Tuesday 12th April 2016
(8 years ago)
Public Bill CommitteesRead Hansard Text Amendment Paper: Public Bill Committee Amendments as at 12 April 2016 - (12 Apr 2016)
This text is a record of ministerial contributions to a debate held as part of the Policing and Crime Act 2017 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
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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
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.
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.
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.
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.
Policing and Crime Bill (Seventh sitting)
(Limited Text - Ministerial Extracts only)
Read Full debateTuesday 12th April 2016
(8 years ago)
Public Bill CommitteesRead Hansard Text 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.
This text is a record of ministerial contributions to a debate held as part of the Policing and Crime Act 2017 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
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.
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
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.
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.
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
Tuesday 26th April 2016
(8 years ago)
Commons ChamberRead Hansard Text 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.
This text is a record of ministerial contributions to a debate held as part of the Policing and Crime Act 2017 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
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.
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.
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.
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.
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.
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.
Wednesday 26th October 2016
(7 years, 6 months ago)
Lords ChamberRead Hansard Text Amendment Paper: HL Bill 55-II(b) Amendments for Committee, supplementary to the second marshalled list (PDF, 62KB) - (26 Oct 2016)
This text is a record of ministerial contributions to a debate held as part of the Policing and Crime Act 2017 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
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.
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 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, 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 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 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 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 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.
“(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 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. (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).”
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.
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.
“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 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.
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.
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.
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.
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 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.
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.
Wednesday 26th October 2016
(7 years, 6 months ago)
Lords ChamberRead Hansard Text Amendment Paper: HL Bill 55-II(b) Amendments for Committee, supplementary to the second marshalled list (PDF, 62KB) - (26 Oct 2016)
This text is a record of ministerial contributions to a debate held as part of the Policing and Crime Act 2017 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
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 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”.”
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.
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.
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.
Wednesday 2nd November 2016
(7 years, 5 months ago)
Lords ChamberRead Hansard Text Amendment Paper: HL Bill 55-III(a) Amendments for Committee, supplementary to the third marshalled list (PDF, 64KB) - (1 Nov 2016)
This text is a record of ministerial contributions to a debate held as part of the Policing and Crime Act 2017 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
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, 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.
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
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 (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.
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.
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
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 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.
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.
Wednesday 2nd November 2016
(7 years, 5 months ago)
Lords ChamberRead Hansard Text Amendment Paper: HL Bill 55-III(a) Amendments for Committee, supplementary to the third marshalled list (PDF, 64KB) - (1 Nov 2016)
This text is a record of ministerial contributions to a debate held as part of the Policing and Crime Act 2017 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
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“( ) 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 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
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;”
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 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.
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).””
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.
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.
Wednesday 9th November 2016
(7 years, 5 months ago)
Lords ChamberRead Hansard Text Amendment Paper: HL Bill 55-IV Fourth marshalled list for Committee (PDF, 263KB) - (7 Nov 2016)
This text is a record of ministerial contributions to a debate held as part of the Policing and Crime Act 2017 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
“(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.
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.”
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.
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
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.
“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 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.
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.
Wednesday 9th November 2016
(7 years, 5 months ago)
Lords ChamberRead Hansard Text Amendment Paper: HL Bill 55-IV Fourth marshalled list for Committee (PDF, 263KB) - (7 Nov 2016)
This text is a record of ministerial contributions to a debate held as part of the Policing and Crime Act 2017 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
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“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.
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.””
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?
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.
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.
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, 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
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 (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 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.
“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).”
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?
(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.
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.
Wednesday 16th November 2016
(7 years, 5 months ago)
Lords ChamberRead Hansard Text Amendment Paper: HL Bill 55-V Fifth marshalled list for Committee (PDF, 129KB) - (14 Nov 2016)
This text is a record of ministerial contributions to a debate held as part of the Policing and Crime Act 2017 passage through Parliament.
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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.
Baroness Williams of Trafford
My Lords, I thank all noble Lords who have spoken in the debate. The variety of views on this subject speak to me of just how difficult an issue it is. I also particularly thank the noble Baroness, Lady Brinton, the only woman apart from myself to speak in the debate. This is a very sensitive issue, and many noble Lords have talked about getting the balance right. We think that the Government have got the balance right, and I will explain why.
I shall start with the report by Richard Henriques on the Metropolitan Police Service’s handing of its investigations into allegations of sexual offences by persons of public prominence. That is a further element contributing to the debate. In answer to the point made by my noble friend Lord Attlee, I have been fully briefed on that report. It was commissioned by the Commissioner of the Metropolitan Police, and as I said to this House the other day, the report—including its publication—is a matter for him and for the force. The commissioner has made a public apology to Lord Bramall, to Lady Brittan and to Harvey Proctor for the impact that Operation Midland had on their lives.
At the outset, let me say that the Government fully understand the anguish felt by those who have had their reputation traduced in the media following unfounded allegations made against them. The notion that someone is innocent until proven guilty is central to our justice system and to the rule of law, so the Government have every sympathy for the underlying aim behind the amendment. I will not go into what should be redrafted, but will talk about the amendment as it stands.
The Government also start from the position that there should, in general, be a presumption of anonymity before the point of charge. I believe that there is also a general acceptance that there will none the less be exceptional circumstances in which the public interest means that a suspect should be named. If there is a divide between noble Lords and myself on this issue, it is not therefore one of principle but is about how best to give effect to the shared policy position. For the Government’s part, we are not persuaded that legislation is the right way forward at this time.
One of the principal arguments put forward in support of retaining the public interest exception is that, as the noble Lord, Lord Pannick, said, there will be circumstances in which the police need to publicise a person’s identity to allow further witnesses to a known offence to come forward, or further unknown offences by the same person to come to light. As he also said, witnesses can come forward at a trial only if there is, in fact, a trial. He also made the further point that the accused could themselves create their own publicity around an event.
As the current Prime Minister said in response to the previous Home Affairs Select Committee on this issue,
“While we are clear that transparency and consistency should be at the heart of the criminal justice system, … we recognise that there is a difficult balance to strike in some criminal investigations between the operational advantages of naming suspects and respecting suspects’ right to privacy”.
As noble Lords will know, the issue of anonymity in relation to sexual offences has been debated in this House over many years. Anonymity for complainants in rape cases was introduced in 1976. It was subsequently extended to sexual offences generally. Anonymity for defendants who have been charged with an offence was introduced at the same time, but abolished in 1988. Defendant anonymity was subject to exhaustive consideration before and during the passage of the Sexual Offences Act 2003.
