, in the summer of 2015 the Home Office held workshops with key partners. One workshop included the Local Government Association, the Institute of Licensing, licensing officers from several local authorities and representatives of the national policing lead on alcohol and the PCC lead on alcohol. The second workshop included industry partners such as the British Beer and Pub Association, the Association of Convenience Stores, the Wine and Spirit Trade Association and the Association of Licensed Multiple Retailers. A survey was sent to all licensing authorities. The Home Office received 32 responses, including one from the PCC working group on alcohol. There is no trade body that represents late-night refreshment providers.
We have heard today from many members of the committee. All I can do is reiterate what I said in my speech: we shall of course look carefully at the findings of the committee before coming to any final conclusions and before implementing the provisions. We will wait for the Select Committee’s report next March. As I said, these reforms were announced in the Government’s Modern Crime Prevention Strategy that was published this March, some two months before the Select Committee was established. The Government are keen to take the opportunity afforded by the Bill to legislate on these matters so that they can be enacted as soon as possible. But that does not change the fact that we shall wait for the findings of the Select Committee.
The 70:30 split was mentioned. This can be amended by secondary legislation, so there is no need to make provision in the Bill. As I have said, we will consider any recommendation the Select Committee may make on this issue.
The Government believe it is right to proceed with these amendments now, as alcohol provisions were included in the Bill on its introduction to the Commons in February—so this is an appropriate vehicle to legislate on the new measures. As the noble Lord, Lord Rosser, said, the Opposition tabled amendments on cumulative impact policies in the Commons and these government amendments respond, in part, to those Commons amendments.
Baroness McIntosh of Pickering
I am most grateful to the Minister for her reply, but can I just press her on the semantics? Could she give the House and the committee a commitment that the Government will look at our recommendations and consider revising the wording of the amendments that she has put before the Committee today if they conflict with the recommendations and conclusions that the committee reaches?
Baroness Chisholm of Owlpen
I cannot go further than I already have in saying that we will of course look very carefully at the findings of the committee before coming to any final conclusions. That is as far as I can go. Everything else is rather hypothetical at the moment.
Baroness Hamwee
My Lords, perhaps the noble Baroness can assist this Committee with the timing. I imagine that the Select Committee will probably be required to report in February, but this Bill is likely to have concluded its passage before then. As a result, I am unclear how recommendations from the committee can affect the content of the Bill, but she may have information about the relative timings that could help this Committee.
Baroness Chisholm of Owlpen
We will not pre-empt what the committee is going to say, so we have to wait until we hear from it.
Baroness Grender
The Minister has said we cannot deal in hypotheticals, and yet we are about to accept some amendments which may well, in the light of the conclusions of our committee, be hypothetical. It seems to me that the most sensible solution is to not currently have amendments in this area, because those very amendments may be hypothetical.
Baroness Chisholm of Owlpen
I think I explained that the reason we proceeded with the amendments was because the alcohol provisions were included in the Bill on the Commons introduction in February, so this is an appropriate vehicle to legislate on the new measures. That is why we have brought them forward now. This was discussed in the Commons, and these government amendments respond, in part, to the ones that were tabled in the Commons.
Baroness McIntosh of Pickering
Can my noble friend confirm that these amendments were not discussed in the Commons? I do not believe that their content was discussed. Just for the sake of greater clarity, all we are asking is that these amendments be stayed until such time as we have concluded our report. In the words of the noble Baroness, Lady Henig, we are trying to help the Government. We want to have good laws and legislation that works, but clearly, at the moment, late night levies appear not to be working.
Baroness Chisholm of Owlpen
We want good legislation as well of course and, as I think I said, we will look carefully at the findings of the committee before coming to any final conclusions. I think that is really as far as I can go.
“Cumulative impact assessments
(1) The Licensing Act 2003 is amended as follows.(2) In section 5 (statement of licensing policy), after subsection (6C) insert—“(6D) In determining or revising its policy, a licensing authority must have regard to any cumulative impact assessments published by it under section 5A.(6E) A licensing statement must—(a) summarise any cumulative impact assessments published by the licensing authority under section 5A, and(b) explain how the licensing authority has discharged its duty under subsection (6D).”(3) After section 5 of the Licensing Act 2003 (statement of licensing policy) insert—“5A Cumulative impact assessments(1) A licensing authority may publish a document (“a cumulative impact assessment”) stating that the licensing authority considers that the number of relevant authorisations in respect of premises in one or more parts of its area described in the assessment is such that it is likely that it would be inconsistent with the authority’s duty under section 4(1) to grant any further relevant authorisations in respect of premises in that part or those parts.(2) A cumulative impact assessment must set out the evidence for the authority’s opinion as set out in the assessment in accordance with subsection (1).(3) For the purposes of this section, “relevant authorisations” means—(a) premises licences;(b) club premises certificates.(4) A cumulative impact assessment may relate to all relevant authorisations or only to relevant authorisations of a kind described in the assessment.(5) Before publishing a cumulative impact assessment, the licensing authority must consult the persons mentioned in section 5(3).(6) For the purposes of the consultation, the licensing authority must provide the persons mentioned in section 5(3) with the following information—(a) the reasons why it is considering publishing a cumulative impact assessment;(b) a general indication of the part or parts of its area which it is considering describing in the assessment;(c) whether it considers that the assessment will relate to all relevant authorisations or only to relevant authorisations of a particular kind.(7) Where a licensing authority publishes a cumulative impact assessment, it must, before the end of each relevant period, consider whether it remains of the opinion stated in the assessment.(8) Before deciding whether it remains of that opinion, the licensing authority must consult the persons mentioned in section 5(3).(9) If the licensing authority is no longer of that opinion—(a) it must publish a statement to that effect, and (b) the duties in section 5(6D) and (6E) and subsection (7) of this section cease to apply in relation to the assessment.(10) If the licensing authority remains of that opinion, it must revise the cumulative impact assessment so that it—(a) includes a statement to that effect, and(b) sets out the evidence as to why the authority remains of that opinion.(11) A licensing authority must publish any revision of a cumulative impact assessment.(12) In subsection (7), “relevant period” means the period of three years beginning with the publication of the cumulative impact assessment or a revision of the cumulative impact assessment.””
“Late night levy requirements
(1) Section 125 of the Police Reform and Social Responsibility Act 2011 (late night levy requirement) is amended as follows.(2) For subsections (1) and (2) substitute—“(1) In this Chapter, “a late night levy requirement” means a requirement to pay a late night levy in accordance with this Chapter.(2) A licensing authority may decide that a late night levy requirement is to apply in its area or in a part of its area in respect of—(a) relevant late night alcohol authorisations relating to premises in the area or the part, or(b) relevant late night alcohol authorisations and relevant late night refreshment authorisations relating to premises in the area or the part.(2A) Accordingly, references in this Chapter to a late night authorisation to which a late night levy requirement relates are references to any relevant late night alcohol authorisation or relevant late night refreshment authorisation in respect of which the late night levy requirement applies.(2B) A licensing authority may decide under subsection (2) that different late night levy requirements are to apply in different parts of its area.”(3) In subsection (3)(a), after “supply of alcohol” insert “or late night refreshment”.(4) Omit subsection (4).(5) Schedule (Late night levy requirements) makes further amendments of Chapter 2 of Part 2 of the Police Reform and Social Responsibility Act 2011 (late night levy).”
Baroness Deech
“General duties of licensing authorities
(1) Section 4 of the Licensing Act 2003 (general duties of licensing authorities) is amended as follows.(2) After subsection (2)(d) insert—“(e) compliance with the provisions of the Equality Act 2010.””
Baroness Deech (CB)
Amendment 210 is in my name and the names of the noble Baronesses, Lady Thomas, Lady Pitkeathley and Lady Campbell—all former members of the Lords Select Committee on equality and disability, which reported in March this year. The report found many areas of transport, employment, education, communication and law enforcement failing in their impact on disabled people. We made recommendations that were carefully crafted to be cost neutral, or very inexpensive, and that would ensure a fair deal for the growing number of disabled people. Very few of our recommendations involved changing the law, but this is one of them. It is a simple, economic and transformative amendment, central to our recommendations, which would go a long way to adjusting our living environment to the needs of disabled and elderly people.
Licensing authorities have a duty, under Section 4 of the Licensing Act 2003, to promote, in their duties of inspection and licensing,
“the prevention of crime and disorder … public safety … the prevention of public nuisance; and … the protection of children from harm”.
Amendment 210 would add a fifth enforceable duty, namely compliance with the Equality Act. In taking evidence from disabled people and those involved with them, the Select Committee uncovered a weakness in enforcing existing duties, and at the same time found a way to improve life for disabled people and all of us as we get older. In their response to our report, the Government said that since the Equality Act already applied to businesses and employers, no more was needed, and that they were holding discussions with the hospitality industry to promote increased accessibility for disabled people. It is true that equality law applies across the board, but the issue is enforcement where equality is being denied. Sadly, it is clear that mere guidance and good will do not do the trick.
With this amendment, licensing authorities could require, for example, old and existing buildings to be made accessible. When they are out inspecting and find disabled facilities not being provided as they should be, they could review the licence. They could issue a warning or, in the last resort, remove a licence from an entertainment premises that refused customers because of their disability—or indeed sexuality or race—or charged extra to disabled visitors. At the moment, the licensing authority can only remind owners of premises of their duties under the Equality Act, and they have no teeth. Where the situation is not remedied, this amendment would shift the enforcement burden away from the individual disabled person or the person discriminated against—who, under existing law, have to take legal action on their own—to the local authority. It is self-financing. The functioning of this amendment would not depend on taxpayers’ money.
This extra condition in the Licensing Act would give local authorities in every sphere the power to say, “We are not going to licence you unless we see the premises are fit, or as fit as they can be, for disabled persons’ use”. The Select Committee learned that the National Association of Licensing and Enforcement officers would support this. Businesses that already comply would have nothing to fear from it. Indeed, some already behave as we would all wish. For example, Newham Council denied planning permission unless all new stations in Newham were step-free. By way of contrast, the committee heard evidence that new shared spaces and pedestrianised shopping areas were designed sometimes without regard to accessibility by disabled people. It is no answer to say, as Ministers tend to, that guidance to the authorities is all that is required. Guidance is no substitute for enforceability.
The United Nations Committee on the Rights of Persons with Disabilities carried out an inquiry into the condition of the UK’s disability programmes and reported on 6 October. The United Nations committee condemned the lack of cumulative assessments of the impact of cuts and other recent policies affecting disabled persons. It called on the UK to ensure that in the implementation of legislation, policies and programmes, special attention is paid to the most vulnerable disabled people and it requires the UK to report back on the steps taken to comply with the United Nations Convention on the Rights of Persons with Disabilities. That report is not out of date, it is bang up to date. Amendment 210 would not only go a long way to achieving the aims of the Lords Select Committee but would assist the Government in making a decent response to the United Nations committee and avoiding international opprobrium. I beg to move.
Baroness Thomas of Winchester (LD)
My Lords, my name is also on Amendment 210 which, as the noble Baroness, Lady Deech, has said, is one of the recommendations of our committee. I am particularly speaking about how the amendment would apply to existing, rather than new, premises. Before I go any further, I should say something about the Select Committee on the Licensing Act. I do understand what is being said but my mind goes back to the words of a pop song of the 1960s:
“Catch a falling star and put it in your pocket
Save it for a rainy day”.
This might be, “Catch a passing Bill and put it in your pocket”. That is an important point: maybe some Members do not quite appreciate how difficult it is to get Bills into the legislative programme.
The vague terms used by the then Secretary of State for Education and Minister for Women and Equalities in her evidence to the committee about spreading good practice rather than legislating in this area simply will not do, as it does not work. The licensing solicitor at Sheffield Council, Marie-Claire Frankie, was clear when she gave evidence to our committee:
“What could strengthen the licensing authority and give them the ability to enforce it is to make a fifth objective related to equality”.
She said specifically that a friendly word in somebody’s ear at the premises, even if followed up by a letter from the local authority, just did not work. She went on:
“For old and existing premises that transferred over before the Licensing Act, there is not anything that we can go back and revoke licences on or anything that we can add conditions on. Because of the licensing objectives, there is no way of getting it before a committee because they are not breaching crime and disorder; they are not committing public nuisance; they are not publicly unsafe; and they are not endangering children. If there was an additional objective relating to equality, there would be a mechanism to get it before a committee, to enable the local authority and the licensing authority to do something”.
We are talking only about reasonable adjustments, not a mandatory lift, say, if a small club, restaurant, pub or other entertainment venue is entirely upstairs. No one wants premises closed down, but what those of us who are disabled want is as much accessibility as possible, and we do not want to have to go to court to get such access. I hope the Government will accept the amendment.
Baroness Campbell of Surbiton (CB)
My Lords, I am also very pleased to add my name to Amendment 210 in the name of my noble friend Lady Deech, who I must say not only ably chaired the Select Committee on how disabled people are faring under the Equality Act but has become a passionate leader for access.
There is a recurring theme in responses to calls for statutory enforcement of disabled people’s access rights, which is that guidance and awareness is much better. This is clearly exemplified in the recent rejection of my amendment to the Bus Services Bill and the lacklustre response to the Select Committee’s report on how disabled people are doing under the Equality Act, as my noble friend Lady Deech has powerfully said. If guidance works so well, why, 21 years after the passing of disability discrimination legislation, are disabled people still denied access to so many pubs, clubs, restaurants and entertainment venues because they are inaccessible? Is it because we cannot enjoy ourselves? I do not think so. I believe there are two major reasons.
First, many service providers who operate from licensed premises are either unaware of their duties under the Equality Act or think they can ignore them with impunity—from the local publican to the London club owner. To most, it is a remote piece of legislation, and only a few understand its relevance. It does not touch the general day-to-day running of the business, so little thought is given to disabled people’s access needs unless these are brought to their attention, usually by a very frustrated and angry disabled person who cannot get in. However, if their licence to trade from those premises was in jeopardy of being withdrawn on the grounds of inaccessibility, the importance of the duty would be so much clearer and change would happen.
Secondly, disabled people, as has been said already, have borne the sole burden of enforcing their rights to social inclusion for years. These are the people least likely to have the resources to challenge a barrier-ridden society, especially when access to justice has become so difficult. So, venues and facilities are likely to remain inaccessible. Our Select Committee received a lot of evidence from witnesses illustrating this. In fact, while waiting to speak today I have received 21 tweets from disabled people telling me of pubs, restaurants and facilities in their area that they cannot get into— 21 tweets in just over an hour.
The Government need to back a more proactive enforcement stance. Compliance with the Equality Act should be added to the objectives of the Licensing Act to ensure that it is followed. When the Select Committee visited a local centre for independent living in Tower Hamlets, I was struck by the similarities of people’s experiences and frustrations with my own 25 years ago, when I was actively campaigning for the Disability Discrimination Act. They told me about the general reluctance to make reasonable adjustments, and the excuses are the same now as they were then: “no money”, “burden on business”, “more advice and guidance needed”. You name it, disabled people have heard it, year on year. Two weeks ago I was having a similar exchange with the Minister, the noble Lord, Lord Ahmad, over my amendment to require accessibility policies as a condition of granting a bus operator’s licence. Today is Groundhog Day, this time over empowering local authorities to withdraw a licence to trade or impose conditions if the Equality Act is ignored. This would not add duties—they are already in place—but it would help to enforce them. What is offered? More guidance. The status quo prevails.
No wonder disabled people are worn down and cynical. No wonder the UN Committee on the Rights of Persons with Disabilities believes the Government are failing in their duty to progress disability equality. This is not my idea of “a society that works for everyone”. I really hope the Government will break the mould today and seriously consider Amendment 210.
Lord Clement-Jones (LD)
My Lords, I shall speak to Amendment 214A, which I believe is in the same group. I had rather assumed that the noble Lord, Lord Brooke, was going to speak to his amendment, and I am quite happy to wait and let him do so now, as he is in the Chamber.
Lord Brooke of Alverthorpe (Lab)
My Lords, that is very kind of the noble Lord; I apologise for not being in my place. I shall speak to my Amendment 211. In doing so, I declare my interest as a patron of the British Liver Trust and several other charities related to health issues that arise from alcohol abuse. In particular, as I said earlier, I declare my membership of the House’s Select Committee on the Licensing Act 2003. One of the questions that we have posed in our call for evidence is:
“Are the existing four licensing objectives the right ones for licensing authorities to promote? Should the protection of health and wellbeing be an additional objective?”.
We have received a lot of evidence on this and continue to do so in the oral hearings that we are currently running, and I do not want to trespass much on the committee’s continuing review.
I know it could be argued in light of what happened in the debate relating to the previous amendments that maybe this should be left until the committee’s deliberations come out. Alternatively, the Government might argue that as Scotland already has a fifth objective relating to health and well-being, we might wait and see what develops with the Scottish position. However, given that I have seen the Government decide that they can put an amendment through and then stay their hand until such time as they receive the report from us, I think I am perfectly in order to move this amendment today and, I hope, persuade them that there is a case for it to be adopted. Maybe then we could wait until spring to see what comes out of the Select Committee’s review; and if the recommendation in its report is in accord with what I am putting before the House we could then implement it.
There are more pressing reasons why this needs addressing, even more than the earlier amendment about the conduct of affairs relating to alcohol at night. First, the noble Baroness, Lady Finlay, enumerated this morning a range of the problems that we continue to have with alcohol. However, the second and more pressing issue is that the topic on which this amendment has been brought forward is not a new one; I brought forward a Private Member’s Bill on it about two years ago, supported by the Local Government Association. We can go back quite some time to 2010, when the then Government were looking at the difficulties that had arisen then. They had recognised a problem with the 2003 Act. They then consulted on the addition of a specific prevention of health harm objective in the 2010 Rebalancing the Licensing Act consultation. Some 38% of the respondents were supportive, 37%—primarily the drinks industry—were against, and 25% were neutral. The Government decided not to legislate at the time but did not really explain why. They simply stated that they saw,
“merit in the proposal to make the prevention of health harm a material consideration in the Licensing Act 2003. We … will consider the best way to do so in the future”.
So we have been at this now since around 2010.
The reason why this is now becoming more imperative is that as time has gone by, while I concede that in many respects we are getting evidence that the 2003 Act has worked quite well in certain areas—we have seen less alcohol being drunk than was the case in 2003, though whether that is related directly to the Act is questionable, and there are fewer violent incidents and less crime associated with alcohol than perhaps was the case originally—on the other side of the coin we have seen a dramatic increase in the deleterious effects of alcohol on the health of the nation. We saw about 400,000 people being admitted to hospital in 2003 with health difficulties related to alcohol but the figure is now in the order of 1.2 million and is getting worse. The charity I am associated with, the British Liver Trust, is seeing an increasing number of people dying from liver disease, mostly associated with alcohol consumption and abuse, with increasingly a number of younger people being affected in that way. We now have 9 million adults drinking at levels that increase the risk of harm to their health, while 1.6 million adults show signs of full alcohol dependency. Alcohol is now the third biggest risk factor for illness and death.
I am speaking entirely personally here, not representing anything of the Select Committee’s view, but I believe that in many respects the 2003 Act is now out of date. It was designed in 2003 primarily to deal with the on trade, relating to pubs, clubs and fixed premises, where people in the 1990s and at the turn of the century drank. However, we have seen a complete shift over the last 10 or 12 years in the growth of the number of licences being granted—almost like confetti, in my view—to supermarkets, mini markets, small shops and even petrol stations. Almost everywhere you go now, you will find alcohol on sale. In a sense, alcohol has become an ordinary commodity. In supermarkets it is being sold no differently from soap powder or a tin of beans. It has become normalised in our community and has changed the culture. This needs to be examined to see whether it is moving in the right direction, in the same way as I argued earlier when noble Lords proceeded to pass the legislation regarding “will do” on introducing powdered alcohol into the community. Anything goes, we move towards liberalisation, and it gets worse in health terms.
In my opinion, the 2003 Act does not adequately deal with what is happening on the off side of the licensing trade. We now see big developments taking place online that were never envisaged when this legislation was laid before us. Amazon has a most amazing array of products. Noble Lords who like drinking a lot and cheaply should go on Amazon and see just what is on offer to them. It can be delivered in hours on any day of the week, any week of the year. It is available very cheaply right through the year. Before long, no doubt, we will have Uber doing similar deliveries as quickly as possible. In no way is that touched by the Licensing Act; it is a different world entirely.
People will argue that you cannot do anything with the existing Licensing Act because it relates solely to premises—“What does that have to do with health?”, “How do you prove it is damaging health?”, and so on. In my view, there are changes ahead. Most of the major supermarkets, apart I think from Morrisons, have plans to increase the number of convenience or metro mini markets around the country, moving away from big premises to smaller ones. They have plans to extend these around the country and I am certain, sure as night follows day, that they will all have a licence to sell alcohol. If we go in there and queue to pay at the till, we will find that alcohol is piled up to the ceiling all around us, not just in our full view but in the view of children. This is changing an attitude generally so that the commodity of alcohol is normalised and just becomes part of our way of life, but it is damaging health and we are doing nothing about it.
There is an opportunity, I believe, if we are prepared to consider what I am putting before us, to explore ways in which we could at least start to pull it back a little bit. That does not mean to say that we stop issuing licences, but we should attach conditions to those licences that would stop alcohol being sold at the front of the supermarket in everybody’s face. Asda managers have tried to do it voluntarily, but when they saw that their competitors were not doing it, they said, “Well, why the hell should we bother?”, and they went back to putting it at the front. The voluntary approach is not working.
We now have demands from the police, from the police commissioners, from the health authorities, from the BMA and from almost anybody you can mention who has an interest in the health side that a change is needed. It should not be attached solely to the way in which we have run the Act up to now based on the premise that we should look to do something on a cumulative basis. If there are far too many people selling alcohol in a particular area, there should not be further licences; or if further licences are given, there should be more stringent conditions that would be related to the changes in the health of the area affected. They are doing it in Scotland and they are making progress; it is high time that the UK should do the same.
Sarah Wollaston, the chair of the Health Select Committee in the Commons, is in full agreement on this, and wanted to table amendments herself for this change, so there is some good support in the Commons for it. If the wording is wrong, I offer the Minister my willingness to talk about a change in the wording to a form that would be more acceptable. If the noble Baroness, Lady Williams, is responding, I make a further suggestion, particularly because she comes from Manchester. That city will be the first test-bed area, where it will not only be responsible for health and care and well-being but have total control over its funding. I suggest we consider whether, in conjunction with Manchester, we might run an experiment in the north-west to see what we can do. Manchester would be up for it, and all the responsible bodies would welcome it. Accordingly, I would be happy to consider drafting an amendment to the Bill. We could then review the provision after, perhaps, two years.
I am open to a conversation on this, but we must do something. We cannot just leave it as it is, making all the excuses under the sun, saying that it is too difficult, and listening to the drinks industry—which, understandably, says, “We can’t do it; we shouldn’t do it; we don’t want to go near it”. For the sake of the health of the nation, and for the sake of the harmed, cash-strapped National Health Service, which has great problems ahead of it, alcohol is one of the major problems that we have to tackle. We should do it forthwith, without delay.
Lord Lester of Herne Hill
My Lords, during the Second World War, Archbishop William Temple once said:
“Whenever I travel on the underground I always intend to buy a ticket, but the fact that there is a ticket collector at the other end just clinches it”.
The reason why I strongly support Amendment 210, moved so powerfully already, is that it just clinches something that ought not to need an amendment of that kind. What it clinches is the need for licensing authorities to perform their duty by complying with the terms of the Equality Act 2010.
The noble Baroness, Lady Howe of Idlicote, when she was deputy chair of the Equal Opportunities Commission, and the noble Lord, Lord Low, with regard to the Disability Rights Commission, will both remember how those two commissions carried out strategic law enforcement functions effectively. The problem at present is that the Equality and Human Rights Commission, which has far too broad a mandate, especially in terms of human rights—it lacks needed resources and having priorities determined—is not carrying out the kind of duty in the way that was done by the previous equality bodies. It is not giving effective, strategic law enforcement. Therefore, there is no use relying on the admirable Equality Act 2010 by itself if it is not going to be translated into practical action.
Lord Wigley (PC)
My Lords, I apologise that I have not been able to take part in earlier discussions on this Bill. When you are a member of a party with one representative here, it is a little difficult at times. I am very keen to support Amendment 210, which relates to a matter very close to my heart. I declare my interest as a vice-president of Mencap.
In 1981, I was fortunate enough to introduce legislation—there are some Members in the Chamber now who were in the other place at that time—that became the Disabled Persons Act 1981. That provided for access to places for disabled people—buildings, places of entertainment, et cetera—that required a provision to be made. However, as the noble Baroness, Lady Deech, has said, the trouble is that there is no comeback. There were not enough teeth in that Act and there have not been enough teeth in successive pieces of legislation over the 35 years that have gone on since then. There needs to be the sort of provision built in here to ensure that what is agreed as public policy actually does take place. I press the Minister to seriously consider accepting this or bringing in equal provisions to ensure that this happens.
Lord Brooke of Alverthorpe
My Lords, I now speak to Amendment 212, which is on placing child protection as a statutory consultee for statements of licencing policy. The background is that, if we come back to the Licensing Act 2003, this is a modest attempt to add another objective. We have the protection of children from harm as one of the existing four.
Despite the existence of this objective, and the fact that Section 13(4)(f) of the Act recognises child protection as the body responsible for this objective, Section 5(3) does not include child protection as a statutory consultee in respect of statements of licensing policies—SLPs, as we know them. Every local authority is required to produce SLPs outlining how it aims to uphold the licensing objectives in its specific area. SLPs are important local documents and should be taken into account in all licensing decisions. As such, they are important in the way in which child protection issues relate to licensing, and should be highlighted and acted upon.
Under the present arrangements, statutory consultees are,
“(a) the chief officer of police for the licensing authority’s area, (b) the fire and rescue authority for that area, (c) such persons as the licensing authority considers to be representative of holders of premises licences issued by the authority, (d) such persons as the licensing authority considers to be representative holders of club premises certificates issued by that authority, (e) such persons as the licensing authority considers to be representative of holders of personal licences issued by that authority, and (f) such other persons as the licensing authority considers to be representative of businesses and residents in its area”.
The fact that no child protection body is included in that list of statutory consultees is a clear legislative gap, one that could easily be closed by this modest amendment. The greatly increased focus on safeguarding within licensing as a result of the Rotherham child sexual exploitation case suggests that there is now a pressing need for this.
Lord Clement-Jones
My Lords, this is a fascinating group of amendments, full of variety and suggestions of all kinds to the Minister. My amendment is no different: it adds yet another suggestion to her, which I am sure she will consider carefully.
I speak to Amendment 214A. The primary measurable success of reforms such as the Live Music Act 2012 and entertainment deregulation is that they have reduced costs and complexity for small-scale events, as well as tidying up primary legislation and how it interacts with guidance. I hope it is common ground that that is welcome.
However, despite these positive changes, the 2% dip in the music industry’s overall GVA performance in 2015, as reported in UK Music’s annual Measuring Music report, is attributable to a decline in concert revenue from grass-roots music venues. They provide an important mechanism for talent development and a means for artists to cultivate skills and access audiences. There are myriad examples of major stars who have had their beginnings in such grass-roots venues.
In 2015, there were 5.6 million visits to UK small venues, generating £231 million in spend in the process. More widely, the number of operating grass-roots music venues has declined by 35% in the past decade in London. However, the problem is not unique to the capital, with venues in Birmingham, Manchester, Edinburgh, Glasgow, Bristol, Plymouth, Newport and Swindon—to mention just a few—having either closed or had considerable threats of closure placed on their businesses in recent years.
Although not the sole cause of venue closures, restrictive licensing laws are often cited as a contributing factor. The existing licensing objectives under Section 4(2) of the Licensing Act 2003 reinforce perceptions that entertainment regulated under the Act is something to be controlled rather than enabled. The Act does nothing specifically to encourage cultural participation and enjoyment, for instance. This is a missed opportunity, given the importance of the Act in making events and activities happen. The lack of a positive licensing objective to support provision for entertainment can maintain prejudices between licensing authorities and licensees about their respective motivations. This is unhelpful in creating a licensing environment that works for live music. It is time for a change of approach.
As the noble Baroness, Lady McIntosh, and my noble friend Lady Grender reminded us, the House of Lords is currently conducting a post-legislative scrutiny inquiry into the operation of the Licensing Act 2003. UK Music, the umbrella body for the commercial music industry, argued during the inquiry that consideration should be given to the introduction of a new licensing objective,
“the promotion of cultural activity and inclusion”.
This would sit alongside the other licensing objectives and assist local authorities when discharging their functions.
The amendment would introduce a fifth licensing objective to address,
“the promotion of cultural activity and inclusion”.
It would sit alongside existing objectives and assist licensing authorities when discharging functions. Simple licensing conditions can lead to additional cost to the venue and result in less profit per event. Less profit means that a venue’s ability to attract quality acts will be reduced, and therefore fewer events will take place.
Research conducted by the Music Venue Trust, reported by the Mayor of London’s music venues task force, demonstrated that one London venue had more than 70 separate conditions on its licence. Another had its capacity set at the same level as before the smoking ban, despite the risk of fire now being reduced. We have been made aware that conditions related to music are still featuring on some small venue licences, despite the fact that they should be benefiting from the recent entertainment exemptions. There is clearly an argument to be had about the extent to which the spirit of the law and the decisions made by Parliament to deregulate are filtering down to licensing authorities.
Fundamentally,
“the promotion of cultural activity and inclusion”,
is necessary, as licensing authorities rely on the existing objectives, which are also supported by other pieces of legislation, when assessing complaints and applications. Despite music’s social, cultural and economic benefits, the Licensing Act’s existing objectives specifically make regulation of live music for larger venues a public order issue associated with nuisance, crime and disorder, public safety and protection from harm. That failure to have a licence for music could lead to criminal sanctions and penalties, such as large fines or terms of imprisonment, can reinforce negative perceptions in licensing authorities.
It is of course right that current licensing objectives relating to public safety, protecting children from harm, and the prevention of crime and disorder and public nuisance are given full consideration, but without a positive objective when responding to applications or complaints relating to entertainment, licensing authorities are not encouraged to acknowledge the economic, cultural and social benefits of these activities to local communities.
The recent revocation of iconic London nightclub Fabric’s premises licence has been well documented, with more than 150,000 people signing a petition seeking the intervention of the Mayor of London. I would not want to speculate that a fifth licensing objective along the lines for which I am arguing would have resulted in a different outcome in this instance, but I am certain that if it was in place, Islington Council would have had to be more mindful of the strength of feeling about Fabric and justify its decision in terms of the venue’s impact on public enjoyment as well.
Other countries and cities across the world are also looking at what they can do to preserve their venues by positive action. Put simply, a new licensing objective for,
“the promotion of cultural activity and inclusion”,
would not open the floodgates but provide a suitable test for licensing authorities to judge an application or appeal by assessing the wider public benefit that an event or venue may create, and help to prevent further unnecessary closure of our culturally important music venues.
At the very least, if the Minister cannot accept the amendment, I hope she will follow her previous practice in being prepared to speak to proponents of it and listen to the evidence that they put forward about the impact of licensing laws on grass-roots music venues. Her ministerial colleagues have been very helpful in amending planning guidance in this respect, which has helped somewhat in change of use for premises near live music venues. I hope that Ministers, having shown themselves sympathetic to grass-roots music venues, will continue in that vein and meet UK Music and the Music Venues Trust to discuss the issues further.
The Earl of Clancarty (CB)
My Lords, in particular, I support the amendment of the noble Lord, Lord Clement-Jones, Amendment 214A. He does not define cultural activity, but it would clearly include, at least in part, the night-time economy. There has in recent years been a perfect storm of circumstance for our night-time economy. Rising rents and business rates, property developments, noise complaints, complaints about anti-social behaviour and more have conspired to devastate our night-time cultural landscape. London alone has, in the past five years, lost 50% of its clubs and more than 40% of its music venues, but the same problems are afflicting towns and cities everywhere in the UK, and some cities abroad.
Having said that, closures often hinge on a single concern, which might have been avoided given a wider, more constructive approach. This problem has implications at many levels. As an economy, we will suffer in the long term, as the night-time economy is hugely important to the country. In 2014, it was worth up to £26.3 billion. It is part of what makes London, in particular, an international cultural city. Under the amendment, licensing authorities would see it as part of their remit to address head-on the problems facing their local communities in this provision. We risk parts of our towns and cities becoming night-time dead areas, which is not good for their safety or social fabric. We risk taking the heart out of many of our cities.
The closure of live music venues does not reflect decreasing demand from the public. Witness the protest against the closure of Passing Clouds, a live music and community venue in Dalston, earlier in the year. Events manager Gudrun Getz said that,
“property developers are seeking to cash in on the huge popularity of Dalston which we ourselves were instrumental in helping to establish”.
She also says that there is,
“a huge … fear in the community at the moment that we are going to lose all of our space and there will be nowhere for musicians to play”.
This would of course be a terrible loss for London and elsewhere in the country.
Baroness McIntosh of Pickering
My Lords, I congratulate noble Lords who have tabled and so eloquently moved and spoken to the amendments before the Committee.
Speaking in a personal capacity, I seek guidance from the Minister, who now has a wish list of an additional three or more objectives that could be included in the amendments. In her response, can she explain what original criteria were used to establish the original objectives, as set out in the Licensing Act 2003? More particularly, what is the distinction from what has been achieved by a piece of legislation from an earlier Conservative Administration, of which I am extremely proud, the Disability Discrimination Act? How is that different from Amendment 210?
I was struck by the words of the noble Baroness, Lady Thomas, about catching a falling star. I revert to the earlier theme of why this falling star has been snatched when we have a history over the past 10 or 15 years—possibly even 18 or 20—of every 18 months considering a police and crime or justice Bill that could have neatly included some of these amendments, certainly those that we looked at earlier. As well as “catch a falling star”, one could also say, “pick’n’mix” or “liquorice allsorts”. My favourite would be Mackintosh’s Quality Street but, sadly, there is no relation.
I conclude by paying tribute to the noble Baroness, Lady Deech, who chaired the earlier ad hoc committee with such distinction. I look forward to the Minister’s response.
Lord Kennedy of Southwark (Lab)
My Lords, we have moved on to another part of the Bill. I should declare that I am an elected councillor in the London Borough of Lewisham and a vice-president of the Local Government Association. I do not serve on the licensing committee of Lewisham Council; I have enough to do on the planning committee. However, many years ago, I was a member of the licensing committee of Southwark Council. In those days, we considered only music and dance licences. One still had to apply to the magistrates’ court for a late-night alcohol licence. That has all changed and these matters are now under the control of the licensing committee.
This has been an interesting debate on four important amendments, all of which I support. The noble Baroness, Lady Deech, and other noble Lords made very valid points in respect of licensing authorities’ compliance with the provisions of the Equality Act. This is an issue of enforcement, rather than advice and guidance. Being able to remind licence holders of their duty is not good enough because it has not worked as effectively as it should. We should force licensed premises to be able to be used by disabled people.
My noble friend Lord Brooke of Alverthorpe spoke about the need for a duty to promote health and well-being. Local authorities have such general duties but for there to be a specific requirement in respect of licensed premises is a new initiative. He made important points about the changes to availability of alcohol and consumption patterns. They have certainly changed. My noble friend was clear and we can all think back on how many pubs have closed while alcohol is more available in convenience stores and supermarkets. Things have changed in the past 20 years. He also made important points on the duty of authorities to look after young people and protect them from harm.
As regards the promotion of cultural activity and inclusion, the noble Lord, Lord Clement-Jones, has an impressive record in this House of standing up for live music and other cultural activities. He is right to stand up for grass-roots music venues, which have launched many a career in the entertainment industry. I agree with the noble Lord that music and other activities should be helped and supported where possible through the licensing system, rather than just regulated. I recall a debate on a different subject in the Moses Room, when we talked about a range of regulations that sometimes affect people going about their lawful business and allowing them to busk and so on. Decisions on this are being taken by officials of local authorities, rather than elected members, which is worrying. It is a slightly different but similar point. I also agree with what the noble Earl, Lord Clancarty, said about the industry.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, Amendments 210, 211 and 214A in this group seek to add to the list of licensing objectives under the Licensing Act 2003. In answer to my noble friend Lady McIntosh’s question, there are currently four such objectives. These are: the prevention of crime and disorder; public safety; the prevention of public nuisance; and the protection of children from harm. The promotion of the licensing objectives is of paramount importance when authorities make licensing decisions, and each one carries equal weight.
Amendment 210 seeks to add,
“compliance with the provisions of the Equality Act 2010”,
to the list of licensing objectives. As we have heard, the amendment flows from a recommendation made by the Equality Act 2010 and the Disability Committee, which reported in March. I was pleased to be able to respond in our debate on that. All four noble Baronesses who put their name to this amendment served on that committee.
The committee recommended that the Licensing Act 2003 be amended to make failure to comply with the Equality Act 2010 a ground for refusing a licence. In their response published in July, the Government argued that, as employers and businesses were already under a duty to comply with the statutory obligations imposed by the Equality Act not to discriminate against staff or customers, the Act offered sufficient protection. Accordingly, it would be inappropriate for the 2003 Act to duplicate the requirements of the 2010 Act, just as it would be inappropriate to make express reference to other legislation—such as the Health and Safety at Work Act 1974 or the Noise Act 1996—all of which places requirements and responsibilities on licensing authorities and licensees.
Moreover, if we were to apply the logic of Amendment 122 more broadly, we should also be amending the Gambling Act, and indeed many other statutes, to place analogous obligations on those undertaking other forms of regulated activity. To single out the operators of businesses licensed under the 2003 Act could be taken as downgrading the obligations on all other businesses to similarly comply with the requirements of the Equality Act. I am sure that noble Lords would not wish to give that impression.
This is not to say that those running licensed premises should not be doing more to facilitate access by disabled people. Earlier this year the Minister for Disabled People held a round table event with disabled people and the hospitality industry to lead to a better understanding by service providers and businesses and a commitment from them to improve access and attitudes. Organisations represented at the round table made pledges to improve accessibility to their premises and improve their customer service for disabled people. For example, the British Beer and Pub Association pledged to update and promote its guidance on accessibility in pubs. This gives pubs advice on easy changes they can make to improve their service to disabled customers. These are very practical steps which will help to improve the day-to-day experiences of disabled people.
Amendment 211, tabled by the noble Lord, Lord Brooke of Alverthorpe, seeks to add an additional licensing objective,
“to promote the health and wellbeing of the locality and local area”.
The Government are not unsympathetic to those who believe that there should be a greater role for public health within the licensing system, and we of course acknowledge the health harms attributable to alcohol. However, decisions under the Licensing Act have to be proportionate and made on a case-by-case basis. Unless it can be demonstrated that an application for a new licence is likely to undermine one or more of the licensing objectives, the licensing authority must grant the licence. The Government believe that any new licensing objective would need to be capable of standing alongside the existing objectives and function in the same way. Any new objective must therefore enable licensing authorities to determine whether it is appropriate to grant or refuse new applications, review licences and attach conditions or revoke licences.
Previous work has shown that it is difficult to establish direct causal links between alcohol-related health harms such as chronic liver disease and particular premises. Difficulties also remain with putting in place the necessary processes to enable the collection of such evidence—without which decisions based on health grounds would be unlikely to stand up to challenge. Work to date has established that the types of health data that are more readily accessible and most suited to use in a licensing context tend to relate to acute harms such as violent assaults and alcohol-related injuries. These harms, as well as most factors affecting well-being, such as crime levels and the welfare of children, can already be addressed through the existing licensing objectives, as demonstrated by the achievements of areas such as the Kensington area of Liverpool, Newcastle and Middlesbrough.
The Government will therefore continue working with Public Health England to facilitate access to local health data to inform decision-making within the current framework and to help public health teams play a role within licensing. Public Health England has also been testing a support package to assist with the development of local data collection and analysis based on lessons learned from the evidence-based work carried out in 2014-15. I assure the noble Lord that the Government continue to look at this matter seriously and will consider the findings of Public Health England.
Amendment 214A seeks to add,
“the promotion of cultural activity and inclusion”,
to the licensing objectives. This would require licensing authorities to consider the character of licensable activities, rather than purely protect against the potential harm caused by licensable activity. The existing licensing objectives seek to reduce harm that can be evidenced, and licence conditions which are intended to reduce the level of harm can be easily understood—for example, a requirement to restrict noise levels to prevent public nuisance.
It would be difficult to replicate this for “cultural activity and inclusion”, since this is quite a subjective matter and may be interpreted in different ways. For example, would a festival of Hindi films or Irish dance be considered good or bad in terms of cultural activity and inclusion? Making this a licensing objective could place licensing authorities in a censorious position, whereby licensees organising events might be obliged to explain what additional cultural value their entertainment might generate, and the licensing authorities would be required to evaluate that information.
The final amendment in this group, Amendment 212, seeks to add child protection bodies to the list of statutory consultees for statements of licensing policy. Each licensing authority is required to publish a statement of licensing policy and to revise it at least every five years. The statement sets out the general approach to making licensing decisions and managing the evening and night-time economy in the area.
Section 5(3) of the 2003 Act sets out a list of organisations and individuals who must be consulted when the statement is reviewed. The list includes the police, the fire and rescue authority and the public health body, but it is not intended to be exhaustive and therefore does not include all the responsible authorities. The 2003 Act does not prevent licensing authorities from consulting other bodies or persons as they see appropriate.
Lord Clement-Jones
My Lords, I am not quite sure that the Minister has answered anything to do with Amendment 214A.
Baroness Williams of Trafford
My Lords, I did. It may be that it was so dull a response that the noble Lord did not catch it. Shall I put it in writing and send it to him?
Baroness Deech
My Lords, I am grateful to the noble Lords who supported our Amendment 210, but clearly I am disappointed with the Government’s answer, which has not moved from the response issued several months ago, before the change of Administration. I thought that we were convinced: given that this Government have a target of halving the unemployment rate of disabled people and that the Prime Minister said in her first statement on taking office that this Government should work for everyone and allow everyone to reach their potential, surely they must move on this.
I have not heard a single argument to undermine the thrust of Amendment 210. The background is that disabled people gave evidence that the Disability Discrimination Act was a much better tool than the Equality Act, because the latter puts all the protective characteristics together and thus, although well-meaning, does not give sufficient weight to the needs of disabled people, who need a bit more than just equality.
Moreover, I take issue with the Minister’s saying that the amendment would simply duplicate the Equality Act. It does no such thing. First, it shifts the burden of enforcement away from the individual who is discriminated against to the local authority. That is the main aim. A pledge, I am sorry to say, is insufficient. If the entertainment industry gives a pledge, or if we all pledge to pay tax or obey immigration law, I do not think any Government would say, “A pledge, that’s just fine”. As has been proven, there are areas where one needs the teeth of the law. I appeal to the Minister: this Government should not appear hard-hearted. The Select Committee is offering them a way to respond to the United Nations’ inquiry which has so severely criticised this country’s approach to the needs of disabled people.
I have heard no reason why Amendment 210 should not pass. I cannot believe that the Licensing Act 2003 Committee, thorough though it is, will unearth any more than the Select Committee on equality and disability did. Once more, I appeal to the Government to accept the amendment and if they do not, I will emulate the advice given by the noble Baroness, Lady Thomas, and pursue this star all the way to the other end of the rainbow.
Lord Brooke of Alverthorpe
My Lords, when I was speaking, the Minister was nodding so much that I thought she was agreeing with everything. I now realise she was trying to fend off her cold, but I was pleased to hear that the Government are not unsympathetic to the health objective in Amendment 211, and I am aware of the difficulties of putting this in place; it is not easy. I am also aware of the work being done by Public Health England and others in association with the Home Office. I look forward to that materialising and hope it will be presented to the Select Committee.
I did not get an answer to my point about Manchester, to which I thought she was nodding. May I speak to her separately about that away from the Chamber, when we might try to explore using that new initiative for something quite different? I will look carefully at what she had to say on the children’s amendment and decide what further action, if any, I can take.
Lord Clement-Jones
My Lords, I may have blinked and missed the extended response I am sure the Minister gave. However, as I recall, it was simply that we do not need another licensing objective. Will she consider more carefully the question of whether other things could be done to encourage licensing authorities to take cultural matters into consideration in licensing, and in particular offer to meet those with an interest in this area, such as UK Music and the Music Venue Trust?
Lord Beecham
“Premises licence under Gambling Act 2005: gaming machines
(1) After section 172 of the Gambling Act 2005 insert—“172A Gaming machines: conditions on availability and use(1) The conditions which a licensing authority may attach to a premises licence under section 169 include a condition—(a) that no gaming machines for which the maximum charge for use is more than £10 may be made available for use on the premises, or(b) that the number of gaming machines of that description which may be made available on the premises must not exceed the number specified in the licence.(2) The conditions which a licensing authority may attach to a premises licence under section 169 also include conditions relating to the use of gaming machines; in particular, the conditions may include—(a) a condition that a person may not use a gaming machine unless he establishes his identity by the means and in the manner specified in the licence;(b) a condition that each payment for the use of a gaming machine must be made by the means specified in the licence and must be processed or approved by a person who, when the payment is made, is on the premises where the machine is situated and is acting in the course of the business carried on there. (3) The number of machines which may be specified for the purposes of subsection (1)(b) must be lower than the number of machines which is at that time authorised under section 172(8); but where the number of machines so authorised is subsequently varied—(a) the number of machines specified (or treated as specified) for the purposes of subsection (1)(b) is to be treated as varied by the same amount, and(b) the licence is to have effect accordingly.(4) A condition of the kind set out in subsection (2) may apply to gaming machines generally or only to gaming machines of a description specified in the condition.(5) In deciding whether to attach a condition of the kind set out in subsection (1) or (2), or whether to exercise the power under section 187 or 202 to add, remove or amend a condition of that kind, a licensing authority may give particular weight to the impact of the following on the promotion of the licensing objectives—(a) the number of other premises in the locality where the premises concerned are situated in which gaming machines are available for use,(b) the levels of crime and disorder in that locality,(c) the extent of social or economic deprivation in that locality, and(d) the proximity of the premises concerned to places habitually attended by children or other vulnerable persons.(6) In the case of a betting premises licence in respect of premises in Scotland other than a track, the licensing authority may add, remove or amend a condition of the kind set out in subsection (1) only if the licence was issued before 23 May 2016 (the day on which section 52 of the Scotland Act 2016 came into force).”(2) In section 172 of the Gambling Act 2005 (gaming machines), after subsection (11) insert—“(12) Subsections (8) and (10)(a) are subject to section 172A.”.”
Lord Beecham (Lab)
My Lords, this amendment stands in my name and that of the right reverend Prelate the Bishop of St Albans and the noble Lords, Lord Clement-Jones and Lord James of Blackheath. There are also two slightly different amendments in the group in my name and that of the right reverend Prelate.
Fixed-odds betting terminals are gambling machines housed up to four at a time in betting shops in high streets and other streets, especially in poorer areas. Here people have been able to wager up to £100 on a machine every 20 seconds. While this has now been reduced to £50, unless the gambler in question has opened an account with the gambling company, if different machines are used it is still possible to stake as much as that in such a short time. Moreover, Ladbrokes alone revealed in its last half-year report that it had given away £3.7 million in free plays on fixed-odds betting terminals in just six months, nearly twice as much as for over-the-counter betting, clearly using this device to promote this particularly addictive form of gambling.
These terminals were authorised, I regret to say, by the Labour Government in 2005 and, by 2013, there were more than 33,000 machines, generating profits to bookmakers of £1.5 billion a year. Ladbrokes alone declared a profit of more than £1,022 per machine per week. In January 2014, my right honourable friend Ed Miliband sought to promote legislation giving councils the power to reduce the number of machines in shops, and increase the time between bets. At this point I should refer to my interest as a councillor in Newcastle and an honorary vice-president of the Local Government Association. Despite expressions of sympathy and concern at the time by David Cameron, a Labour Motion on the issue was defeated by 314 votes to 282 in the Commons. During the debate, the then Minister, Helen Grant, said that the Government were waiting for the findings of a study into how the machines were used and the real impact on players before deciding whether action was needed. We are approaching the third anniversary of that statement.
There are now 35,000 machines, with a concentration in less well-off areas, to the extent that the 55 poorest boroughs have, in proportion to population, four times as many as the best-off 115. Newham, whose council is in the forefront of calling for action and is one of the most deprived boroughs in the country, has no fewer than 87 shops with these terminals. Together with 92 other councils, Newham applied two years ago to secure, under the Sustainable Communities Act, the power to license gaming premises of this kind. I understand that the Government are woefully behind schedule with a determination of that appeal, indicative perhaps of their failure to address problems occasioned by this form of gambling. Perhaps the Minister could inform us, if not today then in writing, when they will publish their decision on that application—these applications arise under legislation enacted by the coalition Government.
In addition to the economic impact on households that can least afford it, there are other troubling issues associated with this essentially exploitative industry. Betting shops take up prominent space in high streets and, even more troublingly, in addition to the impact on the finances, health and well-being of their customers and their families, they have led to a significant increase in crime. The number of times police were called to incidents in betting shops rose by 51% in 2014 from the previous year. In Newham, police are called out, on average, once every day in the year.
I raised the issue of crime in these shops in an Oral Question on 5 September, pointing out that betting shops accounted for 97% of all police calls to gambling establishments and, even more alarming, for 40% of serious crimes against all businesses. I pointed out that no fewer than 7,000 machines a year in these premises are destroyed by gamblers, and that violent assaults on staff are increasing.