As the noble Lord, Lord Rosser, said, in 2010 the then coalition Government published independent research relevant to defendant anonymity in rape cases, which found,
“insufficient reliable empirical evidence on which to base an informed decision on the value of providing anonymity to rape defendants. Evidence is lacking in a number of key areas, in particular, whether the inability to publicise a person’s identity will prevent further witnesses to a known offence from coming forward, or further unknown offences by the same person from coming to light”.—[Official Report, Commons, 12/11/10; col. 27WS].
The coalition Government declined to proceed with introducing defendant anonymity in rape cases unless the evidence justifying it was “clear and sound”. In the absence of any finding to that effect, they reached the conclusion that the proposal did not stand on its merits and would not be proceeded with further.
While the amendment before us would confer anonymity on suspects rather than defendants, I note the preceding history to highlight the challenges we face in coming to an equitable view on this sensitive issue. There are powerful arguments against conferring anonymity on either suspects or defendants of sexual offences simply as a quid pro quo for that enjoyed by complainants. However, I also recognise that those whose identity is made public, be they persons of public prominence or not, may suffer unjustifiable reputational damage. Noble Lords have given many examples of those individuals. While we may personally empathise in individual cases, this should not blind us to the bigger picture and the very significant reasons that underpin the current regime.
As I have said, it is a fundamental tenet of our justice system that everyone is innocent until proven guilty. There must never be an assumption that being charged or arrested for an offence indicates that a person is guilty of a crime. Introducing a statutory scheme for pre-charge anonymity for sexual offences could be seen to undermine that principle. Indeed, while it is true that a suspect who is not further proceeded against in respect of a sexual offence may nevertheless suffer reputational damage, the same may be true of any other serious offence, such as murder, theft or fraud, as noble Lords have said. As with these other offences, it is absolutely right and proper for the police to have operational independence in deciding whether to name a suspect.
The police are guided in making such decisions by the College of Policing’s authorised professional practice material Guidance on Relationships with the Media. The current guidance makes clear that decisions should be made only on a case-by-case basis and the police should not release the names of those who are arrested or suspected of a crime unless there are clearly identified circumstances to justify it. These would include incidences, for example, where there is a threat to life or to assist the police in the detection or prevention of crime.
The College of Policing is currently developing new authorised professional practice on media relations and has recently undertaken a consultation as part of its development. The consultation closed in July and the college expects to publish its response to the consultation in the new year. It would not be right, therefore, for the Government to pre-empt the outcome and we will await the conclusion of the college’s review. However, the Government firmly believe that non-statutory guidance, rather than primary legislation, is the appropriate vehicle for guiding the police in these operational decisions. It is vital that the police are able to exercise their own judgment and act swiftly in the circumstances where releasing the name of a suspect may prevent further harm, for example.
I must emphasise that public reporting of a suspect’s name is unusual, but in certain circumstances the police authorise release so that any other potential victims of a suspect are encouraged to come forward. The introduction of a statutory scheme would hamper the police’s ability to act in this way. We know that such identification can help other victims to recognise that they are not the only ones who have suffered sexual abuse—as the noble Lord, Lord Rosser, rightly articulated—and this might encourage them to overcome their reluctance to come forward. Victims must feel that they are able to come forward and report abuse to the police as well as get the support that they need. We have seen recently an increase in the number of offences recorded. That is thought to be the result of increased willingness to report among victims and action taken by police forces to improve their approach to investigating sexual abuse. As the noble Lord, Lord Rosser, said, convictions for this offence are still woefully low.
In March this year, the chief executive of the College of Policing, Alex Marshall, wrote to all chief officers and PCCs following a number of high-profile cases concerning non-recent child abuse which had focused public attention on the police approach to victims, both at the point of reporting and in investigating the crime. Mr Marshall’s letter put on record that:
“In cases involving sexual offences, substantial efforts have been made to improve the confidence of victims to come forward and report crimes to the police. It is important that progress is not lost”.
I cannot emphasise this point enough. We must not undermine victims’ confidence in our response to sexual offences. Agreeing this amendment could send a message to sexual offence victims that they are less likely to be believed than victims of any other crime. This would be an undeniably retrograde step.
As has been highlighted in the debate we have had today, there are two issues in relation to this matter. The first is the right of the police to name individuals and the second relates to cases in the media where those being investigated, but who have not been charged, have been named. A number of these cases highlighted in the media have been as a result of information being provided not by the police but from other sources. The guidance from the college to the police does not interfere with the rights of the media to publish information obtained from another source, for example, where such information is provided by a victim of crime or a witness to the crime. The press is self-regulated and develops its own codes of practice. Any reporting which breaches an individual’s right to privacy would need to be demonstrably in the public interest. The Government are committed to an independent press, free from government interference. The majority of the press are members of the Independent Press Standards Organisation and are held to account via the Editors’ Code of Practice. The code stipulates:
“Everyone is entitled to respect for his or her private and family life, home, health and correspondence, including digital communications”.
As noble Lords will be aware, we already have a number of remedies in our justice system to redress the balance where individuals feel they have been treated unfairly—
Lord Campbell-Savours
May I ask the Minister a simple question? She used the phrase,
“demonstrably in the public interest”.
What was demonstrably in the public interest in the naming of Sir Cliff Richard for an offence he did not commit, and Leon Brittan, Ted Heath and Paul Gambaccini? What was demonstrably in the public interest in those cases?
Baroness Williams of Trafford
My Lords, I will not talk about individual cases, and noble Lords would not expect me to do so. I am talking about the code of practice for the press. I have also just talked about the guidance from the College of Policing. We are committed to an independent press. Noble Lords will already be aware that we have a number of remedies in our justice system to redress the balance where individuals feel they have been treated unfairly by the media and others. This includes resolution through the courts.
In conclusion, and for the reasons I have outlined, I am satisfied that there is an operational need for the police to be able to determine whether to name an individual ahead of charge and that adequate provisions already exist in current legislation and practice to safeguard those accused of a crime without the need for legislating for pre-charge anonymity. I hope that at the end of this rather long debate the noble Lord will feel able to withdraw his amendment.