In that context, it is telling that in some shops with fixed-odds terminals the staff member—it is usually only one person now in many of these shops—is not permitted to leave what is called his or her “cage” until 6.30 pm. They are confined to that space. That is supposed to enhance their security. Your Lordships may think it is a peculiar way of doing so, and an unsatisfactory one.
It is significant that, as I have been informed today, Ladbrokes is now purchasing chairs to go into these shops weighing 35 kilogrammes, making them too heavy to be used by customers to damage the premises or injure the staff. To some extent it is recognising in that particular and rather—one might have thought—peculiar way that there is a risk of violent crime on the premises.
The Lord Bishop of Salisbury
My Lords, I thank the noble Lord, Lord Beecham, for moving the amendment. I stand in place of my colleague the right reverend Prelate the Bishop of St Albans, who is unable to be here today, in support of Amendment 214, which would grant new powers to local licensing authorities in regulating gaming machines on gambling premises. As the noble Lord, Lord Beecham, has already made clear, there is a strong case for measures that will help local authorities tackle gambling-related crime to be included in the Policing and Crime Bill.
The figures on the rise of gambling-related crime are startling. From 2014 to 2015 there was a 50% increase in the number of incidents on gambling premises that required police assistance. The right reverend Prelate the Bishop of St Albans recently submitted a freedom of information request to the Metropolitan Police which found that there had been a 68% increase in the number of violent criminal offences at London betting shops between 2011-12 and 2015-16. It has recently been reported that around 40% of commercial robberies in London target betting shops.
There is likely to be a range of factors driving this increase in violence. Opportunism arising from the single staffing of betting shops is surely one of them. Another is the increasing reliance of high-street betting shops on fixed-odds betting terminals, or FOBTs. As a report from Landman Economics put it:
“It seems clear that violent behaviour in betting shops is on the increase and an increased proliferation of FOBTs—with increased numbers of players incurring losses from gambling on B2 machines—is a likely reason for this trend”.
There are countless recorded examples of so-called “FOBT rage”, in which customers destroy machines or assault staff after losing large sums of money. What is more, we know that a great number of these incidents go unreported by betting shops.
It is not just violent crime that is increasingly associated with FOBTs. In 2015, 633 instances of suspected money laundering were reported to the Gambling Commission by betting shop staff, and there is no way of knowing the full extent of the problem. Several local councils, including Hounslow, have also raised concerns that the anonymous nature of FOBTs lends itself to underage gambling. These concerns have led several local authorities to call on Her Majesty’s Government to grant them greater powers when it comes to imposing conditions on a gambling premises licence. This amendment therefore comes with the support of the Local Government Association, as well as with endorsements from the councils of Westminster, Brighton and Hove, Brent and Leeds.
The current licensing arrangements allow licensing authorities to impose a range of conditions on betting premises in order to ensure that the licensing objectives of preventing crime and protecting the vulnerable are upheld. However, licensing authorities are prevented from imposing conditions that affect the number or operational method of the gaming machines permitted under the licence.
Given that FOBTs now contribute well over 50% of the profits of high-street betting shops, that restriction seems like an outdated anomaly. Amendment 214 would either allow licensing authorities to limit the number of FOBTs permitted on a premises or allow them to impose conditions on the method of operation for gaming machines more generally—for example, by requiring account-based play or by requiring customers to confirm their identification with staff prior to play. By removing the possibility of anonymous play, not only would conditions such as these prevent money laundering and underage gambling but they would be likely to reduce the number of violent and aggressive incidents towards staff, while facilitating more effective implementation of self-exclusion.
Amendment 214 would also make it clear that licensing authorities do not have to assess licensing applications in isolation but can take into account the cumulative impact of a range of local factors in making a decision, whether they be social deprivation, local crime rates, the proximity of local schools or addiction treatment centres, or the presence of a betting shop cluster. Currently the legislation is not clear on this point, so the amendment would also provide licensing authorities with clarity and confidence about the options open to them. If Her Majesty’s Government are not willing to accept an amendment in primary legislation on this matter, I hope that they will issue clear guidance, particularly on the potential for licensing authorities to use cumulative impact assessments, through the Gambling Commission.
I should emphasise to the Committee that the amendment is not an attack on the gambling industry; it seeks only to give licensing authorities the tools they require to better enforce the existing licensing objectives. Licensing authorities would not be able to impose these conditions on a whim. They would have to show that conditions were proportionate and reasonable in protecting the licensing objectives. These new powers would make a real difference, not just in reducing crime but in protecting the vulnerable, and I hope that Her Majesty’s Government will consider them carefully.
Lord Clement-Jones
My Lords, having put my name to this amendment, I support Amendments 214—and 214CA in the name of the noble Lord, Lord Beecham—and endorse the argument so eloquently put forward both by the right reverend Prelate the Bishop of Salisbury and by the noble Lord, Lord Beecham.
We on these Benches have long advocated a reduction in the stakes of fixed-odds betting terminals—FOBTs—and the Government’s review is a welcome step, but it should not delay other forms of action to address the social harm caused by these machines. For years, local authorities of all political persuasions have implored the Government to allow them to tackle the blight on communities caused by FOBTs.
As we know, FOBTs can swallow £100 every 20 seconds, and bookmakers open multiple shops in deprived areas to facilitate as many machines as possible. There are double the number of betting shops in the 55 most deprived boroughs in England as in the 115 most affluent. This clustering of outlets significantly contributes to crime and anti-social behaviour, as both the right reverend Prelate and the noble Lord, Lord Beecham, mentioned.
That is why I and my colleagues back Newham and its 92 local authority supporters, representing 23 million people across the country, who have been calling for the dangerously high FOBT stakes to be reduced to £2, in line with other high street gaming machines. We hope that this will be the outcome of the belatedly announced triennial review.
FOBTs are highly addictive gaming machines, as we have heard, found in bookmakers across the country. The machines allow users to place bets of up to £100 every 20 seconds on electronic casino games. In 2015 gamblers lost £1.7 billion on FOBTs, and, as we heard from the right reverend Prelate, FOBTs now account for more than half of betting shop profits.
As we know from evidence from, for example, charities seeking to help people with gambling addiction, these machines are directly harming the young and vulnerable in our society, whom we have a duty to protect. Those who can least afford it are often losing vast sums of money. This is driving them towards mental health problems. We have even seen young men taking their own lives because of their addiction to these machines.
The impact of such losses—again, as we have heard—is leading to increased crime on Britain’s high streets. In a recent evidence session of the FOBT all-party group, Sir Robin Wales, the Mayor of Newham, noted that in Newham Borough there is one police call-out to a bookmaker per day, most commonly associated with a FOBT-related incident. In 2013 one of Newham’s 84 betting shops reported 112 incidents of anti-social behaviour to enforcement teams.
To date, the measures introduced to regulate these machines have been ineffective at best. Last year the Government introduced the Gaming Machine (Circumstances of Use) (Amendment) Regulations, which were implemented on 6 April. They require FOBT customers to authorise stakes of £50 or more via account-based play or over-the-counter staff authorisation. However, a study by Landman Economics in April 2016 demonstrated that the DCMS, in its evaluation of the impact of the regulations, was unable to determine whether the regulations on the £50 stake had in fact led to an increase in player control, let alone a reduction in the number of problem gamblers. Further, the bookmakers’ own industry code of conduct was found, in a report by the Responsible Gambling Trust, to be ineffective.
Calls for the regulation of these machines have been widespread, from parliamentarians, faith groups and mental health campaigners. Apart from the questions of lowering the stakes and reducing the spin rate, do the Government accept that local authorities have inadequate planning and licensing powers to address high-stake machine gambling on their high streets, to protect the most vulnerable, to tackle crime and to address the damage to local economies?
The Prime Minister, Theresa May, raised the issue back in 2005 of the harm caused by FOBTs. More than a decade later, she finally, as Prime Minister, has the power to take action. She has the opportunity now to protect the most vulnerable from exploitation by controlling high-stakes gambling on our high streets. These amendments would be extremely valuable additions to available regulation of FOBTs. I urge the Government to accept them.
Baroness Howe of Idlicote (CB)
My Lords, I support Amendment 214, in the name of the right reverend Prelate the Bishop of St Albans, who sadly, as we know, is not able to be with us today. Noble Lords will no doubt be aware that I have spoken in previous debates outlining my concerns about category B2 gaming machines—or FOBTs, as they are more commonly known. The right reverend Prelate’s amendment is a good step in the right direction and I hope the Government will feel moved to support it.
There are clear associations between problem gambling and FOBTs that cannot be ignored. A study conducted by Orford et al showed that 26% of the days spent playing on FOBTs were attributable to problem gamblers and 23% of all time spent on FOBT machines was attributable to problem gamblers. Likewise, according to GamCare’s 2014-15 statistics, 26% of the calls to GamCare in 2014-15 were made for help with issues associated with FOBTs. Problem gambling and FOBTs go together hand-in-hand, and we have a duty to do more to help those who are struggling and the communities blighted by to the proliferation of betting shops.
On top of this, betting shops with FOBTs have also been associated with anti-social and criminal activity on local high streets, which has also been mentioned. A 68% increase in violent criminal offences at betting shops between 2011-12 and 2015-16, identified in an FoI request made by the right reverend Prelate to the Metropolitan Police is simply not good enough. We must do more both to protect employees, as the noble Lord, Lord Beecham, seeks to do with Amendment 214CA, and to safeguard communities. Those stories which make national headlines—punters smashing up machines in betting shops after losing significant amounts of money—only scratch the surface of what is experienced by employees and communities on a daily basis.
In approaching this amendment, which is about the licensing regime for FOBTs, it is important to say a word about the history of the licensing of betting shops. In 2001, the then Government’s Gambling Review Report concluded that the system at the time—of considering likely demand for gambling provision when issuing premises licences—had the effect of stifling competition and allowing larger firms to monopolise control of the gambling market. The subsequent Gambling Act 2005, which came into effect on 1 September 2007, abolished the so-called demand test, replacing it with an “aim to permit” clause. This effectively placed local authorities in a situation where, on receipt of an application, their starting point had to be to look for a reason not to grant it, rather than to consider a reason to grant the application. The burden shifted to consideration of commercial interest first, rather than consideration of the impact on the consumer and the community.
Indeed, in evidence supplied to the Commons Culture, Media and Sport Select Committee for its 2012 report, The Gambling Act 2005: A Bet Worth Taking?, the London Borough of Haringey said there now seemed to be,
“almost no restriction on how many gambling premises”,
could operate in an area. Local authorities need help, therefore I particularly welcome Amendment 214, which would add a new Section 172A to the Gambling Act 2005. Proposed new subsection (5) would allow licensing authorities to take account of factors beyond simple commercial interest, such as proximity to schools, addiction centres or even existing betting shops.
With betting shops allowed four FOBT machines in one shop, there is clearly an advantage to opening several shops in an area to maximise revenue. Bookmakers made £1.7 billon on gaming machines between October 2014 and September 2015, of which category B2 machines —FOBTs—accounted for 99.7%. I reference page 1 of Ladbrokes’ own 2014 annual report, which has been mentioned. In Ladbrokes’ own words:
“Gaming machines and self service betting terminals drive growth”.
Proposed new Sections 172A(1) and 172A(2) provide sensible solutions by allowing licensing authorities to impose conditions on gambling premises, permitting them to have as few as zero FOBTs. They also allow licensing authorities to impose conditions requiring customer identification prior to play in an effort to address FOBT-related crime. The situation with FOBTs has been allowed to get out of hand and it is time the Government took a firmer grasp of it. Reducing the prevalence of harmful machines is a good thing and will make an important difference, but we can and should do even more, and I welcome the recent call for evidence issued by the Government on aspects of the gambling industry, including FOBTs.
I am also encouraged by the focus on reviewing stakes, which for B2 machines are far too high. Making machines less dangerous by reducing the B2 stake from £100 to £2, as the Bill of the noble Lord, Lord Clement-Jones, sought to do, should be our priority. I certainly will continue to advocate for such a change.
I strongly endorse Amendment 214, which represents a tangible opportunity for positive change which can be implemented now to help problem gamblers and their families, as well as communities and employees. I very much hope the Minister will support the amendment, as I, and clearly many Members in this Chamber, do.
Lord James of Blackheath (Con)
My Lords, in speaking to Amendment 214 I should declare two interests. First, I ran a chain of casinos in the Mediterranean at an earlier stage of my life, and I am therefore very familiar with the function of a roulette wheel. Secondly, I was chairman of the Jockey Club’s racing interests in the UK, so I was heavily dependent upon the profits coming from the bookmakers’ levy.
The Bill of the noble Lord, Lord Clement-Jones, was tabled several months ago and I am sorry that it has not gone further. In many ways, it is, as an entity, better than this amendment, and the Minister should give serious consideration to incorporating it into the Bill.
The points I need to make relate to the deep suspicions I raised at Second Reading about the honesty of the electronic roulette wheel in the FOBTs in reflecting the function of a roulette wheel, as I know it to be. I have probably done more analysis on this than anyone alive today, and I would like to do a lot more. I suspect two things are wrong with the wheels at present. First, they do not fulfil either of the two functions which I require as a standard for any honest roulette wheel. An honest wheel should result in 28 different numbers occurring in any sequence of 40 spins—that statistic is astonishingly accurate—and every number on the wheel should come up within a maximum of 121 spins. I have tested these theories over thousands and thousands of spins. For example, I tested the latter over sequences as high as 4,400 and found that there were 44 occasions on which each number came up a minimum of once, which confirms that theory.
As for the former theory, I cannot remember the name but I think it was the Gambling Commission that set up the original licensing arrangements for casinos years ago. It was an extraordinary commission because it went to the extent of installing a roulette wheel in its meeting room and having two croupiers spinning it all day long to observe what happened. As a result, it laid down very strict rules for roulette wheels. I can see no reason whatever why bookmakers should not accept the validity of the same rules for their electronic machines as for the metal and wood wheels in casinos. As things are, they produce very different results.
As a result of my criticisms, two days after our last debate I got a very angry letter from the bookmakers’ association. It said that I was a liar telling an untruth, was wholly wrong and was being offensive. I said, “I may be offensive but can you prove that I am wrong on the matters of fact? I want you to prove to me that you have a 28-number cycle in every 40 spins and that your whole wheel comes up in 121 spins. If you can’t prove that, then you are in fact dishonest in what you present as a functioning electronic roulette wheel”.
I do not believe they can do that but I would like the support of Parliament for this: I want them to give me a 5,000-number sequence for every electronic computer programme that they are running—and they have lots of them, as we have heard. They have so many different terminals that they cannot allow one programme to run so as to establish a pattern, because you could adapt the pattern from one and go and bet on it. You might be able to switch it down to your advantage and they will not do that. If they have six different betting shops, they will have six different programmes and I want those programmes to be subject to audit. I would like to audit them by matching with my own matrix, which I have developed. If they can give me 5,000-spin sequences certified by an accountant or a lawyer, it will take me six hours to say whether they have an honest wheel or not. I will do that for free for the whole industry, if it wants. If your Lordships think it sounds as though I need to get a life, you are probably right but I am obsessed with these numbers and I would love to do it.
In this case, I am so certain that it is wrong that after the previous debate I went on a betting shop crawl in Chichester, my nearest local town. I went round each of the main betting shops in it and sat down to watch what was happening on the electronic wheel. The first one that I watched was simply frightening. The man who had switched the machine on appeared to have £100 in folding money, well concealed in his pocket. He was pulling it out one £20 note at a time and feeding it in to charge it up. He had decided to bet on five numbers: 32, 15, 19, four and 21. These are the five numbers adjacent and to the immediate right of zero on the wheel. Effectively he should have had a six to one chance, as it is five numbers out of 37, but of course he was having to put a £1 chip on each of the five numbers. If he won, he got only £1 back for it and lost £4, so he was actually betting at 5.2 to one against in real odds. He would have had to have six successive win spins in a row just to break even on his £100—an impossible characteristic—yet the man was sitting down to give away £100, without any possible benefit coming to him.
The betting shop quickly moved in and asked me what I was doing. I said that I was doing social studies and I was told, “You don’t do them here—get out”. So I went off to the next betting shop and lasted about five minutes there as well. Eventually I went to six shops. What I found was a horrendous change that has occurred since the noble Lord, Lord Clement-Jones, brought his excellent Bill in. The spin cycle we were worrying about then was running at, I think, two minutes; it has now gone to 10 seconds. This is so fast that you cannot even think what your name is, let alone what you are betting on. At 10 seconds a spin, it is simply draining a man of money without any way of him knowing what he is doing. My great proposal to your Lordships today is: whatever we do with this clause or with the Bill of the noble Lord, Lord Clement-Jones, we should write in a demand to go back to a minimum of two or three minutes, or whatever it was to be. Any betting shop which does not do that should be summarily closed and will not be allowed to open until they have demonstrated the accuracy of their data in the form that I have dictated. They would be closed until further notice.
However, what I think is happening is that the bookmakers read our Hansard and decided to make a firm commitment to a betting cycle which would be better than the figure they were allowing. They have therefore decided to cut it to 10 seconds now, so that they will have more to negotiate and give away when the crunch comes. Let us put it in now and start closing them. We should get some authority in to stop this nonsense. Wherever there is a 10-second cycle going on in a betting shop, close it down now. We should do it urgently and make an example of them. I rest my case.
Lord Paddick (LD)
My Lords, I shall take a slightly different approach from that of the noble Lord, Lord Ashton of Hyde, and just say—I am sorry, I meant the noble Lord, Lord James of Blackheath; I am reading the wrong name on the annunciator. I do apologise. I do not know how the Minister can sit here hour after hour and hear the overwhelming evidence of the damage that these machines are causing and not do anything about it. This is an opportunity to do something about it. The Minister should grab it with both hands.
Lord Rosser
I thank the noble Lord, Lord James of Blackheath, for his contribution. I do not go into betting shops, but he has confirmed that I have only a marginally smaller chance of winning than those who do. My noble friend Lord Beecham and the right reverend Prelate the Bishop of Salisbury in particular have already set out the background to and concerns behind this group of amendments: concerns about the increase in reported criminal offences linked to betting shops, which has coincided with the proliferation of fixed-odds betting terminals. These criminal offences relate both to violence towards staff and to damage to property arising from losses incurred from gambling on these terminals.
There is a link between the use of fixed-odds betting terminals and their anonymity for user and money laundering, with one major firm fined some £800,000 by the Gambling Commission this summer over inadequate protection against money laundering. At present, licensing authorities can lay down a series of conditions on betting premises to help ensure that the licensing objectives of preventing crime and protecting the vulnerable are delivered and maintained. However, licensing authorities cannot limit the number of machines below the maximum of four per betting premise, and neither can they lay down requirements for the operation of gaming machines including fixed-odds betting terminals.
This group of amendments would, among other things, achieve these objectives by allowing licensing authorities to place conditions which could limit the number of fixed-odds betting terminals permitted under a gambling premises licence. Fixed-odds betting terminals now contribute, as I understand it, well over 50% of the profits of high street betting shops. These amendments would also allow licensing authorities to place conditions on gambling premises which would restrict the operation of gaming machines including fixed-odds betting terminals to people who have established their identity with the gambling premises concerned. This would assist in addressing money laundering and also help to reduce the incidence of violent disorders, including aggression towards staff, and the risk of under-age gambling. In both instances the licensing authority would have to show why these conditions were necessary to ensure that the licensing objectives to which I have already referred were delivered.
A further amendment in this group would also mean that licensing authorities did not have to determine each licence application in isolation. Instead, the amendment would make it clear that such authorities could take account of the cumulative impact on a range of local factors in making a decision—factors such as social deprivation and local crime rates, the creation of a betting shop cluster and the proximity of local schools or centres for other groups of vulnerable people. Such a provision in the relevant amendment in this group would better enable licensing authorities to protect areas that they considered at real risk of gambling harm.
The purpose of these amendments—as has already been said, Amendment 214, the main amendment, has the support of the Local Government Association—is to give local authorities a much-needed wider range of measures to enforce the existing licensing objectives. I hope that the Government will respond favourably. Surely local authorities are in the best position to know what is and is not needed in their own community. They should now have the necessary powers to deliver the existing licensing objectives.
Baroness Chisholm of Owlpen
My Lords, as the noble Lord, Lord Beecham, and the right reverend Prelate explained, these amendments would have the effect of devolving power over licence conditions for gaming premises and gaming machines to local authorities. The number of gaming machines authorised under a gambling premises licence is regulated by the Gambling Act 2005. Licensing authorities do not currently have the power to change this limit, and cannot impose licence conditions on gaming machines that relate to stakes or prizes. However, they do have licensing powers in respect of gambling premises. These include powers to reject an application for a licence and powers to impose other conditions, for example around opening hours. They can also review and revoke licences. The Department for Communities and Local Government also brought in new planning laws last year that ensure that applications to change, for example, a disused shop into a bookmaker’s office will need planning consent.
In looking to introduce this new clause, the right reverend Prelate is seeking to limit the number of fixed-odds betting terminals in bookmakers and casinos. The Government understand the concern that such gaming machines could fuel problem gambling and are committed to reducing the risks of potential harms associated with such machines. Indeed, last year, we introduced new regulations to ensure that players staking over £50 on these machines either had to open an account or had to interact with staff. Evaluation shows that there has been a significant decrease in players staking above £50. The Gambling Commission also introduced new social responsibility requirements last year, including measures that force customers to make an active choice on whether to set time and money limits while playing these machines.
In addition, the noble Lord, Lord Beecham, is seeking to enable licensing authorities to impose minimum staffing levels on premises with such machines. The noble Lord may have in mind a number of tragic incidents in high street bookmakers over the last few years. The Association of British Bookmakers’ Safe Bet Alliance provides specific guidance on staffing security in bookmakers, which was drafted with the input of the Metropolitan Police. Members of the Association of British Bookmakers operate single staffing only when a risk assessment has been undertaken.
Sections 167 and 168 of the Gambling Act 2005 empower the Secretary of State for Culture, Media and Sport to set mandatory and default conditions on premises licences via secondary legislation, which could include a condition setting staffing levels. This would be the preferred route to make such a change. In addition, I must emphasise that the Government believe that the appropriate mechanism for reviewing stakes and prizes, and gaming machine numbers, is the review announced on 24 October by the Minister responsible for gambling, which will consider these issues in a more holistic and comprehensive context.
My noble friend Lord James mentioned statistics about roulette wheels. I have to say that I got slightly lost in all the various numbers, which is not surprising considering that I was unable to add the 45 minutes when it came to the lunchtime break—but I certainly take his point and I listened with interest.
The noble Lord, Lord Beecham, talked about the Sustainable Communities Act. The Government are engaging with the LGA on this issue. The review announced on 24 October is the right mechanism to consider all these issues, and the Government invite Newham Council to take part in that review.
The Government are alive to the concerns about the dangers posed by fixed-odds betting terminals. As I have set out, we have already taken steps to tighten the controls on these machines and have set out our plans for the review of gaming machines, gambling advertising and social responsibility, which will include stakes on fixed-odds betting terminals. I am sure that the right reverend Prelate, the noble Lord, Lord Beecham, and other noble Lords will want to contribute to that review, and I encourage them to do so. The review will include a close look at the issue of B2 gaming machines—more commonly known as fixed-odds betting terminals—and specific concerns about the harm that they cause, be that to the player or the community in which they are located. The call for evidence period will close on 4 December, following which the Government will consider proposals based on robust evidence provided to assist in our decisions.
Given that this process is in train, I invite the noble Lord, Lord Beecham, to withdraw the amendment.
Lord Beecham
I thank the noble Baroness for her reply, so far as it goes, which I fear is not very far at all. If the Government are relying on the industry to come forward with proposals, many of us would be somewhat sceptical about a satisfactory result emerging.
I am not, as some of your Lordships will be aware, an enthusiast for secondary legislation but it seems to me that it would be sensible for the Government to take the power, at least, to regulate in some of the areas we have discussed, even if they do not want to incorporate the specific details of the amendments we have been discussing today in primary legislation. It would be a wasted opportunity, it seems to me, if, as I suspect, the gaming industry will not come up with satisfactory answers to the many questions which have been raised today, to then expect a further Bill to come forward. The legislative timetable, many of us will imagine, will be dominated by things of a rather more international flavour for the next few years, whereas, giving the power to regulate on issues of the kind we have identified here would be a much simpler parliamentary process and one which is quite appropriate.
I do not think that many of us in your Lordships’ House have any great confidence in the gaming industry’s willingness to address the problems that have been identified across the House this afternoon. While at this point I will obviously not be asking the House to divide, this is a matter that I hope the Government will consider in a constructive way before Report. I would be tempted, and will discuss this with other of your Lordships, to embody in resolutions on Report a power to deal with matters as I have suggested by way of secondary legislation, but it would be better if the Government took that step. No doubt the noble Baroness will be willing to discuss this with interested Members before Report, but as matters stand I beg leave to withdraw the amendment.
Lord Moynihan
“National anti-doping provisions
(1) Subsections (2) and (3) apply to—(a) all persons participating in sport in the United Kingdom who are members of a governing body of sport or an affiliate organisation or licensee of a governing body of sport, including national governing bodies of sport, regional governing bodies, sports associations, clubs, teams, associations or leagues (a “relevant body”);(b) all persons participating in such capacity in sporting events, competitions or other activities in the United Kingdom which are organised, convened, authorised or recognised by a relevant body;(c) any other person participating in sport in the United Kingdom who, by virtue of a contractual arrangement or otherwise, is subject to the jurisdiction of a relevant body for the purposes of preventing doping; and(d) any other person in the United Kingdom whether or not such a person is a citizen of, or resident in, the United Kingdom.(2) An athlete is guilty of an offence if he or she—(a) knowingly takes anywhere in the world a prohibited substance with the intention of enhancing his or her performance in any sports competition where there is a reward on offer, whether monetary or in terms of prestige, promotion or protection from relegation; or where that is one of his or her intentions; or(b) has been banned or suspended from participation in any sporting activity, or has been or is a member of any organisation which has been banned or suspended from participation in any sporting activity anywhere in the world, at any time either before or after the day on which this Act is passed; and(i) participates in any sports competition in the United Kingdom where there is a reward on offer, whether monetary or in terms of prestige, promotion or protection from relegation; and(ii) does not have a prohibited substance certificate dated not more than 14 days earlier than the date of the sports competition at the commencement of the sports competition. (3) In subsection (2) “prohibited substance certificate” means a certificate from a medical practitioner in the United Kingdom appointed by the General Medical Council for the purpose of testing athletes for prohibited substances, confirming that in the practitioner's opinion—(a) the athlete does not have any prohibited substance in his or her body, and(b) the athlete’s body does not retain any advantage in sporting performance by reason of the athlete having taken a prohibited substance at any time either before or after the day on which this Act is passed.(4) A person in the United Kingdom is guilty of an offence if he or she, with the intention of enhancing the performance of an athlete, encourages, assists or hides awareness of an athlete taking a prohibited substance with the intention of enhancing the athlete’s performance, or with that being one of the athlete’s intentions.(5) A medical professional commits an offence if, in the United Kingdom, he or she prescribes a prohibited substance to an athlete and believes, or ought reasonably to believe, that the substance will be used by the athlete with the intention of enhancing his or her performance, or if the professional fails to report any approach for a prohibited substance by such an athlete to the General Medical Council.(6) A member of an organising committee is guilty of an offence if he or she has not taken all reasonable steps to ensure that all athletes permitted to compete in a World or European Championship which he or she is involved in organising, convening, or authorising—(a) have not taken a prohibited substance with the intention of enhancing their performance; and(b) have not been banned or suspended from participation in any sporting activity, or been a member of any organisation which has been banned or suspended from participation in any sporting activity anywhere in the world, during the two years prior to the World or European Championship.(7) In subsection (6), “organising committee” means a Committee established in the United Kingdom on behalf of any international federation of sport, which is recognised by the International Olympic Committee.(8) For the purposes of this section a “prohibited substance” is as defined by the World Anti-Doping Agency or such other agency as shall be designated by the Secretary of State for this purpose.(9) Any person guilty of an offence under subsection (2), (4) (5) or (6) or shall be liable—(a) on summary conviction, to a fine not exceeding the statutory maximum or imprisonment for a term not exceeding six months, or both; or(b) on conviction on indictment, to a fine not exceeding the statutory maximum or imprisonment for a term not exceeding two years, or both.(10) In order to assist with the prevention of offences under subsections (2), (4) (5) or (6), UK Anti-Doping shall discuss the following issues with the World Anti-Doping Agency annually—(a) the effectiveness of Annex I of the International Standard for Testing and Investigations (athlete whereabouts requirements) and its harmonisation with the European Convention on Human Rights;(b) the effectiveness of the international work of the World Anti-Doping Agency; and(c) progress on the development of a United Kingdom roll-out of athlete biological passports.(11) UK Anti-Doping shall submit the results of the annual discussions under subsection (7) to the Secretary of State, who shall— (a) lay before both Houses of Parliament an annual report documenting—(i) whether the athlete whereabouts requirements are effective in combating doping in the United Kingdom and are in compliance with the European Convention on Human Rights, and(ii) the performance of the World Anti-Doping Agency in general in relation to its effectiveness in preventing offences under subsections (2), (4) (5) or (6); and(b) determine whether the Government should remain a member of and continue to support the World Anti-Doping Agency, in the light of that effectiveness.”
Lord Moynihan (Con)
My Lords, Amendment 214B is the product of some 30 years of discussions I have had with successive Governments, numerous reviews and ministerial answers, during which time many countries have now overtaken us and introduced legislation to criminalise the worst effects of doping in sport. So at least I am confident that the Minister will not be seeking more time to consider this very important subject.
I thank Her Majesty’s Opposition for the work they did in another place. My amendment follows the amendments tabled by Christina Rees, the Labour MP for Neath, who was supported on 24 April this year by Shadow Home Secretary Andy Burnham who said:
“People need to be able to trust that what they are seeing on the pitch, on the track or in the pool is real endeavour and not artificially enhanced. If you are using performance-enhancing drugs, you are not just cheating the other athletes but you are perpetrating a fraud against the paying public. For that reason, there is a clear case for it to be a criminal offence. We must send the strongest possible message that it will not be tolerated in sport”.
The amendments tabled today have also been actively discussed in informal conversations with the noble Baroness, Lady Grey-Thompson, from the Cross Benches and the noble Lords, Lord Campbell of Pittenweem, Lord Addington, and others, who have campaigned for many years on this subject. I am grateful to them for the interest they have shown and to colleagues on my side of the House for their expressed support. The Government should be in no doubt of the depth of support for these measures, both in the press and the country as a whole, not least in the wake of the banning of the Russian athletics team from the Rio Olympic Games this year.
The effect of the amendment is set out in proposed subsection (2). It seeks to deal with nothing less than fraud in sport. Those athletes who knowingly take performance-enhancing drugs from the World Anti-Doping Agency’s prohibited list with the intention of enhancing his or her performance to the detriment of the clean athlete—thus potentially denying the clean athlete selection, the prestige of winning or financial gain for professional athletes—would, if the amendment is passed, be guilty of a crime under the legislation.
Lord Rosser
My Lords, the noble Lord, Lord Moynihan, has explained the purpose of this amendment and the extent of its provisions. It is a very timely amendment: the Olympic Games in Rio were overshadowed by doping scandals. Russia was banned from the Paralympics, but did not receive a blanket ban from the main Olympics, despite the state-sponsored doping that had been exposed.
Now, a recent report from the World Anti-Doping Agency independent observers has highlighted failings in the anti-doping checks and procedures at Rio, which the report indicates put an almost unmanageable strain on drug testing during the Olympics. The result was that on Sundays, up to half of all drug tests did not take place because athletes could not be found at the athletes’ village or competition venues due to lack of support, training and information given to chaperones, whose job it was to notify athletes of testing.
Apart from management failings, the report also blamed the failings on budget and operational cutbacks. About 500 fewer drug tests were carried out at Rio than were planned, albeit failing a drugs test at the Games themselves suggests a competitor or their aides who are not particularly conversant with the ways of covering up the taking of drugs. In addition, more than a third of athletes competing in Rio were not subject to drugs testing before the Games in 2016, and of these, nearly 200 were competing in one of the 10 high- risk sports. Despite this report, the International Olympic Committee stated a day later that the report showed that it had been a successful Olympic Games with a successful anti-doping programme.
Doping issues are not, of course, confined to the Olympic Games. The Tour de France has not exactly been immune from them, and neither has tennis or football in this country, to give just three other examples. I suspect that most of us, including, not least, myself, just do not appreciate the full extent and breadth of prohibited substance-taking across different sports.
Prohibited substances, as the noble Lord, Lord Moynihan, has said, are taken to gain an advantage in sport over fellow competitors. They are taken to produce a false result which is not determined purely and solely by the skill and unaided effort of each competitor. That false result will at the very least be influenced—and at the worst determined—by the taking of a substance that improves performance unrelated to the skill or effort of the competitor concerned. It is a form of fraud. It is cheating—cheating not just fellow competitors but the public who paid to come watch the sporting event in the belief that they would see a fair competition with competitors competing on a level playing field.
The purpose of the amendment is, through a series of measures—including the creation, as in some other countries, of a criminal offence carrying, in exceptional circumstances, a custodial sentence—to throttle the deliberate and intentional use of drugs in sport by any person in this country or by any person in this country who,
“knowingly takes anywhere in the world a prohibited substance with the intention of enhancing his or her performance”;
or by any person, deliberately and intentionally, among other things, providing or administering to an athlete prohibited substances with a view to enhancing the performance of that athlete. The amendment also lays a responsibility on an organising committee.
The amendment would also require the Secretary of State to submit an annual report to Parliament which would include documenting the performance of the World Anti-Doping Agency in general in its effectiveness in preventing the offences provided for in the amendment, together with a requirement on the Secretary of State to determine whether the Government should remain a member of and continue to support the World Anti-Doping Agency.
The events before and during the Rio Olympics and the ever-increasing range of sports apparently affected by the use of prohibited substances suggest that doping in sport, including state-sponsored doping, is still not being taken sufficiently seriously by those at the most senior level who are in a position to stamp it out. The amendment is intended to toughen up our approach in this country to the serious problem of doping, including by people from this country competing, or assisting those competing, elsewhere in the world. We most certainly support it and hope that it will find favour with the Government.
Baroness Wheatcroft (Con)
I support the amendment. I cannot claim to be an expert on sport, but my noble friend Lord Moynihan most certainly is. His sporting legacy to this country is extraordinary, not least the performance of our team in the London Olympics, which was engineered by his work as chairman of the British Olympic Association, but also the extraordinary performance of our team in Rio. At first glance, the amendment appeared to be radical but, having heard the argument, I understand that we are lagging behind on this important front. That is not the right position for this great sporting nation to be in.
Beyond that, I fear that by not taking strong action against the use of drugs in sport, we are sending the wrong message to our youngsters, who look on sport as a career opportunity and wonderful thing, and to those who play sport as their great heroes. If people are banned from sport for a year or two and then come back, that seems to be acceptable. A prison sentence would be in a different league. That would send a message to our youngsters that this is something that they should not tolerate, and certainly not toy with. That is a very important message for this House to send. I support the amendment.
Lord Harris of Haringey (Lab)
My Lords, I, too, support the amendment. Like the noble Baroness, Lady Wheatcroft, I do not claim to be an expert in or have anything much to do with sport under most circumstances, but the amendment moved by the noble Lord, Lord Moynihan, is extremely important. This is about the confidence of the public and the importance to them of feeling that the sporting events they watch or participate in are genuine and not distorted in the way described. It therefore sends a powerful signal and if it indeed brings us back into line with other countries around the world, it is an extremely important thing for us to be doing.
My question—the noble Lord may have answered it in his remarks but if so I did not catch it—is: how broad are the sporting activities which the amendment covers? He talked about international sporting events, and we all have memories of what happened in the recent Olympics, in particular with the Russian team. However, as I understand it, the amendment covers all competitive organised sporting events where they are subject to a governing body. I should be grateful for that clarification and the extent to which it extends right the way through, because the governing bodies of the sports of which I have some knowledge are increasingly seeking not only to arrange the high-profile events but to encourage more people to participate at a lower level in local, regional or county events. It may be less likely that performance-enhancing drugs are used in those environments. However, I assume that this legislation is intended to pick up on those issues as well. It would be helpful if we had that clarity because it is important for people to have confidence in all sporting activities in this country, not just those at the highest level.
Baroness Chisholm of Owlpen
I am grateful to my noble friend Lord Moynihan for raising the important issue of tackling doping in sport.
This has been a difficult year for sport and those fighting doping—namely, the World Anti-Doping Agency, the International Olympic Committee and the International Paralympic Committee. We must recognise that these are global issues that cannot be solved by legislative action in any one country, although we must play our part. We are not complacent and continue to do all we can to protect the integrity of sport in this country, particularly where there is strong evidence that calls for government intervention.
As my noble friend mentioned, the Sunday Times allegations against UK Anti-Doping were disappointing to read. UK Anti-Doping immediately launched an independent investigation, the outcome of which recommended a number of actions to be implemented, all of which have been accepted by that organisation. Such action reflects the tough stance that the Government and UK Anti-Doping take on doping in the fight to provide a level playing field for our athletes to compete on.
My noble friend raises a valid point in saying that those athletes who dope are defrauding our clean athletes. We recognise that the desire to dope can be driven financially, and financial penalties are likely to be as damaging to those who cheat as a ban would be. However, the Government believe that rather than tackling this through legislation, it should be a matter for sports bodies. We recognise that a sanction in this regard could well act as a strong deterrent to doping cheats who represent the UK or compete in our events.
The UK Government and UK Anti-Doping have a reputation for taking a tough, measured stance on doping. To maintain that, we need to ensure that there is a strong evidence base before any consideration or commitment is given to taking forward any possible legislative options. In order to have that evidence base, the Department for Culture, Media and Sport is currently conducting a cross-government review of the existing anti-doping legislative framework and assessing whether stronger criminal sanctions are required. The relevant government departments and agencies, such as the Home Office, the Ministry of Justice, the National Crime Agency and the Serious Fraud Office, are contributing to the review. We expect the outcome of the review to be published before the end of the year.
In conclusion, I ask my noble friend to be patient for a little longer. The Government are very much alive to the issues he raised and are actively examining what more needs to be done. In fact, the Minister for Sport and Tourism, during a debate on 6 July on doping and the Olympics, said:
“The review is currently under way and, should it become clear that stronger criminal sanctions are needed, we will not hesitate to act”.—[Official Report, Commons, 6/7/16; col. 365WH.]
I hope, therefore, that my noble friend will be happy to withdraw his amendment.
Lord Moynihan
My Lords, I thank all those who have participated in the debate and shall comment briefly on the questions and points that have been raised.
First, the interpretation by the noble Lord, Lord Harris, of the reach of the amendment is correct and is set out in proposed new subsection (1). There is a real problem in the perception, for example among athletes and in the world of rugby, that the time to bulk out is when they are at university age or college age so that they can move on to the professional ranks. There are serious issues of doping in sport at that age, and I believe very strongly that when this is passed, as I hope it will be at some stage in the parliamentary process, it will be a very strong deterrent to those young people not to take performance-enhancing drugs.
The noble Lord, Lord Rosser, in a strong and comprehensive speech, focused on Rio. I would reflect on this one point about testing at the Olympic Games. If you test positive at the Olympic Games, you come into the category of the dopey dopers, because the chances are that if you are on drugs at that point, you will get caught. If you want to knowingly cheat fellow athletes out of selection, you take drugs now—in the winter months—and go to countries of the world were testing is non-existent and where you can be pretty sure you can spend four or six weeks enhancing your performance doing six circuits a day as opposed to a normal person’s three, and then retain the benefit of that muscle bank as you move into the summer season, having lost any trace of the drugs in your system. Indeed, you can take a range of drugs that act as a curtain in front of a play, reducing the chance that you will be caught as you move into the season. The huge amount of money that the World Anti-Doping Agency put into testing at the Olympic Games is effectively to catch the dopey dopers, not those who spend a lot of time and effort to enhance their performance during the winter months, and thus cheat fellow athletes out of selection.
I am very grateful to the noble Baroness, Lady Wheatcroft, for her overgenerous words. She was an outstanding member of the advisory board that helped to design and implement the work that the British Olympic Association did to ensure the success of London 2012—so she is being overmodest in saying that her knowledge of the world of sport is not as great as she might like. It is outstandingly good.
I am also grateful to the Minister. I absolutely agree with her starting point that the World Anti-Doping Agency needs to work in tandem with individual countries, working closely together to put in place an effective legislative framework to deal with this issue. However, it is not correct to say that leaving it completely to the World Anti-Doping Agency and to the sporting bodies will solve this problem. It patently is not solving the problem, which is the reason why so many countries are now legislating. Although they need to legislate in harmony, reflecting their own national interest, they have to legislate together, which is exactly what they are doing. In framing the legislation today, I have taken the example of the Germans, the Italians and the Dutch, who have focused on the fact that it is not just the athlete but the entourage who need to be criminalised. The deterrent effect in those countries of putting legislation on to the statute books has already been very effective.
Finally, on the end-of-year review, I said at the outset that I have been working on this since the Copenhagen declaration exactly 30 years ago, since when there have been so many reviews that it would take me a while to go through them all on Google. However, I always welcome further research and reflections from the Government. I note that they talk about the end of the year, which seems to be very close to our consideration of this legislation on Report. I therefore urge the Minister to see whether the review can be completed in time for Report so that we can take it into consideration. Even if it cannot, I would very much hope that, on Report, we can reflect on what my noble friend the Minister has said, as well as on the speeches made today from both sides of the House. We can then see whether we should send a legislative framework down to the Commons, so that in the new year, which is the likely date, Members can take into account the review to which the Minister alluded and, if necessary, amend the legislation at that point. We can consider any further amendments.
I believe there is widespread support for this provision both inside and outside the House and across parties. I very much hope this work will continue between now and Report, with further consideration on Report. In the light of that, and with my thanks to the Minister for her speech, I beg leave to withdraw the amendment.
Baroness Berridge
“Prescribed limit of alcohol
(1) In section 11(2) of the Road Traffic Act 1988 (interpretation of sections 4 to 10), the definition of “the prescribed limit” is amended as follows.(2) For paragraph (a) substitute—“(a) 22 microgrammes of alcohol in 100 millilitres of breath,”.(3) For paragraph (b) substitute—“(b) 50 milligrammes of alcohol in 100 millilitres of blood, or”.(4) For paragraph (c) substitute—“(c) “67 milligrammes of alcohol in 100 millilitres of urine,”.”
Baroness Berridge (Con)
My Lords, in moving Amendment 214C, I shall speak also to Amendment 214CB, both of which relate to drink-driving law. Let us imagine a world where you can pop to your GP and get a prescription for cocaine. If you want to lose weight, you not only have the choice of the 5:2 or the Atkins diet, but amphetamines are also prescribed by your doctor. On television there are advertisements of the health benefits of smoking cigarettes. Welcome to the United Kingdom in 1956, the year in which we set the level of alcohol you can have in your body and still drive legally. The law in England and Wales has remained unchanged since then. I hope these brief examples show how the greater understanding of the effect of drugs in the human body has changed laws in these areas and that we are well overdue a change to the drink-drive law.
I note at the outset that our law applies to all drivers: HGVs, taxis and bus drivers. For everyone, it is 80 milligrams in 100 millilitres of blood. Although for many years deaths and injuries caused by drink-driving have fallen, this is due to strong enforcement and other factors. In 1956, most cars did not even have brake discs, let alone servo-assisted brakes. You did not have to wear a seatbelt and airbags were still the stuff of fantasies. Your Lordships just have to cast your mind back to the series “Heartbeat”, and think of what the emergency services looked like then—the arched top of the ambulance, the canvas stretchers, the siren. There were no air ambulances, no fire crews cutting open the roof of your car, no fluids at the scene, no heart surgery by cracking open the chest at the roadside and there were no breathalysers at the roadside either.
We have much to be thankful for today. The police do a great job of enforcement, but they want the limit changed and it is high time we listened to them. Changing human behaviour, which changes in the law can bring about, is much more effective and cheaper in terms of human lives—most importantly—as well as financially, than relying on enforcing the law.
All other European countries have the lower limit outlined in Amendment 214C of 50 milligrams or below. All other common-law jurisdictions that I can find have done so as well. England and Wales stands alone. Scotland has changed the law to 50 milligrams and, as of 1 January of next year, Northern Ireland will have as well.
I have not owned a car for 10 years. I am an occasional driver and I am thankful that I have no direct personal experience of drink-driving accidents affecting my family. I am looking at this evidence as a lawyer and I am concerned that deaths from drink-driving have been static since 2010. We need something to prompt a further decline.
I note briefly three pieces of evidence that illustrate that these amendments are part of the answer. First, on reviewing all the available evidence, NICE in 2010 concluded:
“There is sufficiently strong evidence to indicate that lowering the BAC limit changes the drink-driving behaviour of all drivers at all BAC levels”.
The arguments here do not only revolve around those drivers who would fall within the new limit—those between 50 milligrams and 80 milligrams. This change is about all drivers and reducing drink-driving at all levels.
I have to stop here to note that only last night two teenagers lost their lives in Aldershot and a serving soldier has been arrested on suspicion of drunk-driving. This is about affecting the behaviour of all drivers in relation to alcohol. On the specific limit that is outlined in the amendment of 50 milligrams, the NICE report quotes a scientific review that states:
“Lowering the BAC level from 0.8 to 0.5 is effective”.
Secondly, on that specific reduction to 50 milligrams, which is something that Switzerland did in 2005, there was then a reduction in the number of those injured in alcohol-related crashes, according to the Swiss Council on Accident Prevention.
Thirdly and finally, 13% of all those who were breathalysed in 2014 in the UK following any road traffic collision were between the 50 milligram limit in the amendment and the current 80 milligram limit. In 40% of fatal accidents, the driver has alcohol in their system below the current legal limit of 80 milligrams. Around 240 families each year lose someone due to drink-driving.
We know that alcohol affects people’s driving. We have to think of how many collisions would be avoided completely if we reduced the limit. There is a roll call of organisations that are supporting the lowering the limit. These include the RAC, the RAC Foundation, the AA, Brake, the Institute of Advanced Motorists, the Parliamentary Advisory Council for Transport Safety, the Police Federation, the Royal College of Emergency Medicine, the College of Paramedics, the Fire Brigades Union, the British Medical Association, the Royal College of General Practitioners, the Royal Society for Public Health, the Alcohol Health Alliance and the Institute of Alcohol Studies. In fact, I not aware of a single similar organisation that is against reducing the drink-driving limit after 60 years.
Baroness Jones of Moulsecoomb (GP)
My Lords, I congratulate the noble Baroness, Lady Berridge, on tabling such a moderate amendment. I would have pushed for a much stronger lower limit. It is absolutely irresponsible for anybody to get into a car once they have had a drink. Here in Britain we have one of the highest limits in Europe. Some EU nations have completely banned drinking alcohol before getting into a car. Personally, that is what I would like to see.
The new limit would be equivalent to a pint of beer or a large glass of wine for a man and half a pint of beer or a small glass of wine for a woman. I argue that even that relatively small amount of alcohol affects your ability to drive. It reduces one’s inhibitions and perhaps one’s ability to speak clearly. If you drink that amount and then get into a car, you are making that car a dangerous weapon. I do not understand why it is acceptable to get into a car and then be likely to, or have the possibility, to injure or even kill somebody. Drink-driving led to 240 fatalities and more than 1,000 serious injuries in 2014, the last year for which we have figures. It is unreasonable to accept this number of deaths and injuries in our society. We should aim for zero deaths. The reason that so many drivers do not get killed any more is simply because of better medical practices. Help is given to them sooner and so they are more likely to kill or injure people outside their vehicle—pedestrians and cyclists.
We accept road deaths far too easily. I talk to people who say, “It just happens”, but it should not happen. Every death costs society over £2 million. That means every taxpayer pays for you getting into your car and going off and killing somebody. The £2 million cost is for social services, emergency services and medical services. We allow this ridiculous sum to happen on a regular basis.
We have not had the results of the Scottish trial yet, but Police Scotland said that in the nine months after the drink-drive limit was reduced in December 2014, the number of offences fell by 12.5%. That means people have been saved—they have not died or been seriously injured. There is also evidence that it has changed social attitudes. A December 2015 survey suggested that 82% of Scots now believe that drinking any alcohol before driving is unacceptable. That is the sort of thing that we should expect here in England as well. It is time to update this ridiculous figure, which allows somebody who has drunk far too much to be competent to get into a vehicle and be dangerous on our roads.
Lord Brooke of Alverthorpe
My Lords, I am very grateful to the noble Baroness, Lady Berridge, for bringing this amendment. I have long form on this one. I first chaired an EU sub-committee in 2001 that recommended we should fall in line with what was happening in Europe and go down to 50. I moved a Private Member’s Bill—this year or last year, I forget—that ended up going through Committee stage and everything. It cleared the Lords so your Lordships, I hope, have not changed your minds and are still in favour of this—as on the previous occasion when an amendment was tabled. However, there was no shift from the Government.
The noble Baroness, Lady Berridge, raised a very interesting point about how we come here with evidence and everybody seeks the change, yet the change does not take place and the deaths continue. She mentioned that there has been a plateau in the number of deaths. There was a decline from 2000 to 2010 but there has been little shift, other than last year when it went marginally up. When I concluded my last contribution on this I forecast—I cannot remember the number—the number of deaths that would take place over 2015, 2016 and 2017. In fact, I think I probably underforecast because of the rise last year.
The simple reason for that is that the Government do not have any initiatives of any importance that are going to change the course of events. It is bits and tiny pieces here and there when we should be looking at the policy that has been proven to work in Scotland. We ended up with the Minister last time saying he would have conversations in Scotland. The Minister for Transport at the other end also said that he would have conversations in Scotland and look at the evidence there, but I have had no further reports from the people I know on the outturn of those conversations and I do not even know if they have been held.