Baroness Williams of Trafford
My Lords, I thank the noble Lord, Lord Marks, for raising the important issue of the protection of complainants of rape and sexual offences from being questioned about their sexual history. It is vital that victims have confidence to report crimes as terrible as rape and in the criminal justice system’s process of bringing offenders to justice. Our message to those who are willing, but currently worried about reporting such offences, is that they are encouraged to do so. As my noble friend Lord Hailsham says, Section 41 of the Youth Justice and Criminal Evidence Act 1999 provides that questions about a complainant’s sexual history are not allowed in rape and sexual offences trials. This is except where a strict set of criteria are met, so they are rare. The legislative bar on adducing evidence of a complainant’s sexual history is high and decided by judges on a case-by-case basis. The case that has prompted concerns about how the protective bar is operating has made no change to that.
We are aware of the recent concern about the admissibility of a complainant’s previous sexual history, and wider perceptions about the law. We accept that the concern should be looked at and we intend to deal with it. We have committed to looking at how the law is working in practice and will do so as expeditiously as possible, to understand whether any further action needs to be taken.
The noble Lord also asked whether anything has followed on from the 2006 Home Office study. The evaluation in 2006 made recommendations to ensure that the intention of the legislation would be fulfilled. There was no finding of a need to change the legislation substantially at that point.
With that brief explanation, I hope the noble Lord feels happy to withdraw his amendment.
Lord Kennedy of Southwark
Can the Minister be clear from the Dispatch Box as to whether she has announced the review?
Baroness Williams of Trafford
My Lords, we have carefully considered the concerns that have been raised about the provision and we will then determine how best to look at how it is working in practice before deciding whether any further action needs to be taken. We are going to do it as soon as possible.
Lord Marks of Henley-on-Thames
My Lords, the noble Lord ought to be cross-examining himself because he has just secured a concession by excellent advocacy, which I failed to do—or I did, but not in such clear terms. In view of that, I will withdraw the amendment.
I disagree with the noble Viscount, Lord Hailsham, on only one point, which was his assertion that I disagreed with him because I said, when speaking to this amendment, that there may be those rare cases where a dispassionate observer might think the exclusion of a relevant account could lead to injustice and unfair convictions. The point here, and the point we seek to have reviewed, is whether, as a result of the Ched Evans case, there might be cases where the restrictive nature of Section 41 has been or may be watered down. We need to look at how it is operating. It is very important that rape gets reported and that the legislation in place is certainly as restrictive as we always thought Section 41 was and as the textbooks say it is. The public concern is that this case seems to have weakened that protection; I am sure the review will take that point on board. I beg leave to withdraw the amendment.
Baroness Deech (CB)
My Lords, I did not put my name to this amendment because there were enough people already, but I used to teach family law, including the law of marriage. In this country, it is very easy to get married in a registry office or in a properly registered religious place. You can get married in a hotel if you want to or you can have a civil partnership. There are all sorts of official unions that you can make very easily, but the worst of all possible worlds is to be duped into believing that you are married in a religious ceremony and then find that you are not, because you lose any protection that English law gives you, while at the same time, stereotypically, your husband—if he is really your husband—can abandon you or take another wife.
This is not just a question of running parallel systems of law: it is about the protection of women and the need to preserve transparency and regularity in people’s marital status. All that is necessary is for more mosques to become registered as proper places of marriage, just in the way that synagogues are, and all would be resolved. I see no arguments against this amendment at all. It is overdue.
Baroness Chisholm of Owlpen (Con)
My Lords, I have listened carefully to the arguments made by the noble Baronesses, Lady Cox and Lady Deech, my noble friend Lady Buscombe—who made an excellent speech—and the noble Lord, Lord Alton. As has been said, the noble Baroness, Lady Cox, has done so much to raise in this House the problem of marriages that are not legally binding and that therefore do not carry the legal rights and responsibilities of a legally binding marriage. I recognise that she has spoken to many women in this situation and has sensitively presented their evidence to your Lordships this evening and on other occasions. There is particular cause for concern if one or both of the parties is unaware of their lack of rights or coerced into a marriage.
There is a strong tradition of religious marriages in England and Wales, with a long-established right that couples are able, in their place of worship, to enter into a marriage that is legally contracted, provided that the requirements of the law are met. Some people, for religious or other reasons, have preferred to enter into a marriage that is not capable of legal recognition. To make it illegal to conduct, or enter into, religious marriages that are not legally contracted is likely to be an overly complex solution and one that restricts personal choice. It is also unclear how many unregistered religious marriages would take place in breach of any change in legislation, since, by their nature, public notice of these marriages would not be given. I am sure that noble Lords appreciate the complexity of legislating in people’s private and religious lives.
We are conscious that there are complex issues behind religious marriages that are not legally valid, including where people use a religious ceremony to give recognition to an additional spouse, and so we do not consider that any one approach to Muslim or other faith communities can work in isolation. Of course, we are also aware of concerns that some women can be put under pressure to use the services of religious councils, including sharia councils, to arrange matters on the break-up of the relationship and that these women are not always treated equally when recommendations are made.
One of the issues that the noble Baroness highlighted was that of child custody, a matter raised by women to whom she has spoken. In fact, it is not the case that women have few or no rights in this matter, although they may well not be aware of their rights. In England and Wales, where there is any dispute between parents about arrangements for their children, either parent may apply to the family court for one or more types of order under the Children Act 1989. Most commonly, this will be a child arrangements order determining who a child is to live with or spend time with, and where and when this is to happen, referred to respectively as custody and access in many other jurisdictions. These proceedings are free-standing. This means that a parent is entitled to make an application to the court at any time, simply by virtue of being the parent of the child concerned and regardless of the status of their relationship with the other parent. There is no distinction for this purpose between legally married parents, unmarried parents, parents in a religious marriage that is not legally binding, parents who are otherwise cohabiting or, indeed, parents who are living apart.
On the issue of polygamy, noble Lords will be aware that polygamous marriages cannot be legally contracted in the UK. Attempting to enter into a polygamous marriage under the law of England and Wales is a criminal offence which carries a maximum sentence of seven years in prison. Nor is it possible for anyone domiciled in the United Kingdom to enter into a polygamous marriage abroad. Where a polygamous marriage is contracted within the law outside the United Kingdom between parties neither of whom is domiciled in the United Kingdom, it will be recognised by the court. The Government continue to support the law preventing polygamous marriages from being entered into in England and Wales.