Perhaps the Minister will be kind enough to advise us on what is coming out of Scotland. The initial evidence there was certainly compelling enough to indicate that the change was working and that it had effected a cultural change—people were not even driving the following day. One of the problems you get with drink-driving is that people still drive the following morning when they are intoxicated. That had changed in Scotland to a fair extent. I hope it is being maintained.
I hope the Government are taking this seriously and that at some stage we are going to get a lower limit—even Malta, the last remaining European country with a higher limit, is committed to fall in line down to 50; we alone remain. Ireland has changed. Northern Ireland is changing. Wales wants to change. Yet England alone holds out, wanting to be convinced. The evidence of the deaths is there and it is time we did something about it.
Earl Attlee (Con)
My Lords, I wonder whether the Committee will permit me to speak even though I did not hear the start of my noble friend’s speech—for which I sincerely apologise to the Committee.
I am disappointed that some time ago I tabled a Written Question, to be answered by my noble friend Lord Ahmad for the Department for Transport, asking when we expected to get useful statistics from the experience of Scotland. Although noble Lords have pointed to positive changes in compliance in Scotland, we really need to see from Scotland figures relating to the number of drivers who are far in excess of the legal limit. The statistics for England are very interesting—I found them compelling when I had to answer on this issue at the Dispatch Box. If the Minister cannot tell me now, perhaps she can write to the Committee, but I should like to know when we will get useful statistics from the Scottish experience. That will be very important in informing the Government’s decision on whether we should go to 50 or remain at 80. It is the persistent, unregulated drinkers who have very serious accidents—but without the statistics from Scotland I think we would be making a premature decision.
Baroness Jones of Moulsecoomb
What does the noble Earl mean by “serious accidents”? People are being killed and seriously injured by those who have had a drink. A lot of the time those accidents are caused by people who have had far too much to drink but sometimes they are caused by people who have had a small amount to drink—but their faculties and ability to drive are lessened. So it is not just a question of drinking a lot; it is a question of drinking at all.
Earl Attlee
My Lords, I absolutely agree with the noble Baroness. Any alcohol whatever will to some extent cause a reduction in driving capability and increase the risk of having an accident. I am saying that we need to be careful and take advantage of a full range of statistics from the Scottish experience. I was disappointed with the Department for Transport because it could not tell me at what point it thought it would get useful statistics from Scotland.
Lord Paddick
My Lords, I am generally supportive of the amendments put forward by the noble Baroness, Lady Berridge. From my recollection of what she said, there was evidence of people involved in accidents who were not above the current legal limit but were above the proposed limit, and therefore there was some evidence that reducing the drink-driving limit would be beneficial. Am I wrong?
Baroness Berridge
If I remember correctly from the statistics provided by the Minister at the meeting, 3% of the fatalities are occurring within the 50 to 80 milligram limit. So there will be fewer deaths and correspondingly fewer injuries if we reduce the limit. There is then the added effect—and thus, one hopes, an exponential benefit—of changing everybody’s behaviour in relation to alcohol.
Lord Paddick
I am very grateful to the noble Baroness for that explanation. To some extent, although it does not provide evidence of the Scottish experience, it shows that reducing the limit could have an effect by reducing the number of accidents that cause fatalities.
There are a couple of things that I am concerned about. One is the extent to which a change in the law would have a deterrent effect in the absence of increased enforcement by officers involved in roads policing. We know how much police forces have had to reduce their budgets and reduce the number of officers. My experience is certainly that roads policing is one of the first areas on the list when it comes to reductions. Does the Minister have any information about the deterrent effect of roads policing in relation to drink-driving that we need to consider in addition to the reduction in the drink-driving limit?
The other thing that I am concerned about is the increasing amount of drug-driving—that is, people who drive under the influence of illegal drugs—with a potentially even worse impact on their ability to drive than if they had taken a drink. I wonder whether a lower alcohol limit would cause people to move to taking drugs rather than alcohol for fear of being detected as being above the new alcohol limit, with such a change therefore having a negative impact or an unintended consequence. I would be very grateful if the Minister had any information on whether that has been the effect in Scotland.
Lord Harris of Haringey
I sometimes wonder about the priorities of this House and of government in considering these sorts of issues. I think most of those who know me recognise that I am fairly hawkish on counterterrorism, but the number of people in this country who have died as a consequence of terrorist acts since 2005 is less than the number of people who die in a single year because of drunk-driving between the limits that are currently against the law and those proposed by the noble Baroness.
Let us go back over all the legislation since the current limit was introduced—the noble Baroness, Lady Berridge, took us back to what it was like in those times when we were all much younger—and consider how many pieces of legislation, full Bills, have been brought forward by the Home Office to deal with the threat from terrorism. It is usually about one a year, sometimes more—full Bills containing lots of new offences. Yet there is clear evidence that these new limits would reduce the number of deaths, they are fairly straightforward to administer and yet we keep waiting and putting off the decision. That seems to me an issue that we should all address, and we should be conscious that sometimes we have double standards. I will continue to argue for stronger counterterrorism, but it is rather striking that we do not resolve something like this, which would make a real difference, and would stop the wrecking not only of the lives of the families of those who have died but also of the lives of those who cause the deaths.
Lord Kennedy of Southwark
My Lords, Amendment 214C, moved by the noble Baroness, Lady Berridge, and supported by the noble Baroness, Lady Jones of Moulsecoomb, and my noble friend Lord Brooke of Alverthorpe, reduces the legal alcohol limits in England and Wales to match the limits introduced by the Scottish Government on 5 December 2014.
My noble friend Lord Harris made a particularly powerful point in respect of deaths caused through drink-driving. I am very supportive of this amendment, as I think we need tough laws on drinking and driving that are effectively enforced.
I also think that it would be quite good to have the same limit across the whole of Great Britain, and ideally the whole of the United Kingdom. This would make it much easier to understand for everyone concerned. I am also not against having a lower limit for commercial drivers and novices.
There is clear evidence that a reduction in the drink-drive limits would save lives. No one has said that is not the case. We have the highest limits in Europe. Only Malta has the same drink-drive limit we have in this country. The limit introduced by the Scottish Government is the same one that is in force in Austria, Belgium, Croatia, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Latvia, Luxembourg, the Netherlands, Portugal, Slovenia and Switzerland. So the case is powerful. In none of these countries is there a problem with the limit being effective.
The second amendment in the group, again in the name of the noble Baroness, Lady Berridge, and my noble friend Lord Brooke, seeks to create a lower limit for novice and professional drivers. Again, I think that this is something we should consider. Many countries have this. That is certainly the case in many of the countries I read out, including Ireland and North Ireland. I think that it is important, if you are a professional or a novice driver, to have a lower limit.
I passed my driving test 36 years ago. I remember getting my first car—you are let loose and you are in there on your own. If you think about it, you are not very experienced at that point. Therefore it would be a good to enforce a lower limit. The fact is that our limits are comparatively high. I hope the Minister will respond to the amendment moved by the noble Baroness, Lady Berridge. It is very good, and I hope that we will get a positive response from the Government. If not, I hope that the noble Baroness will bring it back on Report. I assure her that if she wants to test the opinion of the House at that point, we will support her.
Baroness Williams of Trafford
My Lords, I know that these amendments relate to concerns around the Government’s approach to drink-driving limits, particularly in light of changes in the law in Scotland and Northern Ireland, and, more recently, with a proposed change in Malta to lower the drink-drive limit. First, I emphasise that tackling drink-driving is a priority for the Government and that, together with the police, we continue to take robust enforcement action against this reckless behaviour.
Other countries may have a lower alcohol limit, but they do not necessarily have a better record on reducing drink-drive casualties. While it is difficult to make direct comparisons, some stark contrasts clearly exist between ourselves and our European neighbours. Estonia, for example, with a population of 1.3 million, has a limit of 20 milligrams per 100 millilitres of blood and carries out 10 times more breath tests than we do in Great Britain. Yet 160 people died there in 2014 as a result of drink-driving. That rate is 30 times greater per head than in Britain. Closer to home, we can look at France. With a similar population to us, it suffers nearly four times the drink-drive fatalities that we do. Even taking into account those cases that fall between its limit and ours, we perform significantly better.
In many of these countries a first drink-drive offence gets you a fine and some penalty points. Indeed, in Northern Ireland they intend to bring in a fixed penalty notice regime. They will hand out penalty points to those offenders found to be over the new limit but under the old one. There is no appetite amongst the public or road safety groups in England and Wales to reduce the penalties and not disqualify offenders who flout the law. Nor would we wish to create in the minds of potential offenders the thought that they might get only a fine and penalty points and so encourage them to drink and drive.
In England and Wales, the success we have had in tackling drink-driving has been down to the severe penalties, rigorously enforced and backed up with hard-hitting campaigns, which now make this behaviour utterly socially unacceptable. Our roads continue to be amongst the safest in the world because we crack down on those who break the law. Last year we made it a requirement for those convicted of drink-driving offences to undertake medical tests to ensure they are not still dependent on alcohol before they are allowed to drive again.
The same legislation, the Deregulation Act 2015, also made an important change to drink-driving laws by removing the so-called “statutory option”, which allowed drivers who provided a breath test that was slightly in excess of the prescribed limit to demand a blood or urine test back at the station. By removing this provision, individuals have been denied the chance to sober up and so drop below the prescribed limit while waiting for a blood or urine sample to be taken.
Yes, there is always more to be done, but harmonisation with other countries with a poorer record of tackling drink-driving is not a reason in itself to lower the limit.
Lord Kennedy of Southwark
In this debate no one has said that we want to lower the penalties—just to lower the limits. We have a good record in this country, and I give credit to our police service for that. The noble Baroness’s amendment is asking only to reduce the limits. She did not talk about penalties or enforcement, and, of course, as my noble friend Lord Harris said, if we looked at the number of deaths caused under the limit enforced now and above the proposed limit, we could save more lives.
Earl Attlee
My Lords, the arguments proposed by noble Lords are ones we have heard for many years. The arguments have not changed. Why, therefore, did the party opposite not lower the limit when they were in government? The reason is that it is a tricky issue.
Baroness Jones of Moulsecoomb
My Lords, we are not talking about the past but about now. We have an opportunity to do something now: to save lives and prevent serious injuries. I do not understand this reluctance to face facts. As the noble Lord said—is he a friend?
Baroness Jones of Moulsecoomb
As my noble friend said, we are not talking about comparing ourselves with other countries, and nor are we arguing for any other changes. We are not talking about drug-driving but specifically about drink-driving and the damage it does to innocent lives.
Lord Harris of Haringey
Since we are having open season during this intervention in the Minister’s speech, could we also deal with why other countries’ records are worse although they have tighter limits? This debate is not about behaviour in France, or in Estonia, and I do not want to get into a pre-Brexit rant about the behaviour of foreigners, or anything like that. If those countries felt that the problem was so bad that they needed to take even tougher measures, that is a matter for them. We are talking about proposals that would save lives in this country at the present time. That is what these amendments are about.
Earl Attlee
I hope the Minister will finish by saying that when we get the statistics from Scotland she will study them carefully and possibly review the policy. But claiming that lowering the limit will reduce fatalities is an assertion, and it is not necessarily the case. We need to wait for the evidence, particularly relating to fatalities caused by those people who are far over the limit. I do hope the Minister will say something useful about how she will take full account of the statistics we will shortly get from Scotland.
Lord Harris of Haringey
My Lords, we are in Committee and we can do what we like. The noble Baroness, Lady Berridge, put the argument very clearly in relation to the number of deaths that occur as a result of people who have more drink in their blood than the limit she is proposing but less than the current limit. If those deaths could be prevented that would be a net gain.
Earl Attlee
My Lords, I understand the argument but the difficulty is that those offences could just be caused by people making a stupid mistake and I am not sure that lowering the limit would solve the problem.
Baroness Williams of Trafford
My Lords, can I intervene on myself? I totally understand what noble Lords are saying. I am not trying to compare us to other countries but to demonstrate that where there is a combination of factors, such as enforcement and type of penalty regime, different results are thrown up. It is not just the drink-drive limit that has an effect, albeit that we have, of course, reduced ours—our enforcement is also very strong. I hope I have made it clear that it is not just the limit that is important but other factors, too. I am now going to provide a bit more detail, which noble Lords will be relieved to hear.
The Department for Transport collects coroners’ data. Of drivers killed on the road, over 72% have little or no alcohol in their systems—and I am talking here about 0 to 9 milligrams of alcohol, which must be less than a sip of a glass of red wine. So, the vast majority of drivers killed on the road have no or little alcohol in their system; I will leave noble Lords to conclude why. Just over 3% have a blood alcohol content between 20 and 50 milligrams per 100 millilitres of blood, while a similar proportion, just under 3%, were found to have between 50 and 80 milligrams. However, the proportion of drivers killed jumps significantly to 17% for those with above 80 milligrams in their systems. This is the evidence that shows us where the risk lies and therefore where we should target our efforts. But I emphasise that statistic about drivers killed on the road who have virtually no alcohol in their system—perhaps their deaths are a result of being elderly or less able to react to what is happening around them, but noble Lords will reach their own conclusions.
We do not, however, tolerate drug-impaired driving, which I think the noble Lord, Lord Paddick, asked about. That is why we introduced the new drug-driving offence in March 2015, setting specified limits for 17 drugs. The police are having success in taking these dangerous drivers off our roads and we are on target to convict over 7,000 drug drivers in 2016 compared to 879 in 2014. Indeed, 20% of drug-drivers convicted between 2009 and 2014 had previous drink-driving convictions. Our evaluation of the new drug-driving law has also highlighted just how dangerous these drivers are: 63% of those convicted in 2015 under the new Section 5A law had a previous conviction; 22% were serial offenders with more than 11 offences to their name. It means that we will be taking more than 1,500 drug- driving offenders who are also serial offenders off our roads this year.
Lord Kennedy of Southwark
The Minister said that the statistics on what is happening in Scotland will be available shortly. Is she telling the Committee that the UK Government will evaluate them when they become available?
Baroness Williams of Trafford
My Lords, the UK Government will look at them with great interest. There may be compelling evidence that comes out of them. Basically, the Government will look at them when they come out.
Earl Attlee
My Lords, it seems that we will have to wait a very long time for these statistics, until summer next year. It is possible that I am wrong in my position and that the statistics will tell us so. Is there nothing that can be done to speed up the production of the statistics? Perhaps the Minister would like to write to me on that point rather than answering straightaway.
Baroness Williams of Trafford
My Lords, we do not really have any jurisdiction to tell Scotland what to do about getting the statistics. I hope that they will be ready as soon as possible.
Baroness Berridge
My Lords, I am grateful to the noble Baroness, Lady Jones, and the noble Lord, Lord Brooke of Alverthorpe, for putting their names to the amendment—and for noble Lords making the most of the generous rules in Committee for debating this issue. I agree with my noble friend the Minister that changing the law will not change anything if we do not then support it with a campaign to make people aware. Clearly, we now have a cross-border issue anyway. We need to make people aware that there is a difference in the law as they drive over the border from Cumbria or Northumberland into Scotland.
I agree with my noble friend that it is clear from the statistics that risk increases exponentially over the 80 milligram limit. However, that is not to say that under that limit there is not a risk with which we need to deal. To say that we are just targeting the most dangerous individuals does not give any reassurance to an affected family member. We need to look at this again.
My noble friend outlined the figures from coroners about drivers killed on the roads. Because of the complex factors that I outlined on the law, enforcement and the safety of vehicles, 60% of the people who are now injured or killed are not the driver of the vehicle concerned. People should be able to walk or cycle down the street and not be concerned that there are people with an amount of alcohol in their blood that affects their safety. That is why we do not look at the limit over which risk rises exponentially for train drivers and airline pilots. We say that they cannot drink. Why, then, do we have a different attitude on the roads? That is not sustainable.
As a lawyer, I do take into account the argument of my noble friend Lord Attlee who asks whether we can prove beyond reasonable doubt that taking this limit down from 80 to 50 will definitely save lives. I cannot prove this to an absolute certainty, but on at least the balance of probabilities. Reducing the limit from 80 to 50 in Switzerland—and the Swiss are known for being compliant people—produced evidence of a reduction in injuries and deaths. There is evidence out there to say that if we reduced the limit along with maintaining compliance, telling people and promoting messages, we would, with very little effort, stand an incredibly good chance of reducing the number of deaths on our roads.
This is an amendment for which the Police Federation are asking. The police are our enforcement. I commend their enforcement as well as the amazing medical care that is all part of this picture. However, we now need to play our role. Therefore, I hope that my noble friend the Minster will go away and reflect. Although the Chamber is not well populated and we have not heard from the often influential Cross-Benchers on this matter, the feeling in this Committee is that this is something that we could do and that at this stage we have enough evidence to change the law. Now is the right time of year.
I thank my noble friend the Minister. I hope that we shall hear of a change of position but at this stage I beg leave to withdraw the amendment.
“SCHEDULE 15ALATE NIGHT LEVY REQUIREMENTS1 Chapter 2 of Part 2 of the Police Reform and Social Responsibility Act 2011 (late night levy) is amended as follows.2 (1) Section 126 (“relevant late night authorisation” and related definitions) is amended as follows.(2) In subsection (2)—(a) for ““Relevant late night authorisation”” substitute ““Relevant late night alcohol authorisation”;(b) after “licensing authority” insert “, a late night levy requirement”;(c) at the end of paragraph (b) insert “(whether or not it also authorises the provision of late night refreshment at a time or times during such a period)”.(3) After subsection (2) insert—“(2A) “Relevant late night refreshment authorisation”, in relation to a licensing authority, a late night levy requirement and a levy year, means a premises licence which— (a) is granted by the authority, (b) authorises the provision of late night refreshment at a time or times during the late night supply period on one or more days in the related payment year, and(c) does not also authorise the supply of alcohol at a time or times during any such period.”(4) After subsection (3) insert—“(3A) Where a licensing authority decides under section 125(2) to apply a late night levy requirement in respect of both relevant late night alcohol authorisations and relevant late night refreshment authorisations, the licensing authority may determine under section 132(1)—(a) a single late night levy period that is to apply in respect of both kinds of authorisations, or(b) two late night levy periods, one of which to is to apply in respect of relevant late night alcohol authorisations and the other of which is to apply in respect of relevant late night refreshment authorisations.”(5) In subsection (5), for “The late night supply period” substitute “A late night supply period”.(6) In subsection (8)—(a) for “the late night levy requirement” substitute “a late night levy requirement”;(b) omit “in its area”.3 (1) Section 127 (liability to pay late night levy) is amended as follows.(2) In subsection (1)—(a) for “the late night levy requirement” substitute “a late night levy requirement”;(b) after “the area” insert “or part of the area”;(c) for “a relevant late night authorisation” substitute “a late night authorisation to which the requirement relates”.(3) In subsection (2), for “a relevant late night authorisation” substitute “a late night authorisation to which the requirement relates”.(4) After subsection (2) insert—“(2A) In addition, if the requirement relates to a late night authorisation that is a relevant late night refreshment authorisation, the holder of the authorisation is not liable to pay the late night levy for a levy year if only hot drinks are supplied (or held out for supply) in reliance on the authorisation during the levy year.”(5) In subsection (3), for “in its area” substitute “in relation to the late night levy requirement”.4 (1) Section 128 (amount of late night levy) is amended as follows.(2) In subsection (1) after “For” insert “any levy requirement and”.(3) In subsection (2), for “a relevant late night authorisation” substitute “a late night authorisation to which a late night levy requirement relates”.(4) In subsection (3)—(a) after “in relation to” insert “a late night levy requirement and”;(b) for “in its area” substitute “in relation to the late night levy requirement”.(5) In subsection (4)—(a) for “the late night levy” substitute “a late night levy”;(b) after “the same” insert “, in respect of all late night levy requirements”; (c) for “the levy” substitute “a levy”;(d) omit “for the levy year”. 5 (1) Section 129 (payment and administration of the levy) is amended as follows.(2) In subsection (1), in the closing words, for “the late night levy” substitute “a late night levy”.(3) In subsection (2)—(a) for “the levy” substitute “a levy”;(b) for “relevant late night authorisations” substitute “a late night authorisation to which a late night levy requirement relates”.(4) In subsection (4)—(a) in paragraph (a), for “a relevant late night authorisation” substitute “a late night authorisation to which a late night levy requirement relates”;(b) in paragraph (b), for “a relevant late night authorisation” substitute “a late night authorisation to which a late night levy requirement relates”;(c) in paragraph (c), for “the relevant late night authorisation” substitute “a relevant late night alcohol authorisation to which a late night levy requirement relates”;(d) in the closing words, for “the levy year” substitute “the levy year in question”.(5) In subsection (5), for “the late night levy” substitute “a late night levy”.(6) In subsection (6), in the closing words, for “the late night levy” (in both places where it occurs) substitute “a late night levy”.6 (1) Section 130 (net amount of levy payments) is amended as follows.(2) In subsection (1), after “In this Chapter” insert “, in relation to a late night levy requirement,”.(3) In subsection (3), for “the late night levy requirement” substitute “a late night levy requirement”.(4) In subsection (5), in the opening words, at the beginning insert “In relation to a late night levy requirement,”.7 (1) Section 131 (application of net amount of levy payments) is amended as follows.(2) In subsection (1), at the beginning insert “In relation to a late night levy requirement,”.(3) After subsection (4) insert—“(4A) The licensing authority must publish information as to how it applies the remainder of the net amount mentioned in subsection (2)(b).(4B) The information must be published at least once in each calendar year during which any part of the remainder is applied.(4C) It is for the licensing authority to determine the manner in which the information is published.”(4) In subsection (6)(b), for “in respect of the levy” substitute “in respect of a levy”.8 (1) Section 132 (introduction of late night levy requirement) is amended as follows.(2) In subsection (1)—(a) in the opening words, for “the late night levy requirement” substitute “a late night levy requirement”;(b) in those words, omit “in its area”;(c) in paragraph (b)—(i) in sub-paragraph (i), after “period” insert “or periods (as to which see section 126(3A))”;(ii) in sub-paragraph (ii), omit “in its area”; (iii) in sub-paragraph (iii), omit “in its area”.9 (1) Section 133 (amendment of late night levy requirement) is amended as follows. (2) In subsection (1)— (a) in the opening words, for the words from the beginning to “section 125,” substitute “Where, in consequence of a decision by a licensing authority under section 125, a late night levy requirement applies,”(b) in paragraph (a), omit “in the area”;(c) in paragraph (c), for “in the area” substitute “in relation to the late night levy requirement”.(3) After subsection (1) insert—“(1A) Where the late night levy requirement is in respect of both relevant late night alcohol authorisations and relevant late night refreshment authorisations, the power conferred by subsection (1)(b) includes—(a) where a single late night levy period applies, power to decide that two late night levy periods are to apply instead;(b) where two late night levy periods apply, power to decide that a single late night levy period is to apply instead.”(4) In subsection (4)—(a) in paragraph (b), omit “in the area of a licensing authority”;(b) in that paragraph, after “relevant decision” insert “by a licensing authority”;(c) in the closing words, omit “in its area”.10 (1) Section 134 (introduction or variation of late night levy requirement: procedure) is amended as follows.(2) In subsection (1)—(a) in paragraph (a), for “the late night levy requirement” substitute “a late night levy requirement”;(b) in that paragraph, omit “in the area of the licensing authority”;(c) in paragraph (b), for “the late night levy requirement” substitute “a late night levy requirement”;(d) in that paragraph omit “in the area of the licensing authority”.(3) In subsection (2)—(a) in paragraph (a)(iii), for “relevant late night authorisations” substitute “late night authorisations to which the levy requirement in question relates or would relate”;(b) in paragraph (c)(i), for “so as to cease to be a relevant late night authorisation before the beginning of the first levy year” substitute “so that it is not a late night authorisation to which the levy requirement relates at the beginning of the first levy year”.(4) In subsection (3)—(a) for “the late night levy requirement” substitute “a late night levy requirement”;(b) omit “to the area of a licensing authority”.(5) In subsection (4)—(a) for “the late night levy requirement” substitute “a late night levy requirement”;(b) omit “in its area”.(6) Omit subsection (5).11 (1) Section 135 (permitted exemption and reduction categories) is amended as follows.(2) In subsection (1)— (a) in paragraph (a), for “relevant late night authorisations” substitute “relevant late night alcohol authorisations or relevant late night refreshment authorisations”;(b) in that paragraph, for “the requirement to pay the late night levy is not to apply” substitute “no requirement to pay a late night levy is to apply”; (c) in paragraph (b), for “relevant late night authorisations” substitute “relevant late night alcohol authorisations or relevant late night refreshment authorisations”;(d) in that paragraph, for “the levy” substitute “a levy”.(3) In subsection (2), omit “in its area”.(4) In subsection (4)—(a) in paragraph (a), for “the levy” substitute “a levy”;(b) in paragraph (b), for “the levy” substitute “a levy”;(c) in the closing words—(i) for “the late night levy” substitute “a late night levy”;(ii) after “the same” insert “, in respect of all late night levy requirements,”;(iii) for “relevant late night authorisations” substitute “relevant late night alcohol authorisations or relevant late night refreshment authorisations”;(iv) omit “for a levy year”.12 After section 136 insert—“136A Late night levy: requests by relevant local policing bodies(1) The relevant local policing body in relation to a licensing authority may request the licensing authority to make a proposal for a decision under section 125(2) that a late night levy requirement of a kind described in the request is to apply.(2) In deciding whether to make a request, the relevant local policing body must consider the matters mentioned in section 125(3).(3) A request must be accompanied by any evidence the relevant local policing body has in support of its request.(4) In deciding how to respond to the request, the licensing authority must consider the matters mentioned in section 125(3).(5) The licensing authority must publish—(a) the request, including the evidence accompanying it, and(b) its response to the request.(6) The response must include reasons, including an explanation of the outcome of the authority’s consideration of the matters mentioned in section 125(3).(7) It is for the licensing authority to determine the manner in which it publishes the request and its response under subsection (4).”13 (1) Section 137 (interpretation) is amended as follows.(2) For ““the late night levy requirement” substitute ““a late night levy requirement”.(3) At the appropriate place insert—““late night refreshment” has the same meaning as in the Licensing Act 2003 (see Schedule 2 to that Act);”.(4) In the definition of ““levy year”—(a) for “the late night levy requirement” substitute “a late night levy requirement”;(b) omit “in the area of the authority”.(5) In the definition of ““payment year”, for “a relevant late night authorisation” substitute “a late night authorisation to which a late night levy requirement relates”.”
Baroness Hamwee
Baroness Hamwee
My Lords, Clause 140 provides for a requirement to produce a nationality document in the case where,
“an individual has been arrested on suspicion of the commission of an offence”,
and,
“an immigration officer or constable”,
gives,
“the individual a notice requiring the production of a nationality document”.
This amendment comes from the Joint Committee on Human Rights, of which I am a member. The committee regarded Article 14—the anti-discrimination article—as being engaged. The organisation Liberty has argued that if these powers,
“are to operate in a similar fashion to powers in the Immigration Bill”,
which a number of us will recall,
“immigration checks would become a routine aspect of every police engagement with a suspect. It is difficult to think how suspicion”,
which is required,
“will be generated if this is not the intended model, short of the police making assumptions about an individual’s status on the basis of appearance or accent”.
The committee noted the risk in this provision that requirements to confirm nationality could have a differential impact on BAME UK citizens. As our report says:
“We also questioned whether a person asked to produce a passport or other nationality document should instead be entitled to supply documentation sufficient to demonstrate an entitlement to such a document”,
since not everyone has a passport. We contacted the then Minister for the subject, who told the committee in the summer:
“Before deciding to issue a notice requiring a nationality document to be produced, as a matter of operational best practice, officers should check whether or not there is an immigration interest with Home Office Immigration Enforcement. If, having undertaken these checks, it is confirmed that the individual is not a UK national (or it is suspected the person may not be), it is a proportionate response to require the production of a document in order to properly establish identity. Should a UK national not possess a passport but are able to produce evidence (documentary or otherwise) that they are entitled to one under the terms of published guidance, it is reasonable that officers should take that into account. We”—
the Government—
“do not consider it necessary that such eventualities are set out on the face of the Bill, but will instead issue guidance to officers in that regard”.
The Joint Committee made the following point:
“If the Government accepts that alternative documentation may be required in circumstances where an individual does not possess a passport or driving licence, it is not clear why this fact should not be stated on the face of the Bill”.
This is a safeguard, after all, and something more than operational guidance would be appropriate. I beg to move.
Baroness Chisholm of Owlpen
My Lords, I am grateful to the noble Baroness and the other members of the Joint Committee on Human Rights for their consideration of the Bill. It is accepted that there may be situations where a UK national does not possess a passport and should be able to produce other documentary evidence to satisfy an officer that they are entitled to one under the terms of published government guidance.
The Government’s view is that this matter can properly be addressed through guidance, but in the light of the Joint Committee’s recommendation, I am content to take this amendment away and consider it further in advance of Report. I trust that, on that basis, the noble Baroness would be content to withdraw her amendment.
Baroness Hamwee
My Lords, four minutes has achieved more than I might have expected. I realise that perhaps, in reading the content of the report fairly quickly, I might not have sufficiently stressed the risks of discrimination with which we were particularly concerned. Having said that, I beg leave to withdraw the amendment.
Lord Sharkey
“Posthumous pardons for convictions etc of certain abolished offences
(1) A person who has been convicted of, or cautioned for, an offence specified in subsection (3) and who has died before this section comes into force is pardoned for the offence if two conditions are met.(2) Those conditions are that—(a) the other person involved in the conduct constituting the offence consented to it and was aged 16 or over, and (b) any such conduct at the time this section comes into force would not be an offence under section 71 of the Sexual Offences Act 2003 (sexual activity in a public lavatory).(3) The offences to which subsection (1) applies are—(a) an offence under section 12 of the Sexual Offences Act 1956 (buggery) or under section 13 of that Act (gross indecency between men);(b) an offence under any of the following provisions (which made provision similar to section 12 of the Sexual Offences Act 1956)—(i) 25 Hen. 8 c. 6 (1533) (an Act for the punishment of the vice of buggery);(ii) 2 & 3 Edw. 6 c. 29 (1548) (an Act against sodomy);(iii) 5 Eliz. 1 c. 17 (1562) (an Act for the punishment of the vice of buggery);(iv) section 15 of 9 Geo. 4 c. 31 (1828) (an Act for consolidating and amending the law relating to offences against the person); (v) section 61 of the Offences against the Person Act 1861;(c) an offence under section 11 of the Criminal Law Amendment Act 1885 (which made provision similar to section 13 of the Sexual Offences Act 1956).(4) The references in subsection (3) to offences under particular provisions are to be read as including offences under—(a) section 45 of the Naval Discipline Act 1866,(b) section 41 of the Army Act 1881,(c) section 41 of the Air Force Act 1917,(d) section 70 of the Army Act 1955,(e) section 70 of the Air Force Act 1955, or(f) section 42 of the Naval Discipline Act 1957,which are such offences by virtue of the provisions mentioned in subsection (3).(5) The reference in subsection (2)(b) to an offence under section 71 of the Sexual Offences Act 2003 is to be read as including a reference to an offence under section 42 of the Armed Forces Act 2006 which is such an offence by virtue of section 71 of that Act of 2003.(6) The following provisions of section 101 of the Protection of Freedoms Act 2012 apply for the purposes of this section and section (Sections (Posthumous pardons for convictions etc of certain abolished offences) and (Other pardons for convictions etc of certain abolished offences): supplementary))(1) (so far as relating to this section) as they apply for the purposes of Chapter 4 of Part 5 of that Act—(a) in subsection (1), the definitions of “caution”, “conviction”, and “sentence” (and the related definition of “service disciplinary proceedings”);(b) subsections (2) and (5) to (7).”
Lord Sharkey (LD)
My Lords, I shall also speak to Amendment 214F. Both amendments are in my name and those of the noble Baroness, Lady Williams of Trafford, and the noble Lords, Lord Lexden and Lord Black of Brentwood. These amendments each do one simple thing. Amendment 214E grants posthumous pardons to those men, now deceased, who were convicted under the dreadful Labouchere amendment and other homophobic legislation, for acts that would now not be crimes. Amendment 214F provides that a pardon is granted to those living who were similarly convicted and who have, or will have, obtained a disregard under the Protection of Freedoms Act. I am very glad to say that the Government have said they will support these amendments and I thank the Minister for her help and encouragement.
If these amendments pass, it will be the culmination of a long campaign to put right a historic injustice. Some 65,000 men were convicted under the Labouchere amendment and other anti-gay statutes. Of these, 16,000 are still alive and 49,000 are dead. When we passed the Protection of Freedoms Act in 2012 we made provisions for the living 16,000 to have their convictions disregarded. That is, for all practical purposes, the convictions would no longer have any effect. That was a great step forward. We recognised a terrible injustice and did something to make amends and to put things right. At the time it seemed to me that the 49,000 men convicted but now dead deserved exactly the same treatment. It seemed a straightforward argument. The disregard for the living acknowledged a wrong and offered a partial remedy. Simple justice suggested that we do the same for the dead. We should acknowledge the wrong done to them and should provide some comfort to their relatives, their friends and their memory.
I tried, with other noble Lords, notably the noble Lords, Lord Black of Brentwood, Lord Lexden and Lord Faulkner of Worcester, to amend the Protection of Freedoms Act to do exactly that—to extend the disregard posthumously. I tried via the LASPO Bill in March 2012 and via the Criminal Justice and Courts Bill once in July 2014 and again that October. During this process the Government’s position began to shift. The initial and rather blunt refusal to take action became a willingness to discuss and, eventually, a willingness to help. I was encouraged to persevere and to promote a posthumous pardon for Alan Turing. There was a feeling that, if Turing were pardoned, it would be morally impossible not to extend that pardon to all those others similarly convicted but now dead. So it would prove, if these amendments now pass. If they do, we will finally be putting right a cruel and unjust historic wrong—a wrong that has wrecked the lives of thousands of gay men. I urge your Lordships to support these amendments and I beg to move.
Baroness Williams of Trafford
I intervene on the noble Lord to say that not only do the Government support this amendment, we strongly support it. I thought that might be helpful to the debate in Committee.
Lord Lexden (Con)
My Lords, it is a pleasure and, indeed, an honour to support the amendments tabled by my noble friend Lord Sharkey. They represent the culmination of work done over several years by my noble friend to secure as much redress as is practicable for victims of grave injustice, including those who are no longer alive—gay men who suffered great wrong simply for giving expression to the love that for far too long dared not speak its name but has thankfully found its full and authentic voice in our times. My noble friend kept the issue before successive Ministers and their officials. It is in part due to the polite but enduring pressure that he applied that commitment to action was included in the Conservative Party manifesto at the last general election. As my noble friend Lady Williams of Trafford has already made clear, these amendments will be accepted by the Government. It is a day of great importance for gay people, a view shared by my noble friend Lord Black of Brentwood, who has also put his name to these amendments but has had to leave the Chamber.
I turn to Amendments 214H to 214L, 235A and 239C in my name. My amendments have two aims. The first is to extend the pardons for iniquitous former offences, now abolished, that will be available to living and deceased persons in England and Wales to their counterparts in Northern Ireland. The second aim is to extend the disregard scheme now in operation in England and Wales to Northern Ireland, where at present it does not exist. The first of the amendments relating to pardons, Amendment 214H, includes provision for legislation that is specific to Northern Ireland. Through this amendment and the two that follow, pardons could be granted in the same manner as in England and Wales.
Because there is no disregard scheme, the foundation on which pardons will rest in Northern Ireland, Amendment 214L, is vital. It will insert a new clause in the Bill that would make a number of amendments to the Protection of Freedoms Act 2012, changing the scope of Chapter 4 of Part 5. As a result, application could be made to the Secretary of State for Northern Ireland to have a conviction or caution in respect of an abolished offence in Northern Ireland disregarded. Since justice and policing are now transferred matters in Northern Ireland, the responsibility for designing and implementing a disregard scheme would in practice be expected to rest with the Northern Ireland Executive. Exactly how the system would work may need further consideration; it must clearly be fully acceptable in all its details to the Executive.
The impetus for the extension to Northern Ireland of the arrangements proposed in England and Wales has come from Northern Ireland itself. I am merely the spokesman and agent of courageous campaigners for full gay rights in the Province who are working to achieve complete equality with the rest of the UK. No one has done more to create support for the amendments I have put forward than Councillor Jeffrey Dudgeon MBE, who in 1981 paved the way for the decriminalisation of homosexuality in Northern Ireland through a successful case at the European Court of Human Rights.
The five main parties in the Northern Ireland Assembly have all pledged support for the principles embodied in the amendments. I am in the fortunate position of being able to tell your Lordships’ House that yesterday the Minister of Justice in Northern Ireland, Claire Sugden, announced that a legislative consent Motion would shortly be introduced in the Assembly enabling these amendments, after any revision that may be needed, to become law in Northern Ireland.
Lord Cashman (Lab)
My Lords, I support the amendments from the noble Lord, Lord Lexden, extending the provisions to Northern Ireland, and I shall speak to the amendments in my name. I congratulate the noble Lord on the success he has had with these amendments in relation to the announcement from the Justice Minister Claire Sugden. The noble Lord’s record on seeking to achieve equal rights in Northern Ireland, not least on equal access to marriage, is unblemished and should be celebrated because at its very heart is the concept that we should have equality and access to equal rights across the United Kingdom, not based on where we live.
I will quote from two organisations in Northern Ireland. A Northern Ireland-based LGBT organisation replied to the announcement that the measure would go before the Northern Ireland Assembly by saying:
“This is the first time that the Northern Ireland Assembly has made positive moves in respect of LGB&T legislation and we are hopeful that with cross-party support the pardons will be applicable to convictions made against … men living in Northern Ireland”.
I also join the noble Lord in celebrating the work and success of LGBT people and their allies and NGOs in Northern Ireland. Quite rightly, this is their success; and not the least of them is Councillor Jeff Dudgeon MBE, who has been a pioneer, affecting so positively the lives of so many across the United Kingdom and beyond.
Before I speak specifically to my two amendments—214S and 214R—I need to pay tribute to the noble Lord, Lord Sharkey, for his exemplary work over the years in pressing the case for equality, even when some have not wanted to listen to the arguments, noble and right though they are. My only difference with him on my amendments are on two major elements. My Amendment 214S differs from the amendment of the noble Lord, Lord Sharkey, and others in two key respects. First, it would grant a pardon to any person convicted of or cautioned for a now abolished offence, providing that they meet certain conditions, regardless of whether they are living or dead.
I disagree with the need to create two different systems for pardoning people in respect of these offences—one for the living and one for the dead. I cannot honestly see the logic of saying to a living person, “You must apply to have your conviction or caution disregarded to be eligible for a pardon,” while at the same time saying, “If you have died, you will get a pardon automatically”. That is not logical, and I am afraid that it appears to confuse the purpose of a pardon and the purpose of the disregard scheme. My amendment makes it abundantly clear that any person, subject to the specified conditions, who suffered a conviction or caution under these offences is pardoned. For those living with an historic conviction or caution, the disregard scheme is available to address any negative consequences caused by a police or other record.
The second way in which my amendment differs from that of the noble Lord, Lord Sharkey, and others, is that it would extend pardons to those convicted or cautioned under Section 32 of the Sexual Offences Act 1956 and its corresponding earlier provisions in the Vagrancy Act 1898. Let me be absolutely clear: this would not grant a pardon to any person convicted or cautioned for soliciting. My amendment makes it clear that anyone convicted or cautioned for any conduct that would now constitute the offence of soliciting under the Sexual Offences Act 2003 would not be pardoned; nor would a pardon extend to a person whose conviction or caution was the result of conduct involving any other person under 16. What my amendment would do is grant pardons for all those persons who were convicted or cautioned for what was once called “importuning for immoral purposes”. The immoral purposes, in many cases, amounted to nothing more, as the Home Office report Setting the Boundaries recognised in 2000, than one man chatting up another man. That report recommended the repeal of the offence, and that was carried through.
On a personal note, I lived through that campaign of hate and fear. I was a 16 year-old gay man when the age of consent was set at 21 and homosexual acts in private were decriminalised. I still had no protection as a young gay man who wanted to exercise his attraction and his love for others. I, too, suffered the threat of coming out of a bar or a pub in places such as Earl’s Court, where a lot of homosexual and bisexual men gathered. We felt safe together, but coming out of such a pub or a club and looking at another man and smiling at him could have possibly got me arrested for soliciting for an immoral purpose.
Earl Attlee
My Lords, I rise briefly to support the general thrust of these amendments because the underlying legislation and the policy behind it was so fatally flawed. I am just sad that it took me and many others so long to realise that the whole policy was 100% flawed and caused unnecessary problems.
Lord Kennedy of Southwark
My Lords, this has been an important debate and I am pleased to be able to respond on behalf of the Opposition.
I can support all the amendments in this group as far as they go, although some go further than others. I was particularly pleased to see the amendments of the noble Lord, Lord Lexden, which extend posthumous pardons to Northern Ireland. However, further rights need to be won for LGBT people and women in Northern Ireland, as well as on the mainland. We must return to them at a later date.
I join my noble friend Lord Cashman in paying tribute to the noble Lords, Lord Lexden and Lord Sharkey, for their tireless campaigning. I also pay tribute to my noble friend Lord Cashman for his tireless campaigning to deliver equality for LGBT people. There has been tremendous progress in the past 20 years in particular, and my noble friend has been there, standing up, making the case and challenging prejudice, hate and injustice. We are all grateful to him. The most comprehensive amendments in the group are those in the name of my noble friend and they have my full support. I very much agree with him that granting a pardon to any person convicted of or cautioned for a now-abolished offence, providing they meet certain conditions, and regardless of whether they are living or dead, is the way to proceed. His amendments go further in that they extend pardons to those convicted or cautioned under Section 32 of the Sexual Offences Act 1956 or the Vagrancy Act.
My noble friend made it clear that nothing in his amendments would grant a pardon to any person convicted or cautioned for soliciting. Nor would the amendments grant a pardon to anyone convicted or cautioned in respect of conduct involving a person under the age of 16. My noble friend gave an important illustration of the effect of Section 32 of the Sexual Offences Act 1956, and I agree that it is important to right this wrong for both those who are living and those who are dead. Treat them equally. This is the right thing to do. No one would be pardoned for anything that is still an offence. I hope your Lordships’ House will accept my noble friend’s amendments.
Baroness Williams of Trafford
My Lords, I am pleased to be able, on behalf of the Government, to warmly welcome Amendments 214E, 214F, 214G, 239A and 246, and I congratulate the noble Lord, Lord Sharkey, on bringing them forward, as well as the noble Lord, Lord Cashman, who spoke so movingly.
As the noble Lord, Lord Sharkey, explained, these amendments broadly do two things. First, they confer an automatic pardon on deceased individuals convicted of certain consensual gay sexual offences that would not be offences today. Secondly, they confer a pardon on those persons still living who have a conviction for such an offence that has been disregarded under the terms of the Protection of Freedoms Act 2012. It is important to note that for the pardon to apply, the conduct in question must have been consensual and involved another person aged 16 or over, which is the current age of consent. The conduct must also not involve an offence of sexual activity in a public lavatory, which is still illegal today.
This historic step is momentous in righting wrongs suffered by thousands of gay and bisexual men. It is a tragedy that people were criminalised over a shamefully long time for something that society regards today as normal sexual activity. It is time to right the wrongs of the past and I am pleased to support the noble Lord, Lord Sharkey, in putting forward these amendments.
It is important that we link the pardons for the living to the disregard process so that the necessary checks can be carried out to identify whether the individual in question engaged in activity that constitutes an offence today. Since the disregard scheme under the Protection of Freedoms Act came into force, eight disregard applications that concerned non-consensual activity have been rejected. It is therefore crucial that a pardon for the living should only follow a successful disregard application. This mitigates the risk of individuals claiming to be cleared of offences that are still crimes today. It takes into account and protects the rights of victims and ensures that children and vulnerable people are safeguarded from potential risks. This is extremely important and an objective with which I am sure noble Lords would agree. It is for these reasons that the Government cannot commend to the Committee Amendment 214S in the name of the noble Lord, Lord Cashman.
The amendments in the name of my noble friend Lord Lexden seek to make corresponding provision for Northern Ireland. The Committee will be aware of the established convention that the UK Parliament legislates on devolved matters in Northern Ireland only with the consent of the Northern Ireland Assembly. Subject to observing that convention, the Government are ready to look favourably at amendments at a later stage of the Bill along the lines proposed by my noble friend.
I understand that on Monday of this week, the Ministry of Justice tabled an amendment to a legislative consent Motion before the Northern Ireland Assembly seeking its consent to the UK Parliament legislating on this matter. If the proposed legislative consent Motion can make sufficient progress over the next two to three weeks, I would anticipate that the Government will be able to work with my noble friend to come to an agreement before the Bill leaves this House. I should add that the Scottish Government have separately announced their intention to bring forward legislation in the Scottish Parliament.
I turn to Amendment 214R, which is again in the name of the noble Lord, Lord Cashman. The amendment seeks to extend the disregard scheme to include convictions for the soliciting offence in the now-repealed Section 32 of the Sexual Offences Act 1956. Under the current disregard scheme, for the now-repealed offences of buggery and gross indecency between men, it is a relatively straightforward matter to establish whether the relevant statutory conditions are met; namely that the other person involved in the conduct consented and was aged 16 or over, and the conduct would not now constitute the offence of sexual activity in a public lavatory. In contrast, the soliciting offence in Section 32 of the 1956 Act covered a broad range of behaviours and, as such, it is not a straightforward matter to formulate additional conditions to ensure that behaviour which would still constitute an offence today cannot be the subject of a disregard. It is likely that any such conditions would entail more than simply establishing facts—for example, whether the other person was aged 16 or over—and require a shift to making judgments as to whether an activity would be captured by a range of different offences today. This creates some practical challenges in accessing records in sufficient detail to make that judgment.
Lord Cashman
I have listened with great interest and have two points to make. First, a pardon does not remove a conviction from a record. The criminal activity remains on the record, so any employer making a heightened check can find what the conviction was for. I see no way in which, if we issued a pardon, it would put anyone at risk. Secondly, if there is a victim in any of these cases, and if we have managed to weed it out in the discharge process in relation to gross indecency and buggery, we should have the wit and wherewithal to approach this and find out how to apply exactly the same provisions and the same terms to the immoral purposes Section 32. Will the Minister commit at least to sitting down with me and the likes of Paul Johnson, from the University of York, and Stonewall, who have had great input into this, so that instead of protracting discussion of the problem, we can seek the solution?
Baroness Williams of Trafford
The noble Lord reminds me of a conversation that we had the other day. I quite happily undertake to meet him, Paul Johnson and other members of Stonewall to discuss this further. I was going on to say that, despite the challenges, I am ready to consider Amendment 214R further ahead of Report.
I conclude by congratulating the noble Lord, Lord Sharkey, but I also signal my happiness at finishing the work started by the coalition Government in recommending a pardon for Alan Turing. As a Mancunian, the situation he faced, and the fact that he ultimately took his own life, has saddened me for many years. Legislating in this Bill will speed up the delivery of a similar pardon for the thousands of gay and bisexual men convicted of now-abolished sexual offences. I look forward to the day—perhaps in a little over a month’s time—when this Bill is enacted and these provisions come into force. That will be a day we will all be able to celebrate. I commend the noble Lords’ amendments to the House.
Lord Sharkey
My Lords, I thank all those noble Lords who have spoken in favour of Amendments 214E and 214F, and all noble Lords who have spoken in this brief debate. I also want to claim some fellowship as a Mancunian with the Minister. Wigan is only 17 miles from Manchester, and while I was at the University of Manchester as a mathematics undergraduate, I was taught by a man called Robin Gandy who was the only doctoral student that Alan Turing ever had. Robin Gandy was full of stories about Alan Turing and I knew these from a very early age.
In closing, I thank the noble Lords, Lord Lexden, Lord Black of Brentwood and Lord Faulkner of Worcester, who have been supporters of these amendments in their current form and in all their previous forms. It is also appropriate to thank my noble friend Lord McNally and the noble Lords, Lord Bates, Lord Faulks, and their officials for listening to the case we have made and for helping to arrive at a solution.
“Other pardons for convictions etc of certain abolished offences
(1) This section applies to a person who has been convicted of, or cautioned for, an offence mentioned in section 92(1) of the Protection of Freedoms Act 2012 and who is living at the time this section comes into force.(2) If, at the time this section comes into force, the person’s conviction or caution has become a disregarded conviction or caution under Chapter 4 of Part 5 of the Protection of Freedoms Act 2012, the person is pardoned for the offence.(3) If, at any time after this section comes into force, the person’s conviction or caution becomes a disregarded conviction or caution under Chapter 4 of Part 5 of the Protection of Freedoms Act 2012, the person is also pardoned for the offence at that time.(4) Expressions used in this section or section (Sections (Posthumous pardons for convictions etc of certain abolished offences) and (Other pardons for convictions etc of certain abolished offences): supplementary))(1) (so far as relating to this section) and in Chapter 4 of Part 5 of the Protection of Freedoms Act 2012 have the same meaning in this section or (as the case may be) section (Sections (Posthumous pardons for convictions etc of certain abolished offences) and (Other pardons for convictions etc of certain abolished offences): supplementary))(1) as in that Chapter (see section 101 of that Act).”