The Law Commission has also given initial consideration to the issue of religious marriages that are not legally valid. It published its scoping study in December last year setting out the parameters of a potential review of the law concerning how and where people can marry in England and Wales, following consultation with a wide range of religious organisations and other interested parties. The scoping study concluded that this was one of a number of issues that might be ameliorated through a fairer and more coherent framework for marriage. The Law Commission also considered that offences relating to the celebration of marriage should be reviewed. It would not make sense for the Government to introduce a new criminal offence, such as that proposed by this amendment, without evidence of the scale and nature of the problem and without consideration of how the new offence would fit within existing marriage law.
The Government are carefully considering the Law Commission report and will respond in due course. We will also wish to consider the issue of unregistered religious marriages in light of the findings of the independent sharia review, launched in May by the current Prime Minister. The Government share the noble Baroness’s concerns and take them very seriously indeed. These concerns are central to the independent sharia review and involve the equalities, justice and faith and integration agendas across government. I thank the noble Baroness for raising again this important issue and the very real consequences for people’s lives.
My noble friend Lady Buscombe asked how many sharia councils there are across Europe. I do not have a number; I will have to go away, look into it further and write to my noble friend. I trust that the noble Baroness, Lady Cox, will understand the need to wait for the Government’s response to the Law Commission report and the sharia review and, on that basis, will withdraw her amendment.
Baroness Cox
My Lords, I am very grateful to all noble Lords who have contributed to this debate and those who have supported this amendment and made some very powerful additional arguments. I thank the Minister for the sympathy that is there in her response, but I feel some concern over the apparent lack of a sense of urgency about the need to address the real suffering that is going on at the present time. To wait for the outcomes of the reviews leaves these women in a terrible situation. The gap, the chasm, between the de facto realities and the de jure realities is one into which these women are falling and suffering in ways that should not be allowed in our country today. These issues are urgent: women are suffering on a large scale. I intend to take this debate back to my colleagues, with whom I am sharing these concerns, to consider the most appropriate ways forward. I am very grateful for what has been said tonight; we can learn from it ways to proceed to help the women suffering in these appalling situations. In the meantime, I beg leave to withdraw the amendment.
Baroness Williams of Trafford
My Lords, I am very grateful to the noble Lord, Lord Kennedy, for bringing this forward and drawing attention to what is a very important issue. Exploitation of, and offences against, children, whether online or offline, are appalling and this Government are committed to tackling such criminality very robustly. The internet has opened up a wealth of opportunities for young people, but it has also exposed them to new dangers.
The Government are committed to improving the safety of children online and have a strong track record of working with the internet industry and the charitable sector to achieve it. However, we also recognise that our understanding of the scale and nature of the problem is far from complete, and in many ways we almost feel that we are running to stand still.
Our starting principle is that what is illegal offline is illegal online and criminal offences typically apply in both environments. However, recognising that the picture is less clear in relation to offending online, the annual data requirement on forces includes a requirement to flag offences where the reporting officer believes, on the balance of probability, that the offence was committed, in full or in part, through a computer, computer network or computer-enabled device. This online flag has been mandatory since April 2015, and all 43 forces in England and Wales have provided data since then.
The NCA’s annual strategic assessment of child sexual exploitation and abuse, published in August, found that the visibility of the threat was improving, but that there remained significant intelligence gaps in relation to the overall scale and prevalence of the threat. The NCA works continually to improve our understanding of the threat. I reassure the noble Lord and the noble Baroness that our response to the threat is rightly robust and includes law enforcement agencies taking action against online offenders, developing new capabilities to find and safeguard victims and working with the internet industry to remove illegal images.
For example, all UK police forces and the NCA are now connected to the Child Abuse Image Database—otherwise known as CAID—which reduces the time taken to undertake investigations and identify the victims. A new victim identification suite has been established by the NCA with access to CAID. In 2015-16, UK authorities identified over 450 victims from abuse images, more than double the number of any previous year and, in a recent case, the Child Exploitation and Online Protection command of the NCA was able to use CAID to review one of its largest ever seizures within six weeks. Based on the case size, before CAID this would have taken a minimum of six months to review.
In 2015-16, the NCA received £10 million of additional investment for further specialist teams to tackle online sexual exploitation. This enabled a near doubling of its investigative capacity to tackle child sexual exploitation. An NCA and GCHQ joint operational cell has also been established to target the most technologically sophisticated offenders. In 2015, 2,861 individuals were prosecuted for offences involving indecent images of children—a 27% increase on the previous year.
I hope I have persuaded the noble Lord that we are working to improve our understanding and our response to the threat and that he will withdraw his amendment.
Baroness Hamwee
My Lords, to add to what I said before, I think that there is a very important role for the Home Office, working in conjunction with the police and many others, on the consistency of the data, to which this amendment refers but perhaps a bit obliquely. It seems to be an issue that comes up time and time again. Yesterday a report was published by ECPAT and Missing People on young people going missing from care and one of the recommendations was about achieving consistency of data.
Baroness Williams of Trafford
It might please the noble Baroness to know that I have become the Minister for data and therefore anything that she can feed into the job that I will be doing will be most appreciated.
Baroness Hamwee
My Lords, I can sum up my comments really as, “as above”. The points I made on the previous amendments are relevant, although the report I have just mentioned called Heading Back to Harm is particularly relevant here. There are so many associated issues that I would prefer the focus to be on practice—I will add it to my point about data—including trust in authority. In some situations, lack of trust in authority is a big component in young people who have been rescued going missing again. I do not underestimate the importance of the issues at the heart of this. Can the Minister give the Committee any information about the success of child abduction warning notices, where they apply, now, before we seek an extension?
Baroness Williams of Trafford
My Lords, Amendment 220 would create a new offence of abduction of a vulnerable child aged 16 or 17. The offence would be in addition to the existing offence in Section 49 of the Children Act 1989, which already makes it an offence to abduct a child in care, including those aged 16 and 17. The new offence would also be in addition to Section 2 of the Child Abduction Act 1984, which makes it an offence to abduct any child under the age of 16. The new offence would extend only to children aged 16 and 17 who are considered to be vulnerable and therefore in need of additional protection.
The criteria for being considered vulnerable are set out in subsection (2) of the new clause and cover a range of circumstances defined in the Children Act 1989 and Housing Act 1996. These criteria potentially encompass a wide range of individuals and raise concerns that they would have very wide effect. For example, as drafted, the offence would cover all disabled young people of that age. The children it extends to are often in need of services such as housing and education but are not necessarily in need of special protection, as opposed to others of that age.
The Government completely share the objective of the noble Lord and the noble Baroness of ensuring that young people are protected from sexual exploitation and other abuse. That is why, in March last year, we introduced new civil orders to protect the vulnerable and disrupt offending at the earliest opportunity. We believe that providing the right powers to the police is the way forward. Our priority is to prevent offending, so making better use of these orders is a more precisely targeted response than creating a new criminal offence.
As noble Lords will be aware, a similar new clause was tabled in the House of Commons and there have been amendments to previous Bills on this issue. We remain unpersuaded that the proposed new abduction offence is the way forward. Young people aged 16 and 17 are generally deemed capable of living independently of their parents and of exercising their free will, notably on sexual matters. As noble Lords have said, we therefore need to achieve the right balance between additional protection for young people in this age group and recognition of relevant rights and responsibilities. Creating a new offence would raise difficult issues about where we draw the line, and it would not help young people who are older than this age group but are also very vulnerable.
That is why we believe that sexual risk orders provide appropriate powers for the police. I do not have the figures or any information on how the child abduction warning list is working; it might be in my pack. I apologise—I am getting quite tired at this stage of the day. I will write to the noble Baroness. The preventive civil orders are relatively new and we will therefore keep under review whether they fully address the kind of predatory behaviour to which the amendment refers.
Turning to Amendment 222, it is very important that we get the right balance in national reporting of data. This Government have already introduced a new mandatory requirement for all forces to collect data on child sexual abuse and child sexual exploitation offences as part of the police annual data requirement, and from next April we will be expanding that requirement to include non-crime incidents related to CSE as well. This means that for the first time, we will have all child sexual abuse and exploitation-related crimes and incidents recorded by the police. This will allow for all sexual offences against children to be identified; for example, it was previously not possible to identify obscene publication offences that are specifically related to victims aged under 18.
We are working closely with the police to monitor and review the use of the new sexual risk orders, as well as child abduction warning notices, in order to ensure they are effective in protecting children who are at risk of sexual harm. I think that is precisely the noble Baroness’s point. As child abduction warning notices are part of an administrative process, the police do not regularly record the number issued. This means that, in practice, this amendment would place a significant and disproportionate new burden on the police manually to interrogate their systems.
We agree on the need to do all we can to disrupt predatory behaviour before it causes lasting harm to children and young people. The Government remain unpersuaded that the approach proposed in these amendments is the right way forward. In order better to understand the issues raised and to create an evidence base for the use of existing powers—that is the important thing here—we have set up a working group that will monitor the use of sexual risk orders so that we can fully evaluate whether there are gaps in police powers to disrupt at the earliest opportunity. I expect this group to report to Ministers in the autumn of next year, and we will consider its findings very carefully.
I hope the noble Lord will feel content to withdraw the amendment.
Baroness Hamwee
My Lords, we on these Benches support our noble friend Lady Brinton. I do not want to detain the Committee so will make just a couple of comments. When discussing matters such as trafficking and slavery, I often hear that these issues are where domestic violence was 20 years ago. It is very concerning to hear about the treatment of women—and men—who have suffered domestic violence in the way that my noble friend has described. That is not progress over the past 20 years.
There is another argument for my noble friend’s various amendments, which I do not think she mentioned; that is, obtaining the best evidence from victims who are also witnesses. These are very sensitive issues and one hears of very good practice by some police forces and some members of the judiciary. It is a question of spreading that good practice. There is an awful lot raised in these amendments, including the very delicate issue of ticketing for the judiciary dealing with certain cases. This is not the moment to go into that but the implications of the amendments need to be taken on board over a very wide area of practice. The Committee should be grateful to my noble friend and the noble Lord for ensuring that they are raised. It is a pity that, coming to the end of Committee, we are not able to do them the justice that we would all like to do them.
Baroness Chisholm of Owlpen
My Lords, I thank the noble Baroness, Lady Brinton, and other noble Lords who have spoken, for raising the important issue of victims’ rights.
It is crucial that the needs of victims of crime are given proper consideration at every stage of the criminal justice process. We published a revised Code of Practice for Victims of Crime, which came into force in November 2015. As a result, victims of all criminal offences, not just victims of more serious offences, are entitled to support under the code. The code provides victims with a range of entitlements, including information about their case, interpretation and translation, and for them to be treated in a respectful and professional manner without discrimination of any kind. Furthermore, the code requires police and other service providers to have a complaints procedure. If victims are dissatisfied with the outcome, they are able to refer their complaints to the Parliamentary and Health Service Ombudsman via their Member of Parliament.
It is essential that victims receive the best possible support to help them cope with and recover from what they have been through. We have a raft of arrangements in place which ensure that victims have access to a wide range of emotional, practical and specialist support determined by and tailored to their needs; wherever possible, this support is accessible locally. We are committed to ensuring that victims get the support they need and have protected the overall level of funding for victims across the spending review period, with over £95 million being provided in 2016-17 to fund crucial support services, including £7 million for the provision of support for victims of child sexual abuse, in recognition of increasing demand. Of the £95 million, we allocated over £67 million in grant funding to police and crime commissioners, who are using that funding to commission local services. The Justice Secretary has recently agreed to extend grant funding to all the nationally funded organisations for 2017-18 while we consider the current mixed model of commissioning national and local services.
We recognise the importance of training for professionals who work with victims. Organisations are responsible for ensuring the highest-quality training for their staff to ensure that victims receive the best possible service and support. However, we also recognise that more can be done. That is why we are working to place victims and witnesses at the heart of a justice system that works for everyone. We recently announced the national rollout of pre-trial cross-examination in 2017 to improve the support available for vulnerable witnesses. We are also investing close to £1 billion to reform and digitise our courts and tribunals. This will improve the experience for all court and tribunal users, including vulnerable victims and witnesses. Furthermore, we have committed to introduce further measures to strengthen the rights of victims of crime. It is important that we take the time to get this right, and we will announce our plans in due course.
Finally, the proposal for homicide reviews is also unnecessary. If the family of a victim has concerns about a closed homicide case, this can be looked at again under the Crown Prosecution Service’s recent guidance, Reviewing Previously Finalised Cases, to determine whether or not a review should be conducted.
Having had this opportunity to debate these important issues, and in the knowledge that the Government will be bringing forward proposals to strengthen the rights of victims, I ask the noble Baroness to withdraw her amendment.