“Sections (Posthumous pardons for convictions etc of certain abolished offences) and (Other pardons for convictions etc of certain abolished offences): supplementary
(1) A pardon under section (Posthumous pardons for convictions etc of certain abolished offences) or (Other pardons for convictions etc of certain abolished offences) does not—(a) affect any conviction, caution or sentence, or(b) give rise to any right, entitlement or liability.(2) Nothing in this section or in section (Posthumous pardons for convictions etc of certain abolished offences) or (Other pardons for convictions etc of certain abolished offences) affects the prerogative of mercy.”
Lord Lexden
“Posthumous pardons for convictions etc of certain abolished offences: Northern Ireland
(1) A person who has been convicted of, or cautioned for, an offence specified in subsection (3) and who has died before this section comes into force is pardoned for the offence if two conditions are met.(2) Those conditions are that—(a) the other person involved in the conduct constituting the offence consented to it and was aged 16 or over, and(b) any such conduct at the time this section comes into force would not be an offence under section 75 of the Sexual Offences (Northern Ireland) Order 2008 (sexual activity in a public lavatory).(3) The offences to which subsection (1) applies are—(a) an offence under section 11 of the Criminal Law Amendment Act 1885 (gross indecency between men),(b) an offence under section 61 of the Offences against the Person Act 1861 (buggery),(c) an offence under either of the following provisions (which made provision similar to section 61 of the Offences against the Person Act 1861—(i) 10 Cha.1 Sess.2 c.20 (1634) (An Act for the punishment of the vice of Buggery);(ii) section 18 of 10 Geo. 4 c.34 (1829) (An Act for consolidating and amending the Statutes in Ireland relating to Offences against the Person), or(d) an offence under Article 19 of the Criminal Justice (Northern Ireland) Order 2003 (buggery).(4) The references in subsection (3) to offences under particular provisions are to be read as including offences under—(a) section 45 of the Naval Discipline Act 1866,(b) section 41 of the Army Act 1881,(c) section 41 of the Air Force Act 1917,(d) section 70 of the Army Act 1955,(e) section 70 of the Air Force Act 1955, or(f) section 42 of the Naval Discipline Act 1957,which are such offences by virtue of the provisions mentioned in subsection (3).(5) The reference in subsection (2)(b) to an offence under section 75 of the Sexual Offences (Northern Ireland) Order 2008 is to be read as including a reference to an offence under section 42 of the Armed Forces Act 2006 which is such an offence by virtue of section 71 of the Sexual Offences Act 2003 (corresponding offence of “sexual activity in a public lavatory” in England and Wales).(6) The following provisions of section 101 of the Protection of Freedoms Act 2012 apply for the purposes of this section and section (Sections (Posthumous pardons for convictions etc of certain abolished offences: Northern Ireland)and (Other pardons for convictions etc of certain abolished offences: Northern Ireland): supplementary)(1) (so far as relating to this section) as they apply for the purposes of Chapter 4 of Part 5 of that Act—(a) in subsection (1), the definitions of “caution”, “conviction”, and “sentence” (and the related definition of “service disciplinary proceedings”);(b) subsections (2) and (5) to (7).”
Lord Lexden
My Lords, I am grateful for the support that has been expressed by—for this purpose—my noble friend Lord Cashman and my noble friend the Minister. I shall not press the amendments, with a view to returning to the matter on Report.
Lord Paddick
“Vagrancy Act 1824
In section 8 of the Criminal Attempts Act 1981 (abolition of offence of loitering etc with intent) at end insert—“(2) A person who has been convicted of, or cautioned for, an offence under those provisions is pardoned for the offence.(3) For the purposes of subsection (2) it is irrelevant whether the person has died before subsection (2) comes into force.(4) A pardon under this section does not give rise to any right, entitlement or liability.””
Lord Paddick
My Lords, with the leave of the House, I cannot let the opportunity go past without congratulating my noble friend Lord Sharkey on what is a phenomenal achievement. I am very grateful to the Government for the support that they have finally given to his amendment.
I turn to another contentious issue. Amendment 214Q stands in my name and that of my noble friend Lady Hamwee. As we have just discussed, with government support my noble friend Lord Sharkey has moved amendments—and we have just passed those amendments—to grant pardons to those convicted of offences that only gay men could commit and that are no longer on the statute book because they were considered discriminatory. These offences are symbolic to the gay community and it is striving to ensure equality in law and in society as a whole.
There is another offence that is symbolic to another minority, which is no longer an offence on the statute book and is considered by many to be another example of what amounts to an historic injustice. Parliament repealed the offence because it was accepted that it was being used in a discriminatory manner by the police; it is the offence of being a suspected person loitering with the intent to commit what was originally an indictable, and later, an arrestable offence. Although the term “sus” has recently been more widely used to describe the use of police “stop and search” powers, it was originally confined to the criminal offence of being a suspected person under Section 4 of the Vagrancy Act 1824. The offence required the evidence of two witnesses, usually two police officers patrolling together. The usual evidence was of a suspected person being seen to try three car door handles, in an attempt to steal the car or from it, or the suspect putting his shoulder to the doors of three homes, with the intention of committing burglary.
The difficulty with the offence was the absence in almost every case of any corroboration, either from witnesses other than police officers, or any physical or forensic evidence. Both the police officers and, usually, young black men, who were almost exclusively the target under sus, knew that it was the word of two police officers against a young black man with no other witnesses or evidence or any other corroboration. This allowed unscrupulous police officers to invent evidence against those who had, at least on that occasion, done nothing wrong.
Of course, some will say that a miscarriage of justice did not occur on every occasion of someone being convicted of being a suspected person and, of course, I cannot say that that was the case. However, I can say—I hope that Members of this House agree with this—that thousands of innocent young black men were convicted, which caused huge pain and distress, destroying the trust and confidence between the community and the police.
I was a police officer—a bobby on the beat, a patrol officer—at the height of the use of that aspect of Section 4 of the Vagrancy Act. In 1975 and 1976, the year I joined the Metropolitan Police, more than 40% of those arrested for sus were black people, when at the time black people accounted for only 2% of the population. It was because by the end of the 1970s you were 15 times more likely to be arrested for sus if you were black than if you were white, far more than the disproportionality in stop and search, that in 1980 the Home Affairs Select Committee recommended the repeal of the legislation. It also threatened to introduce a Private Member’s Bill if the Government did not take action, but the Government did.
There was a great deal of concern, even among police officers at the time—me included—over the use of the offence, in that we knew about the claims of the black community that it was used as a tool to oppress black people. If there was evidence of another offence—for example, attempted theft of or from a motor vehicle or attempted burglary—not only were these offences less likely to be open to question but the penalties were more severe. In other words, if there had been substantive evidence, physical or forensic evidence, which in those days would have been simply fingerprints, then the much safer, more acceptable and far less contentious route was to arrest and charge for the substantive offence rather than sus.
My second comment is anecdotal. I was at Highbury Corner Magistrates’ Court with someone I had arrested. The stipendiary magistrate, Toby Springer, would want to hear from the arresting officer in every case except for those of being drunk and incapable. The case just before me was an arrest made by a colleague for whom I had respect for his honesty and professionalism. He had arrested someone for sus, and the young black man who had been arrested pleaded guilty to the offence and was fined. Downstairs in the cells, where the young man had to pay his fine before being released, I spoke to my colleague, and I remember this very distinctly. I said to him that he had restored my faith in sus because here was a trusted colleague with someone who had pleaded guilty in court to the offence, so the criticisms made by the black community, at least in some cases of sus, were clearly unjustified. He told me what had happened. He and a colleague had turned a street corner and the person he had arrested looked at the police officers and ran away. The officers ran after the youth and caught him. The youth was given the ultimatum, “Do you want attempted burglary or sus?”. The youth said, “Sus”. Presumably realising that the odds were stacked against him, he then went through the whole process admitting to something that he had never done.
Sus is another example of an offence that should never have been on the statute book, or at least an offence that was designed to deal with soldiers coming home from the Napoleonic wars and making a nuisance of themselves should not still have been on the statute book 150 years later. Not every part of Section 4 of the Vagrancy Act 1824 was repealed by the Criminal Attempts Act 1981, but those other offences are, and should be, a debate for another time.
Bearing in mind how long it has taken my noble friend Lord Sharkey to achieve what he has achieved for the gay community through his long campaign for justice, and in the absence of the equivalent of an Alan Turing figure regularly to hand in the case of sus, I am not expecting instant agreement from the Government. However, I ask the Minister to think carefully about what has been a symbolic offence for the black community. It has created huge pain and distress for decades. To pardon those convicted under this legislation—repealed because of its acknowledged discriminatory application and potential for misuse—would be of immeasurable importance to the black community.
Not only did sus damage relations between the black community and the police, it damaged relationships between the generations in the black community. The first generation of migrants from the Caribbean had great faith in the police and when their sons were arrested they did not believe their tales of the police acting improperly in inventing evidence against them. It drove divisions between generations as well as between police and the subsequent generations. Granting pardons to those convicted of being suspected persons loitering with intent to commit an indictable or arrestable offence would be a huge step forward in healing the pain caused and the damage done to the trust and confidence the black community as a whole had in the police. It would also be a much-needed catalyst to dramatically improve those damaged relations as we work to create safer communities for all. I beg to move.
Lord Kennedy of Southwark
I have one question for the Minister when she responds to the noble Lord, Lord Paddick. Does she have any idea of the number of people affected by this?
Baroness Williams of Trafford
My Lords, as the noble Lord, Lord Paddick, has explained, Amendment 214Q seeks to confer a pardon on persons living and deceased who were convicted under Section 4 of the Vagrancy Act 1824. The noble Lord has explained that Section 4 was used to persecute young black men and this amendment deals with a separate matter to the one that we have just debated. It is, however, also the case that Section 4 was used to prosecute some gay and bisexual men, so there is a read-across to the earlier debate.
In relation to consensual activity between men over the age of consent, Section 101 of the Protection of Freedoms Act 2012 makes it clear that the disregard scheme covers not only the offences of buggery and gross indecency but attempts to commit such an offence, and an attempt to commit such an offence includes conduct covered by Section 4 of the Vagrancy Act 1824. Someone with such a conviction may also apply for that conviction to be disregarded and, if successful, will also receive a pardon under the terms of the new clauses in the name of the noble Lord, Lord Sharkey.
As to other conduct unrelated to homosexuality, the Government do not believe that it is appropriate to introduce a pardon for those convicted of an offence just because that offence has now been repealed and the behaviour in question is no longer regarded as criminal. Pardoning is exceptional by nature. The persecution of gay and bisexual men through the criminal law was a clear historical wrong that we should undoubtedly right through a pardon. There is a special and compelling moral case to try to redress wrongs done to gay and bisexual men in the context of the Government’s commitment to equality. The amendments from the noble Lord, Lord Sharkey, would, like the pardon for Alan Turing, remove a real and particular stigma that is suffered by the living and still attaches to the recently deceased.
The circumstances the noble Lord has described are quite different and, without looking at the facts of individual cases, it is impossible to know whether the conduct in question would still be an offence today.
In terms of the numbers, I was looking for inspiration but we have no data, I am afraid. On that note, I invite the noble Lord, Lord Paddick, to withdraw his amendment.
Lord Kennedy of Southwark
Does the Minister mean that she has no data here or no data at all?
Lord Paddick
My Lords, from the Minister’s response I do not think she has quite grasped the essence of what this amendment is about or the misuse that has been made of this legislation. The Home Affairs Select Committee put pressure on the Government to repeal that particular part of Section 4 of the Vagrancy Act. It is a very wide piece of legislation, criminalising all sorts of activity, much of which is still on the statute book. This is specifically about being a person suspected of loitering with intent to commit an indictable offence, the evidence of which I described when I moved the amendment.
I will of course look very carefully at what the Minister has said but I do not believe that it will give me sufficient grounds not to return to this matter on Report. However, at this stage, I beg leave to withdraw the amendment.
(1) After Part 4 of the Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015 (c.2 (N.I.)) insert—“Part 4APROTECTION OF VICTIMS OF FORCED MARRIAGE24A Anonymity of victims of forced marriageSchedule 3A (anonymity of victims of forces marriage) has effect.”(2) Insert, as Schedule 3A to that Act, the following Schedule—“SCHEDULE 3AANONYMITY OF VICTIMS OF FORCED MARRIAGEProhibition on the identification of victims in publications1_(1) This paragraph applies where an allegation has been made that an offence of forced marriage has been committed against a person._(2) No matter likely to lead members of the public to identify the person, as the person against whom the offence is alleged to have been committed, may be included in any publication during the person’s lifetime._(3) In any criminal proceedings before a court, the court may direct that the restriction imposed by sub-paragraph (2) is not to apply (whether at all or to the extent specified in the direction) if the court is satisfied that either of the following conditions is met._(4) The first condition is that the conduct of a person’s defence at a trial of an offence of forced marriage would be substantially prejudiced if the direction were not given._(5) The second condition is that—(a) the effect of sub-paragraph (2) is to impose a substantial and unreasonable restriction on the reporting of the proceedings, and(b) it is in the public interest to remove or relax the restriction._(6) A direction under sub-paragraph (3) does not affect the operation of sub-paragraph (2) at any time before the direction is given._(7) In this paragraph, “the court” means a magistrates’ court, a county court or the Crown Court.Penalty for breaching prohibition imposed by paragraph 1(2)2_(1) If anything is included in a publication in contravention of the prohibition imposed by paragraph 1(2), each of the persons responsible for the publication is guilty of an offence. _(2) A person guilty of an offence under this paragraph is liable, on summary conviction, to a fine not exceeding level 5 on the standard scale._(3) The persons responsible for a publication are as follows—
Type of publication | Persons responsible |
Newspaper or other periodical | Any person who is a proprietor, editor or publisher of the newspaper or periodical. |
Relevant programme | Any person who— (a) is a body corporate engaged in providing the programme service in which the programme is included, or (b) has functions in relation to the programme corresponding to those of an editor of a newspaper. |
Any other kind of publication | Any person who publishes the publication. |
Baroness Chisholm of Owlpen
My Lords, Clause 143 provides for lifelong anonymity for all alleged or proven victims of forced marriage in England and Wales, from the point of investigation onwards. At the request of the Minister of Justice in Northern Ireland, Amendments 215, 237 and 241 now extend this protection to cover victims in Northern Ireland.
We know that forced marriage can be hidden, and this measure will help to ensure that victims have the confidence to come forward so that they get the support they need and so that perpetrators are brought to justice. The protection mirrors the anonymity we introduced last year for victims of female genital mutilation. It will mean that the anonymity of victims of forced marriage can be protected from the time an allegation is made and that the publication or broadcast of any information likely to result in their being identified to the public is prohibited. Breach of the prohibition will be an offence punishable by a level 5—that is, £5,000—fine.
I will respond to Amendment 219CA once the Committee has had the opportunity to hear from my noble friend Lady Berridge. For now, I beg to move.
Baroness Berridge
My Lords, I rise to speak to Amendment 219CA. This lengthy amendment, which at the outset I accept will need recrafting on Report, seeks to deal with a simple problem that has cropped up in our law. It has done so accidentally, I think, but if not sorted out it will cause injustice. Although it is late, a short description of the law and the problem is necessary by way of background.
Successive Governments have sought to tackle forced marriage, beginning with the Forced Marriage (Civil Protection) Act 2007 and with further criminalisation in the Anti-social Behaviour, Crime and Policing Act 2014. To make these remedies effective, the law incorporated—for the first time, I believe—a definition of marriage that included marriages that were not at that time valid under UK law. I quote from the Crown Prosecution Service guidelines on the definition of “marriage”. It states that,
“‘marriage’ means any religious or civil ceremony … recognised by the customs of the parties to it, or the laws of any country in which it is carried out, as constituting a binding agreement, whether or not it would be legally binding according to the law of England and Wales”.
So a relationship that UK law does not currently define as marriage can now, for very good reason, count in our criminal courts and some of our civil courts, for forced marriage purposes, as a marriage. However, this leaves a gap.
A party to a forced marriage that is not valid under UK law cannot use that conviction as evidence of the marriage in the family courts to gain financial remedies. If you have entered into a marriage under duress—a forced marriage that is valid under UK law—that can be the subject of a crime or a civil protection order. You can then, because it is valid under UK law, go to the family courts and say, “I was forced into this marriage under duress”. It is then voidable and it can be annulled. This opens the door to financial relief and the distribution of the matrimonial property.
If under duress in our law you are forced into a religious marriage, it is valid for the purposes of our law in the criminal courts for a criminal offence under the civil protection forced marriage regime, but you are not then entitled to then take that conviction to the Family Court to obtain matrimonial remedy. This is a very different situation from the marriages valid under UK law, as I have outlined, for which you can get an annulment or, of course, a divorce. So if our law has accepted this small number of relationships as marriage for the purpose of the law on forced marriage, why can they not be used for other purposes, such as gaining financial remedy? Not allowing them to be used in this way is a real injustice to those victims of forced marriage who come forward to the Crown Courts but are left with the doors of the Family Courts shut to them in terms of matrimonial property.
I am not seeking for the law to see this small number of relationships as marriages for all purposes or to foist this on a person who, even after there is a conviction for forced marriage, wishes it to be viewed for all other purposes as the religious marriage it was but under duress. Surely, however, that person, in a forced marriage under duress that was a religious marriage, should have a choice—leave it as a religious marriage or take the conviction and be allowed to claim financial remedy under the Matrimonial Courts Act and other such remedies as he or she may on occasion need.
Many of those who have spoken to me on this issue are practising barristers and solicitors. There are many women who, some practitioners believe, do not come forward after years in a forced marriage that is valid only as a religious marriage under our law, as they know that our law leaves them without means to claim matrimonial property. They know they risk the only recourse being welfare benefits, particularly if their children are now adults and they have no claim for maintenance based on caring for the children. Their view is that many of these women would come forward to the Crown Court but are reluctant to do so because they do not want to leave themselves financially vulnerable and unable to access financial remedies. We have an anomaly created by the entry of a different definition of marriage into our law.
Surely it would be just for these people and for the taxpayer to allow someone who is the victim of a forced marriage of this nature to claim, if they wish, the matrimonial property as well. By analogy, we do not retry domestic violence convictions in our Family Courts after the Crown Courts convict a husband or wife. The conviction is accepted as evidence and used by the Family Courts. Why can a forced marriage conviction not also be used in such a simple procedural way to unlock the discretion to redistribute the property and bring justice and consistency in this regard across all our courts—civil, family and criminal?
I hope that my noble friend the Minister might have time to meet with the interested groups that are concerned about this problem in our law. I raised this matter at the time with the anti-social behaviour Bill, and it has come back because there are concerns around the gap we have left for victims of forced marriages that are religious marriages which are not fully accepted under our law. The amendment is a pre-emptive strike to try to avoid this injustice happening and potentially encourage a larger number of women to come forward because they will not risk their property rights, and they will be able to claim the matrimonial property as well as get a conviction in the Crown Court. I beg to move.
Lord Kennedy of Southwark
My Lords, as the noble Baroness, Lady Chisholm, told the Committee, this clause confers lifelong anonymity on the victims of forced marriage in England and Wales. The first amendment, in the name of the noble Baroness, Lady Williams of Trafford, extends that provision to cover Northern Ireland as well. I understand that this is at the request of the Justice Department in Northern Ireland. That is welcome, and we on these Benches support these amendments. Amendment 215 is the main amendment, while Amendments 237 and 241 are consequential and would bring the provision into effect.
Amendment 219CA is in the name of the noble Baroness, Lady Berridge. She makes a powerful case to right an injustice that leaves the victim unable to seek redress. That is not right, and the Government should come forward to correct this. I will be interested to hear what the Minister will say in her response to this amendment. She made a persuasive argument; I hope that we will get a positive response from the noble Baroness, Lady Chisholm, and that the Government can deal with it, either now or on Report.
Baroness Hamwee
My Lords, we on these Benches very much support the noble Baroness’s amendment. She has obviously been working at this for some time—I see from her face that she has—and her explanation is clear and obviously based on the experiences of which she is aware. So we give her our support.
Baroness Chisholm of Owlpen
I am grateful to my noble friend Lady Berridge for explaining the purpose of her amendment. The Government are mindful that forced religious marriage may be a deliberate attempt to avoid financial consequences in the event of the break-up of the marriage. The existing position is that the financial orders provided for in the Matrimonial Causes Act 1973 are available only where a marriage is capable of legal recognition in England and Wales and where it is being brought to an end—or where judicial separation is ordered. However, where a marriage is not capable of legal recognition, parties have the same recourse to the court as unmarried cohabiting couples on the breakdown of the relationship. This applies to the division of any property and to financial provision for any children the couple have.
For those in a marriage that has no legal validity, the pressure from families and communities to stay together is no less strong because of the fact that the marriage has no legal consequences. It does not make it any easier for an individual to escape an abusive relationship, and we share my noble friend’s concern that it leaves women in particular vulnerable to hardship when the relationship breaks up, since there is no recourse to the court for the financial orders available to divorcing couples. The Government take this issue very seriously, and it is central to the independent sharia law review launched by the current Prime Minister in May this year. The Government will wish to consider the issue further in light of the findings from the review.
None the less, the law governing marriage, divorce and matrimonial property is complex, nuanced and finely balanced, reflecting as it does the wide range of personal circumstances in which people find themselves. The amendment would introduce a disparity with unmarried cohabitants and with those who are in unregistered marriages that are not forced. There is no evidence at this stage that the amendment—
Lord Harris of Haringey
I understand the point the Minister is making about consent, difficult precedents, cohabitation and so on. But we are talking about a specific circumstance here, which is about coercion. These are not proper arrangements, because somebody has been forced into marriage against their will. That is the context we are talking about. We are not talking about a sort of touchy-feely cohabitation relationship which then breaks down, but about somebody who has been forced into an arrangement of this sort, which is totally inappropriate and wrong in law.
Baroness Chisholm of Owlpen
I was not suggesting that, just that there are difficulties—other reasons why it could be more difficult to bring in. That is not to say that we are not keen to look further at this issue. However, because we want to consider the findings of the sharia law review, I ask my noble friend to withdraw her amendment so that we have a chance to do that.
Lord Kennedy of Southwark
What is the timescale for the review that the Minister mentioned?
Baroness Chisholm of Owlpen
That is up to the review and we do not know yet.
Baroness Berridge
I am grateful for the support from noble Lords. The first point I want to make is that the disparity has been created by the law. A different definition of marriage was introduced into the civil protection order in order to deal with a real problem. My complaint is not that that should not have happened but that it created the disparity of treatment that my noble friend outlined because it was introduced without all of the consequences being thought through.
The law is about forced marriage—we did not call it “forced cohabitation”. In addition, it does not cover every arrangement that people are forced into: the CPS definition that I outlined says that you have to fall into a religious arrangement that is a binding agreement. By calling the arrangement “forced marriage” we gave those people coming to the criminal courts—at great risk—the expectation that their arrangement would, for that purpose, be treated in our law as a marriage. But we did not go on and fulfil our obligations to ensure that they were safeguarded financially and received the anonymity that they need to come forward. I am grateful that my noble friend has said that we will consider this further and I hope that there will be a meeting with interested parties.
I also want to state that I am very disappointed with this debate. I specifically did not put this into the sharia review, because it is about religious marriages. The law does not say that coercion and force come under that umbrella but suddenly we have entered that realm. This is about religious marriages, and I have come across instances of these issues in all kinds of religious settings. We need to be incredibly careful, on a day like today when British Muslims are upset by the news, about putting something that is about legal rights, technicalities and procedure under that banner. I was so careful to ensure that this could not be badged like this and I am disappointed that that is what has happened and that it has not been considered along with other issues. This is much wider than that. I beg leave to withdraw the amendment.
Policing and Crime Bill
Wednesday 16th November 2016
(9 years, 5 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 55-V Fifth marshalled list for Committee (PDF, 129KB) - (14 Nov 2016)
“Meaning of “private” and “sexual”
(1) Section 35 of the Criminal Justice and Courts Act 2015 (meaning of “private” and “sexual”) is amended as follows.(2) In subsection (3)(a) after “exposed genitals” insert “, breasts, buttocks”.(3) Omit subsection (4).(4) Omit subsection (5).”
Lord Marks of Henley-on-Thames (LD)
My Lords, with the consent of my noble friends Lord Paddick, Lady Hamwee and Lady Grender, and at their request, I rise to move and speak to Amendments 216 to 219 in this group. It was intended that my name should be added to Amendments 216 to 219A, but there has been a disconnect between intention and implementation, for which I apologise. Nevertheless, I support these amendments.
No one now disputes the need for the law to outlaw revenge porn. Disclosing private sexual photographs or films, usually acquired during a relationship, and publishing them on the internet with intent to cause distress to a former partner, is nasty and hurtful behaviour. To the victims it causes untold pain, embarrassment and humiliation. It is an appalling violation of privacy and a gross breach of trust.