Baroness Brinton
I thank the Minister for her reply, and the noble Lord, Lord Rosser, and my noble friend Lady Hamwee for their contributions. I am pleased that the Government will be looking at this but the difficulty is that much of what we have heard from the Minister does not address the soft issues that face the day-to-day running of any case in the criminal justice system, which are causing many of the problems. I wonder if the Minister would be prepared to meet over the next few weeks to talk through some of these issues. I see she is nodding. I am very grateful. With that, I beg leave to withdraw the amendment.
Baroness Chisholm of Owlpen
I am grateful to the noble Baroness, Lady Brinton, for raising the issue, and all noble Lords who have taken part.
The Government acknowledge that it is of great importance that ethnicity classifications of children and young people in the youth justice system are robust and accurate. Noble Lords will recall that the Prime Minister announced in August an audit of public services to reveal racial disparities and to help to end the injustices that many people experience. At present, youth custodial establishments and youth justice agencies, such as youth offending teams and the Youth Justice Board, are not required by legislation to use a particular system of ethnic monitoring; these amendments would change that.
In 2011, the National Offender Management Service adopted the 18+1 system on the centralised operational database used in prisons and young offender institutions for the management of offenders, following the change of classifications for ethnicity within the national census. However, it is the case that the new classification is not consistently used by secure children’s homes, secure training centres and youth offending teams. In principle, we agree with the aim of using the 18+1 classification, and the Government are ready to examine whether and how this could be done consistently across youth justice agencies and custodial establishments. I should point out, however, that such a change can be delivered through administrative means rather than through legislation. We feel that such an approach is preferable, given that to enshrine the 18+1 code in legislation would inhibit future flexibility in the event that the Office for National Statistics were to decide to change the 18+1 code system and introduce a new system of ethnicity classifications.
Although we support working towards consistency in terms of the data that we are recording, I hope that the noble Baroness would recognise that the universal adoption of the 18+1 code would require youth justice agencies to make a significant number of technical changes to a range of data systems, as the noble Lord, Lord Rosser, mentioned. This is because many existing IT and data collection systems are designed only to accommodate the 16+1 classification. For this reason, we believe the impact on agencies and custodial establishments must be explored and analysed and appropriate approaches identified.
I do not have costings at the moment, and will have to get back to the noble Lord on that point—although, interestingly enough, inspiration has appeared over my left shoulder. However, I am not sure that it is going to be that helpful. I have no information on the cost of the necessary IT changes. Clearly, they would need to be identified and factored into the work that would need to be done as youth justice agencies moved to the 18+1 system. I shall make inquiries as to whether further information is available and write to noble Lords. I am afraid that I do not have much more to add.
In conclusion, the noble Baroness has highlighted a valid issue. We support the broad aim of these amendments and will consider further the practical implications of embedding the 18+1 code system throughout the youth justice system. I hope that, on this basis, the noble Baroness would be content to withdraw her amendment.
Baroness Brinton
I thank all those who have contributed to this debate on this very important issue, including the noble Lord, Lord Alton, the noble Baroness, Lady Whitaker, the noble Baroness, Lady Bakewell of Hardington Mandeville, the noble Earl, Lord Attlee, and the noble Lord, Lord Rosser—and particularly the noble Lord, Lord Rosser, for highlighting in detail the issues that I felt that I did not have time to go into on what is happening with the IT system. I put it on record, too, that the noble Lord, Lord Ouseley, the noble Baroness, Lady Young of Old Scone, and the noble Lord, Lord Judd, wanted to speak in this debate but, because the date has moved on, were unable to be in their places.
I thank the Minister for her comments, although I was slightly startled by her opening statement about this new system of ethnicity. It is new only to the youth justice system. It is in use absolutely everywhere else. I am not intending to suggest that the Minister was saying anything else, but that is the whole problem—that there is a particular section of the criminal justice system that is not using the same databases as everybody else. We know from the example that the Minister quoted of the W3 Gypsy or Traveller code being added to P-NOMIS that the Irish chaplaincy has reported that many prisons are holding Traveller groups, appointing Traveller reps and holding Traveller history months—and, what is more, there is an increase in uptake of education by more than 10% among Traveller prisoners. That is a sign of real success. Surely young Gypsy and Traveller children who are in the system early on deserve that support the moment they come into the system. I hope that we can keep the doors open to discuss the matter as a matter of urgency. I beg leave to withdraw the amendment.
Lord Kennedy of Southwark
My Lords, Amendment 228C in the names of the noble Lords, Lord Wigley and Lord Ponsonby, and the noble Baroness, Lady Howe, seeks to insert a new clause into the Bill. As we have heard, its aim is to provide additional protection for victims or witnesses of a serious sexual offence, using the test of whether it is reasonable to assume that a disclosure of the person’s identity,
“would put the victim or witness at risk of further harm”.
It is right to include the rights of victims and witnesses in primary legislation where possible, and this is what the amendment seeks to do. Both victims and witnesses of serious offences can be very traumatised by what has happened to them or what they have witnessed. The disclosure of the name of the victim or witness to the person alleged to have committed the offence could put them at risk of further harm, as we have heard, or of fear of further harm. That, in itself, can cause additional stress and trauma for the victim or witness. Therefore, this amendment would place a specific duty on the police, when considering releasing the names of victims or witnesses to the accused person, to take into account the matters listed in new subsections (2) and (3) of the proposed new clause. That would be a sensible and welcome move, and I hope the noble Baroness will respond positively to the amendment.
I fully endorse the comments of all those who have spoken to the amendment. I was particularly surprised to hear my noble friends Lord Ponsonby and Lady Cohen say that the police have no idea what the policy is in this area. I am amazed by that. I certainly fully endorse the amendment.
Baroness Chisholm of Owlpen
My Lords, as the noble Lord, Lord Wigley, explained, this amendment seeks to grant victims or witnesses of sexual or violent crime anonymity in cases where it is reasonable to assume that disclosure would put them at risk of further harm. The noble Lord has indicated that he is particularly concerned with cases of so-called “stranger rape”.
I say from the outset that I agree wholeheartedly that the criminal justice system must support and protect victims and witnesses, particularly victims of sexual offences who are especially vulnerable. There are already a number of means whereby those at risk of further harm can be safeguarded and I will briefly itemise these in a moment but, before doing so, I must point to a central difficulty with the noble Lord’s amendment. The overarching principle of our criminal justice system is that the defendant must be given a fair trial. This is clearly stated in Article 6 of the European Convention on Human Rights. Fundamental to this is the right of the accused to be informed promptly, in a language which he understands, and in detail, of the nature and cause of the accusation against him. I am sure the noble Lord accepts that the accused cannot be expected to defend himself properly at trial if he does not even know who is accusing him of the alleged crime. This amendment would fundamentally undermine that cornerstone of our justice system.