Sections 33 to 35 of the Criminal Justice and Courts Act 2015 came into force in April of that year, and there were 200-plus prosecutions in the first year. To that extent, the criminalisation of revenge porn has been a success. However, responses to BBC freedom of information requests showed that out of 1,160 reported instances between April and December 2015, no action was taken in no less than 61% of cases, and many of the victims were children, some as young as 11. Many cases were not prosecuted because of insufficient evidence or because the victim did not proceed with the complaint, but of course that does not mean that the incidents did not occur. We are seeing an ever-increasing use of the internet to hurt people, often hiding behind anonymity or disguised identity. It is reasonable to assume that revenge porn will continue to be posted on the internet, despite its criminalisation.
Especially worrying is the persistent and, I suspect, increasing prevalence of the practice known as sexting, particularly among children and young people. In addition to pursuing offenders through the criminal law, we must ensure that we increase public awareness and that police forces take these offences seriously—consistently seriously across the country—and develop a social culture which treats this behaviour as beyond the pale. An NSPCC study in 2012 estimated that between 15% and 40% of young people had been involved in sexting; that much of that was under pressure, whether peer pressure or personal pressure from people with whom they were involved in a relationship; and that many images were shared with others by those who received them without the consent of their subjects. There is no evidence that with the increasing use of social media by young people, that number has decreased. Of course, there is a strong link between sexting and revenge porn.
These amendments are designed to tighten up the law. They also to a large extent bring the law into line with the equivalent legislation in Scotland, the Abusive Behaviour and Sexual Harm (Scotland) Act 2016, where the wider provisions have worked well. Proposed subsections (1) and (2) of Amendment 216 would extend the scope of the disclosure offence to bring photographs and films of breasts and buttocks within the range of sexual images and therefore within scope of the offence in the same way as such images of the victim’s exposed genitals or pubic area. That is in the Scottish legislation and it is quite clear from the evidence we have seen that such images are likely to cause distress, particularly to young girls, in the same way and to the same extent as the images presently within the scope of the Act. Of course, disclosure of such images would be an offence only if the threshold criteria were met: that the image was private, that it was disclosed without consent, and that it was disclosed with the intention of causing distress. There is no reason for the legislation to restrict the images that are not to be disclosed in the way that it currently does.
In the second part of the amendment, proposed subsections (3) and (4) would remove Sections 35(4) and (5), which are the current exception in the legislation for photographs or films that are created by altering originals or combining them with other photographs or films in such a way as to bring them within the statutory definition of “private” and “sexual”, so doctoring films and images to make them offensive. We do not accept the need or the justification for that exception. If a photograph or film as finished and published has the effect of a private and sexual image and is disclosed without the consent of the subject and with the relevant intent, I suggest that is ample reason to bring it within the section rather than to except it from it.
The first two subsections of Amendment 217 would amend Section 33 of the 2015 Act to extend the disclosure offence to bring threats to disclose private sexual photographs and films within the scope of the offence, as well as actual disclosure. There can be no reason to exclude threats to disclose from the legislation and, although it is true that the actual disclosure is what causes much of the harm, a threatened disclosure by the holder of sexual images of a victim can be used to put real and painful pressure on the victim, usually a previous partner, causing very real distress. That is why the amendment would bring threatened disclosures into scope.
Secondly, proposed subsection (3) would broaden the category of the unnecessary emotional consequences for the victim necessary to sustain a conviction so as to include “fear or alarm” as well as “distress” as an alternative form of consequence. That extension is particularly relevant in the context of threatened rather than actual disclosure.
Thirdly, the amendment by the proposed subsection (3) would also make proof of recklessness regarding the distress, fear or alarm likely to be caused sufficient to found a conviction as an alternative to proof of intention. Again, this is in the Scottish legislation. In this context, reckless disclosure means disclosure that is deliberate but that is made entirely without regard to the distress, fear or alarm that it is likely to cause to the victim. The perpetrator knows he is making the disclosure. He should not escape criminal liability just because the prosecution cannot prove that he positively intended its obvious consequences. We suggest that he should be equally criminally liable if he turns a blind eye to those consequences. It is right that intention should be supplemented by guilt in respect of disclosure that is reckless as to the likelihood of the harm it will cause. The deletion of Section 33(8) that is proposed by subsection (5) is also necessary to achieve that end.
Lastly, the proposed subsection (4) in the amendment would introduce a clear and explicit ban on promoting, soliciting or profiting from photographs or films that are themselves in breach of the Act. I apologise that, as drafted, the use of the words,
“reasonably believed to have been disclosed without consent”,
is perhaps inappropriate; I am not sure that reasonable belief is correctly used there. I suspect the proposed new clause would better read if it were expressed as, “disclosed without consent in the knowledge or belief that they had been so disclosed”, and we would redraft subsection (4) in that regard before Report.
Amendment 218 would introduce a provision for compensation for victims of offences under these provisions. It is plainly right that these revenge porn offences should give rise to a power to award compensation, but I would add to that self-evident assertion two particular points. First, this offence is unlikely to give rise to civil proceedings— victims will generally be unwilling to go through civil cases because of the embarrassment that could cause, and they will rarely have the means to do so.
Secondly, there will be many cases of revenge porn offences where the perpetrator is gainfully employed and will have the means to pay compensation ordered by the court for the hurt he has caused. We suggest that a power to award compensation, to include compensation for anxiety as well as for direct financial loss, is therefore an important part of a judge’s power to deal with an offender and publicly to recognise the harm caused by the offender directly to the victim.
Viscount Hailsham (Con)
My Lords, I have a great deal of sympathy with what the noble Lord is saying. What troubles me slightly is the quantum of the compensation and, more particularly, whether there is any appeal on it. I think these offences are triable either way. In the magistrates’ court, is there an appeal to the Crown Court on the quantum contemplated? If the case is tried on indictment, where lies appeal from the compensation ordered by the Crown Court?
Lord Marks of Henley-on-Thames
My Lords, it is quite plain that there ought to be an appeal. I have not looked at the provisions and perhaps I can clear that up before Report. It is also quite clear that the appeal from the magistrates’ court on compensation would go to the Crown Court and from the Crown Court to the Court of Appeal, where the standard for an appeal is high but one would expect the judges to get it right. The noble Lord knows well that these issues of compensation are very much in the discretion of the trial judge, taking into account both the harm caused and the ability of the offender to pay the compensation. It is a perfectly good question and I undertake to look at it before Report.
Finally, Amendment 219 would simply add these offences to the list of sexual offences in respect of which a victim is entitled to anonymity. It is right that there should be anonymity for victims of revenge porn offences because these fall squarely within the category of sexual offences that are entitled to such anonymity. I think this is relatively uncontroversial. I beg to move.
Viscount Hailsham
My Lords, I give qualified support to what has just been said by the noble Lord, Lord Marks. I have a great deal of sympathy with the underlying argument which he has advanced. There is no doubt, and it is increasingly the case, that people are using private intimate photographs and films for the purpose of blackmail or revenge. Given that we have a Bill where we can extend the existing law, I see absolutely no reason why we should not extend the substantive offence of disclosure to one of intent as well. That is a perfectly sensible amendment and I would support it if given the opportunity.
Regarding extending the definition of the “damage” from distress to the enlarged category which the noble Lord spoke of, my feeling is that the word “distress” probably encompasses what he has in mind. However, I have no objection to the extension in the sense that it does at least remove any doubt that may exist and is certainly not harmful. I suspect it is not necessary but I am not against it.
I made a point about compensation when I intervened on the noble Lord and I will not repeat it at any length. In principle, I am in favour of a compensation provision, but I worry about compensation at large without any kind of regulation of the amount: that can mean injustice. I am far from clear on whether the Crown Court has an appellate role in respect of compensation awarded at the magistrates’ court, and I would be grateful if the Minister could help the Committee on this. I am even more in doubt as to whether the Court of Appeal would have a role in considering an award made at the Crown Court. Will my noble friend give some thought to this, maybe returning at some later stage? If there is no effective appeal, I have two suggestions. One is that we should impose an arbitrary cap—a ceiling—on the amount that could be awarded. That would prevent any obvious injustice. Secondly, and differently, we should consider restricting the claim for compensation to a claim made in civil proceedings, where the procedure is more clearly established.
Amendment 219 is about anonymity. I took the opportunity to look at the substantive Act and was struck by the very large number of examples which are covered by anonymity. I can see no reason of principle, and rather a lot of advantage, in accepting the amendment put forward by the noble Lord to extend anonymity to this category of case.
Lord Pannick (CB)
My Lords, I have some comments on Amendments 216 and 217 for consideration by the Committee. On Amendment 216, I am doubtful that Section 35 of the Criminal Justice and Courts Act 2015 needs amendment to add the words “breasts” and “buttocks”. The reason for that is that Section 35(3) already defines a photograph or a film as sexual if,
“it shows something that a reasonable person would consider to be sexual because of its nature”,
or if the,
“content, taken as a whole, is such that a reasonable person would consider it to be sexual”.
The reason why I anticipate that the 2015 Act does not make a photograph of a breast or a buttock necessarily sexual is that it is very easy to think of circumstances in which such a photograph is not sexual by reason of its context. It may be a photograph of your child in a swimming pool with their breast exposed; it may be a photograph of a breast-feeding mother. It may be a beach shot of my family that shows someone in the background wearing a thong. It all depends on the context—and if the context is sexual, the Act already covers it.
Subsection (4) of the proposed new clause in Amendment 217 would create a new criminal offence of promoting, soliciting or profiting from “private photographs and films”. I have no difficulty, of course, with the idea that that should be a criminal offence. I point out that that subsection, however, does not use the word “sexual”. I assume that that is a drafting error; it talks about profiting from “private photographs and films”, but I think it should say “private sexual photographs and films”. Otherwise, it has a very different scope—which I see from the nodding on the Liberal Democrat Benches was not intended.
Lord Marks of Henley-on-Thames
The noble Lord, Lord Pannick, is plainly right on that—it needs amendment.
Lord Pannick
I am grateful. My only other point on Amendment 217 is one that I think the noble Lord, Lord Marks, accepted in his helpful opening speech. The offence in subsection (4) is committed if the defendant reasonably believes that the photographs or films were “disclosed without consent”. That would be anomalous since the primary offence—the offence committed by the person who discloses private sexual photographs or films—rightly requires the prosecution to prove that the disclosure was without the consent of the individual.
Baroness Grender (LD)
My Lords, I support the amendments in this group. I am delighted to see the noble Lord, Lord Faulks, in his place, as the Minister who announced the changes in the legislation when some of us were campaigning to get it transformed. It was a very proud moment when he announced it—quite late in the evening, as I recall—and we had watching in the Gallery a whole row of ladies, plus one man, who had broken their anonymity and shared with us the appalling experiences that each of them had been through as a result of revenge porn.
I am very proud that, even with the limited amendments that we managed to get through to the Criminal Justice and Courts Act 2015, we are now as a nation a little further ahead than most others in trying to deal with a very difficult issue. But there are so many more who are not caught in the current legislation. While in 2015-16 we know that 206 individuals were prosecuted under the new law, a survey by “Good Morning Britain” revealed that police forces in England and Wales had dealt with a total of 2,130 cases. There is quite a difference between these numbers in terms of what is going forward to prosecution, and we have already heard what some of the difficulties in that area are likely to be.
It is also critical that we as parliamentarians stay ahead of the speed of change in attitudes and behaviour that smartphones and social media bring in their wake. In the US, a McAfee study revealed that 36% of people had sent or intended to send an intimate picture. As legislators, we have to understand that, whatever our attitude to and opinion of that, we need to create laws that foresee the way that society is changing. These amendments therefore necessarily go further and we must credit the Women’s Equality Party for its part in doing some of the drafting, which resulted in us trying to amend this in the other place.
I particularly want to address the issue of anonymity. When we ran this campaign a year ago, some women stepped forward and were prepared to be named when they recounted what they had gone through. But part of the problem was that many victims were too scared to put their names out there. This happened to one lady whom we dealt with—because her name was out there and she was campaigning against this, it ensured that she got far more coverage on some of the websites that she was deliberately trying to avoid. It has now been accepted in current legislation by this Government that victims of forced marriage are given that anonymity; I see this as being a very similar area.
I will conclude here. I think that we are aware that in this area there are issues of suicide, self-harm and damaged reputation. As we talk now there are hundreds, perhaps thousands, of young men and women who are sharing intimate images that, frankly, will have a devastating impact on their future. It is up to us, through some of these amendments, to be ahead of the law at every stage.
Lord Faulks (Con)
My Lords, I am most grateful to the noble Baroness, Lady Grender, for mentioning my small part in the acceptance of revenge porn as part of the list of criminal offences that the Government accepted ought to enter the calendar of criminal offences. The Government looked carefully at this and, in many ways, some of the conduct that was embraced within so-called revenge porn was probably covered by existing criminal offences. However, it was accepted that such was the need to identify specifically this sort of behaviour that it was appropriate to include it as part of the Criminal Justice and Courts Act 2015.
While I entirely accept what lies behind these amendments and the evil that they are directed against, I think that one has to bear in mind that we have had only a very short time for this legislation to bed down. I am glad that there have been prosecutions; it appears that there was a need and the prosecuting authorities have acted accordingly. But I am not sure that I am, at the moment, satisfied that there is a need to go further in terms of definition. For example, Amendment 217 talks about threats to disclose. The Minister will no doubt correct me, but all these areas are probably covered by existing criminal law—for example, blackmail, threatening behaviour, theft or other offences. A threat may be something substantial but it may be something very trivial and we do not want to have relatively trivial matters embraced in what is often a very serious offence.
As to Amendment 218, of course, on the face of it, it seems attractive that there should be some compensation. I am a little concerned, however, about a judge in a criminal case having to assess anxiety and the degree of anxiety in terms of the appropriate quantum of damages. How is he or she going to do that? Will there be evidence from somebody expressing how affected they were, and the degree of the affection—whether, for example, it caused them to go to a doctor? There is a slight danger that we could lose sight of what is really important—a criminal offence, rather than whether there should be compensation.
Quite apart from the questions of appeal raised by my noble friend Lord Hailsham, there is some work to be done on this. On the question of appeal, surely there would be an appeal from the magistrates’ court to the Crown Court as of right, and to the court of criminal appeal in appropriate, and possibly restrictive, circumstances. It may be that in due course there would be some informal tariff, perhaps involving the Sentencing Council—but I would not like it to be thought that the criminal prosecution of matters should be used as some proxy for obtaining compensation.
Lord Rosser (Lab)
My Lords, I will be brief. These amendments cover a serious and disturbing issue that has received considerable publicity in recent months. The purpose of the amendments, as I understand it, is to tighten and extend the reach and scope of the law in respect of disclosure of private sexual photographs and films without consent and with malicious intent. They include new clauses on compensation and anonymity for victims. At this stage we will listen with interest to the Government’s response, including the extent to which they consider that the law as it stands is sufficient—or, alternatively, needed—to deal with any or all of the issues addressed in the amendments.
The Minister of State, Home Office (Baroness Williams of Trafford)
My Lords, as the noble Lord, Lord Marks, has explained, this group of amendments all relate to what is commonly referred to as revenge porn, as provided for in Section 33 of the Criminal Justice and Courts Act 2015. Amendments 216 and 217 seek to extend significantly the scope of the offence, but the Government consider that the offence is working well. I am pleased to see my noble friend Lord Faulks in his seat; as he said, there have been more than 60 convictions for the offence since it came into force in April last year.
The offence is deliberately tightly drafted to target those individuals who have disclosed private and sexual images without consent, and with the intention of causing distress to the individual depicted. We are not persuaded that a sufficiently strong case has been made for broadening the scope of the offence, as proposed by the two amendments.
The general effect of Amendment 216 would be to significantly extend the range of material that could be considered private and sexual for the purpose of the offence. Currently, the offence is drafted to capture material that is sufficiently sexually explicit that its dissemination would be likely to cause real distress to those depicted. The offence also provides that images that are photoshopped—for example, so that a non-sexual image of an individual becomes sexual—should not be covered by the offence. This is because the disclosure of such an image, though still distressing, does not have the potential to cause the same degree of harm as the disclosure of an undoctored photograph showing images of the kind referred to in Section 35(3) of the 2015 Act. The noble Lord, Lord Pannick, made some interesting observations to that end. To alter the definition of “sexual” as proposed in Amendment 216 would, in our view, unjustifiably extend the scope of the offence.
Regarding the extension of the offence proposed by Amendment 217, we see no need to capture those who threaten to post such images. The offence, rightly, deals only with the act of actually disclosing private and sexual images, as it is the disclosure of the images that causes the harm which criminalising this behaviour seeks to prevent. As my noble friend Lord Faulks says, threats to disclose could, depending on the circumstances, be captured by existing offences that tackle harassment, malicious communications or, of course, blackmail. It is also difficult to see what would be gained by including an intention to cause fear or alarm to the victim, as distress is sufficiently broad a term for these purposes. Amendment 217 also seeks to make it possible for the offence to be committed recklessly as well as intentionally. The offence is targeted at those who deliberately seek to cause distress to victims through the dissemination of private and sexual material. This malicious intent—the revenge element of revenge porn, so to speak—is a key feature of the offence and we believe it would be wrong to dilute this by applying the offence to conduct that is the result of recklessness rather than a deliberately malicious act. Similarly, the proposal to extend the offence to those who,
“knowingly promote, solicit or profit”,
in relation to revenge porn material would shift the emphasis from those who disclose the relevant images with malicious intent, the mischief which this offence is intended to address.
Lord Marks of Henley-on-Thames
My Lords, I will be very brief in response. We will, of course, consider the Minister’s reply in detail between now and Report.
On the question of appeal and the cap on compensation, I am anxious that victims are not directed to civil proceedings as a result of the difficulties I foresee here. Rather than imposing a formal cap, I am far more sympathetic to the idea of requiring either the Sentencing Council or the Judicial College to introduce sentencing guidelines for compensation for these offences. I am not, at the moment, convinced by the Minister’s response that current compensation-awarding powers necessarily cover the kind of distress and hurt caused by these offences and I cannot see why a specific power should be otiose.
On the points made by the noble Lord, Lord Pannick, the extension of the offence in respect of the type of depictions and images that can be shown would bring this Bill in line with Scottish legislation, as I said. The threshold criteria, according to which images must be private, published without consent, and with intent to cause to distress, answers the point that a distinction should be drawn between the precise nature of the image: if images meet those criteria, the fact that it is not the pubic area but only breasts and buttocks that are shown should still be enough to make them sexual. I am not convinced by the alternative catch-all provision, although I see the force of the point.
The noble Lord, Lord Faulks, made a point about threats to disclose information already being criminalised under certain laws. He mentioned blackmail and theft and the Minister mentioned harassment. The problem with blackmail is that it involves unwarranted demands with menaces, but there is no suggestion here that the mischief at which the amended offence would be aimed is a demand; it is the desire to hurt. I am really not sure that that is covered by any existing offence. Hurt can be caused by the threat of disclosure just as it can be caused by an actual disclosure, and I am grateful to the noble Viscount, Lord Hailsham, for his support on that point.
As to doctored photographs and images, the point about the distress that they cause is that the people who see them do not know that they have been doctored —they are seen as images of the subject. That is how hurt is caused and that is why it is important to cover such photographs and films.
On anonymity, there is no reason why a victim should have to go through the hoops of satisfying a judge that it is required when generally in sexual offence cases it is given as a right. It is also particularly important that those victims who are considering whether to complain of an offence and take the matter to court are guaranteed anonymity as this is an important part of persuading them to come forward with a complaint that then gets prosecuted. The Minister did not answer that point at all.
With your Lordships’ leave, I beg to withdraw the amendment.
Lord Paddick
“Pre-charge anonymity
(1) After a person is accused of a sexual offence, no matter likely to lead members of the public to identify them as the person against whom the accusation is made shall either be published in England and Wales in a written publication available to the public, or be broadcast in England and Wales, up until that person is charged with the offence, except where a judge is satisfied that it is in the public interest to remove the restriction in respect of that person.(2) In subsection (1), “matter” includes but is not limited to—(a) a still or moving picture or image of that person; or(b) the name and address of that person.(3) In subsection (2)(a), “picture” includes a likeness however produced.”
Lord Paddick (LD)
My Lords, Amendment 219A is tabled in my name and that of the noble Lord, Lord Campbell-Savours. This amendment is designed simply to protect the identity of those accused of sexual offences in a similar way that the identities of the alleged victims of sexual offences are currently protected. The significant difference here is that the identity of the accused would be protected only until the point of charge, and if the police believe that the public interest demands it, the police can apply to a court to have that ban lifted so that the identity of the accused can be put into the public domain before charge. There needs to be a balance between the rights of the accused and the rights of the victims of sexual offences. This amendment is designed to allow us to establish where that balance should be.
We will all be acutely aware of the impact that sexual offences can have on the victims or survivors, but until recently the voice of those who have been falsely accused of such offences has not been heard. Some noble Lords will have heard about the impact that such accusations have had on the widow of Lord Brittan, Sir Cliff Richard and Paul Gambaccini when they came to speak to Members of the House about their experiences. I introduced that event but did not hear their personal accounts. Since then I have been contacted by others—the families of those whom none of us has ever heard of—who have been similarly devastated by allegations of a sexual nature being made, those allegations being made public, and then the police realising that there was no credible evidence to support the allegations. The emotional first-hand accounts of the pain and suffering of those falsely accused are powerful, but I have tried to stand aside from such emotions and to deal with this matter objectively.
It is important that I declare a number of interests in terms of my experiences over the years. During my professional career of more than 30 years as a police officer, I have dealt with, supported and campaigned for justice for those who have been the victims of male violence in general and of sexual offences in particular. I was one of the most senior police officers at New Scotland Yard when the incoming commissioner, Sir Ian, now the noble Lord, Lord Blair of Boughton, asked me to carry out a review of how the victims of rape were dealt with by the Metropolitan Police. Having been the co-author of a book that significantly changed the way the police investigated rape offences for the better, the commissioner wanted to ensure that the Metropolitan Police was among the best in the world at dealing with rape allegations. I carried out an in-depth review with academics and survivor groups, and produced hard-hitting recommendations on how the police should improve the way they support victims of rape. I worked together with the then assistant commissioner, Tim Godwin, to establish further Havens, places in the National Health Service where the survivors of sexual offences could go to receive the physical and psychological support they needed, where forensic samples could be preserved, and where they could be put in contact with the police if they wanted to pursue the case through the criminal justice system.
One of the first engagements I had with a group from outside the House following my introduction three years ago was with representatives of the End Violence Against Women Coalition, a UK-wide coalition of more than 70 women’s organisations and others working to end violence against women and girls in all its forms. The point I want to make is that I am passionate about working to end violence against women and girls, ensuring that the survivors of male violence are supported and the perpetrators brought to justice if the survivor wants to pursue the matter.
I know from personal experience about male violence and no one is more committed to ensuring that the criminal justice system does more to protect and support survivors, as well as ensuring that the perpetrators are successfully brought to justice in a way that respects survivors and encourages them to come forward. But this cannot be justice for victims at any cost. The protection of the rights of survivors cannot be at the unnecessary and unreasonable denial of the rights of the accused.
Many sexual offences are different in nature from other criminal offences. In most cases of criminal wrongdoing, there is objective and physical evidence of that wrongdoing. If someone is accused of murder, there is almost always a body. If someone is accused of child cruelty, there is a child who has been harmed. In many sexual offences cases, particularly where the offence is historical, very often there is no objective, independent physical evidence. The allegation can be made and the complainant can be credible, but the complainant may be mistaken or, albeit rarely, malicious. One has only to look at those parts of the report produced for the Commissioner of the Metropolitan Police by Sir Richard Henriques, which was made public last week, to realise how the police can be taken in. The police must treat every allegation made to them seriously, but they must believe the person making the allegation as far as the initial investigation and care and support for that person are concerned. They must treat the allegations as true as far as their interaction with that individual is concerned, unless and until they establish that there is no credible evidence to support the allegation. However, until they do establish that there is credible evidence that they can put before a court, they should not do anything to identify the accused, unless there are exceptional circumstances. That is what this amendment seeks to achieve.
Lord Campbell-Savours (Lab)
My Lords, the House is indebted to the noble Lord, Lord Paddick, who has huge experience in this area. I open my remarks by telling a true story. A woman rifles through the dustbin of a reputable consultant, finds a used condom, smears the contents on herself and makes a false allegation of rape. Because the accused has no right to anonymity, he is suspended as a consultant psychiatrist, hauled before the GMC, shunned by his friends, attacked on the internet, loses £100,000, part of which was income, and is then discredited in his own community. Should we not be looking at the law on anonymity for men, as there are many cases of reputations that have been destroyed where prosecutions have been dropped?
I have raised this issue on many occasions over the last 15 years of my membership of this House. To be frank, I got absolutely nowhere. The problem is not in this House, but in the Commons. There are women in the Commons who feel strongly that transparency in the legal and investigatory processes helps to secure a high rate of successful prosecutions. I understand all that. The facts as the law stands speak for themselves: a 31% increase in recorded rapes in 2015 alone; gross underreporting of the crime;