That is not to say that there should not be crucial safeguards in place for victims and witnesses who have had the grave misfortune to experience violent or sexual crimes. As I have indicated, there are already multiple mechanisms the police and courts can employ to protect victims. Where necessary for the purpose of the investigation, the police can seek to detain the accused for up to 96 hours pending charge and seek to have him or her remanded in custody post-charge. If it is not possible to bring charges within the time limits on pre-charge detention, the suspect can be bailed subject to conditions which prohibit contact with the victim.
There are also established provisions in legislation for witness protection programmes and the provision of special measures during criminal proceedings; for example, a complainant can give evidence via a live link or behind a screen.
There is already provision for anonymity of complainants or witnesses, to be used as an exceptional measure of last practicable resort. A witness anonymity order can be granted by the court if it is satisfied that their identification would adversely affect the quality of evidence given by them, or their level of co-operation with the prosecution. The Director of Public Prosecution’s guidance on witness anonymity is clear that where the prosecution cannot present its case in a way that allows the defendant to defend themselves, it is under a duty to stop the case, no matter how serious the allegations may be. Hence, this must be very carefully considered when deciding whether to grant victim or witness anonymity—fair, equal and open justice for all must be the imperative.
While I have every sympathy for the noble Lord’s objective of protecting vulnerable victims and witnesses, I hope he will accept that the blanket approach provided for in his amendment is fundamentally at odds with our system of justice and the right of the accused to a fair trial. It is important to remember that the accused is just that: accused. He or she is not convicted, and is presumed innocent until proved guilty. This amendment arguably assumes guilt and undermines the protections and safeguards against miscarriages of justice of which this country is justly proud. Moreover, there are already a number of mechanisms available by which victims and witnesses can be supported through the criminal justice process. Given these points, I hope that the noble Lord will be content to withdraw his amendment.
Baroness Brinton
My Lords, one of the major concerns is that stalking is not used as a charge often enough. It is still too easy to charge with the offence of harassment, rather than stalking. We really need to make sure that the criminal justice system recognises and understands stalking—that was the law reform in 2012 that we worked hard to achieve. However, it is also important to recognise that some cases of stalking are consistently appalling and are also coercive behaviour.
The noble Lord, Lord Wigley, referred to the case of Emily Maitlis’s stalker who had previous convictions, including breaches of restraining orders in 2008, 2010, 2013, 2014 and earlier this year. I am sorry to say that that is not uncommon behaviour with stalkers and there needs to be the facility for the courts to apply for more serious custodial sentences where orders are consistently breached—not least the way that the stalking and coercive behaviour continues. One of the problems we have heard time and again from victims of domestic violence, stalking and coercive behaviour is the way other courts are used—the civil courts or family courts that do not recognise restraining orders that have been held elsewhere. We heard of information, which had not been passed to the family courts, of one former stalker who had been trying to get in front of his ex-partner through the family courts. It is very necessary to have this limited use but essential tool available for the judiciary.
Baroness Williams of Trafford
My Lords, the Government recognise and agree with the noble Lord’s desire to see the unduly lenient sentence scheme extended to enable reviews of sentences for a wider range of offences. The scheme is a valuable way of ensuring that sentences for serious crimes can be challenged when they are considered to be unduly lenient. The Government have a manifesto commitment to extend the scope of the scheme and on 4 October my right honourable friend the Home Secretary announced an extension to cover many terrorism offences—including those under Section 12 of the Terrorism Act 2000—that are covered by the noble Lord’s amendment. The extension can be done very straightforwardly by order.
The noble Lord’s amendment seeks to use primary legislation to require the Lord Chancellor to exercise the order-making power she has under Section 35 of the Criminal Justice Act 1988 to add offences to the scheme. This would add additional complexity to the legislative framework around the scheme and would curtail the Lord Chancellor’s discretion to amend the scheme as provided by the 1988 Act. Under the current provisions, the Lord Chancellor can amend the scope of the scheme by order and the Government can consider more broadly what offences or types of offences are most appropriate for inclusion at any time, as we have announced we will do with terrorism offences. With the reassurance that the Government intend to honour their manifesto commitment, I hope that the noble Lord will feel happy to withdraw his amendment.
Lord Wigley
My Lords, I am grateful to the Minister for that response and the recognition that there is a need to act on this. I ask for her confirmation that the statutory instrument system available to the Minister to take the action I referred to is applicable in all the cases listed in the amendment. If she wants to intervene, she can by all means do so.
Baroness Williams of Trafford
I was just going to ask whether I could confirm that in writing, because I would not want to give misinformation at the Dispatch Box.
Lord Wigley
That is fair enough. I accept that. I do not expect any Minister necessarily to carry all the details on their fingertips, but it would be helpful if we had a response on that before Report so that, if it is necessary to take this matter further on Report, there is an opportunity to do so.
The Minister heard the comments made by the noble Baronesses, Lady Howe of Idlicote and Lady Brinton, and by the noble Lord, Lord Ponsonby, on this matter. The feeling is generally shared that there needs to be action, and it is shared by the Government. The question is how it can be done and, perhaps more importantly, when it will be done. If these order-making facilities are available to the Minister, why have they not been used? If they are to be used, when will they be used? If there was a definitive statement in those terms we would be a little happier in withdrawing the amendment. There is an opportunity to come back on Report. I hope that between now and then these angles will be covered, either in correspondence or by other means, so we can be assured that action is not only promised but will be taken in a short timescale to put this right. On that basis, I beg leave to withdraw the amendment.
Baroness Finlay of Llandaff (CB)
My Lords, I thank the Minister and her officials for their time and help over the issue of this amendment. I declare my interest as independent chair of the National Mental Capacity Forum, and it is in that role that I have heard repeatedly about a problem relating to people who die when subject to deprivation of liberty safeguards. This new clause amends the meaning of state detention in Section 48 of the Coroners and Justice Act 2009 to correct the problem that I will now explain. I want to explain first how the amendment works and then some of the background as to why it really is needed.
The amendment removes the duty on coroners to conduct an inquest in all cases where the deceased had an authorisation for the deprivation of their liberty in place either under deprivation of liberty safeguards or a Court of Protection order or because the deprivation of liberty was otherwise authorised by the Mental Capacity Act 2005.
Subsections (2) and (3) of the new clause amend Section 48 of the Mental Capacity Act 2005 to provide a new definition of state detention. To do this, there is a new subsection inserted into the Coroners and Justice Act 2009 to provide that a person is not considered to be under state detention for the purposes of that Act when they are deprived of their liberty under the relevant sections of the Mental Capacity Act 2005. This covers the deprivation of liberty safeguards, which can be from a Court of Protection order, from a DoLS authorisation or, where the deprivation of liberty was urgently required, pending a decision by the Court of Protection on the authority to restrict the person’s liberty. The second amendment makes a consequential change to the Long Title of the Bill.
Let me explain why this new clause is needed. After the Cheshire West judgment, the number of DoLS applications has risen enormously. This was the subject of a debate in this House on 16 March 2015. Prior to the Cheshire West judgment, in 2012-13, there were 11,887 DoLS. In 2014-15, 122,775 individuals had an active DoLS application either granted or in process. That is more than a tenfold increase in the number of DoLS. Some of these people were seriously ill and some died. In 2015, there were 7,183 such deaths. The vast majority of those were expected, anticipated and accepted by the family and those responsible for care. These were not deaths that came as a surprise to anyone. When that family was then told that the death must be referred to the coroner for an inquest they were often shocked and worried, as if there were some sort of accusation against them or others. They could not progress with their grieving and arrange the funeral, as they then had to wait for the inquest.
In 2015 the average time for inquests was 20 weeks, although coroners tried very hard to ensure that deaths under DoLS, when clearly of natural causes, were dealt with more quickly. To put the numbers in context, of the more than 7,000 deaths under DoLS, 6,760—or 94%—were found at inquests to be natural.
The distress to the bereaved has become a common cause of complaint to the Department of Health. In addition, it is not a good use of coroners, who should be investigating deaths where there is any suspicion whatever. Indeed, I remind the House that the Ministry of Justice’s Guide to Coroner Services states:
“Registrars of births and deaths, doctors or the police must report deaths to a coroner in certain circumstances. These include where it appears that: no doctor saw the deceased during his or her last illness; although a doctor attended the deceased during the last illness, the doctor is not able or available, for any reason, to certify the death; the cause of death is unknown; the death occurred during an operation or before recovery from the effects of an anaesthetic; the death occurred at work or was due to industrial disease or poisoning; the death was sudden and unexplained; the death was unnatural”—
so that includes all suspected suicides—
“the death was due to violence or neglect; the death was in other suspicious circumstances; or the death occurred in prison, police custody or another type of state detention”.
The Ministry of Justice document goes on to say:
“If you believe that a death of this kind has not been reported to the coroner, you may report it yourself”.
In other words, relatives who have any concern can themselves report to the coroner. It goes on to say:
“You should do this as soon as possible and before the funeral. The coroner will then inform you of the action he or she proposes to take”.
Nothing in the amendment removes the obligations to inform the coroner if there is any suspicion whatever around a death. The amendment is to remove the mandatory requirement to hold an inquest where the deceased was deprived of their liberty under all relevant sections of the Mental Capacity Act—or, indeed, where the deprivation of liberty was to provide care to them.
Under the Mental Capacity Act a person who lacks capacity may be detained in circumstances which amount to deprivation of liberty. No detention amounting to deprivation of liberty may be permitted without lawful authorisation, because it would otherwise constitute false imprisonment. The Mental Capacity Act provide safeguards known as DoLS and Court of Protection orders to be made depriving a person of liberty for their care. It also allows for the deprivation of liberty of a person for the purpose of giving life-sustaining treatment only where a decision of the court is pending.
I want to address a concern that has been raised with me in relation to anyone who dies under the care of a mental health trust. A suicide or an unexpected or a sudden death must always be referred to the coroner, but I would expect there to be a routine review of any death in a mental health trust or similar organisation. Such a review should be available to the Care Quality Commission inspectors and I would expect the inspectors to ask about the number of deaths that had occurred in people subject to a deprivation of liberty safeguard application or authorisation. They should look in depth at the quality of the review of care that had taken place. Additionally, anyone who has concerns at any stage should raise those concerns, whether through whistleblowing or through the complaints process.
Complaints and how they are handled also form part of CQC inspections and I believe that such searching questions are far more likely to detect poor care than relying on a referral to the coroner, who is only looking at one instance and cannot see how care is delivered across a whole organisation. The recent incidents of poor care of those with learning difficulties that have come to light are certainly alerting inspectors that they must be more rigorous in their inquiries than before. To summarise, I hope that this amendment will correct an anomaly that has caused more than 6,500 bereaved families unnecessary distress in the last year alone. I beg to move.
Baroness Chisholm of Owlpen
My Lords, I am grateful to the noble Baroness, Lady Finlay, for this amendment. The Government are pleased to be able to offer our support for this amendment, which will minimise the stress on bereaved families at a very difficult time for them. The amendment will fully address the concerns that no family, having watched and comforted their loved one through his or her final days, should then be unnecessarily subject to the anxiety and confusion of having their death investigated by a coroner. I thank the noble Baroness for raising the profile of this important issue and for her valuable input, which the Government very much welcome and support. I commend her amendment to the Committee.
Baroness Williams of Trafford
My Lords, I am grateful to the noble Lord, Lord Wigley, for his explanation of these amendments, which call for a review of the criminal law in relation to digital crime. The Government of course share the noble Lord’s concern about online crime, especially where new technologies, which the noble Lord, Lord Ponsonby referred to, are used to abuse, harass or intimidate people.
Amendment 230 seeks to codify the existing criminal law in relation to digital and cybercrime into a single statute. I share the noble Lord’s concerns about online crime, but I do not believe a single statute for digital and cybercrime would be helpful or a good use of resources. Indeed, I am not persuaded that the existing criminal law in this area is defective. As the Committee will be aware, any action that is illegal when committed offline is also illegal if committed online. Current legislation, some of which was passed before the digital age, has shown itself to be flexible and capable of catching and punishing offenders whether their crimes are committed by digital means or otherwise. The majority of the statutes and offences listed in Amendment 230 relate to offences that can be carried out by non-digital and digital means.
Producing a single statute, containing,
“powers to prosecute individuals who may have been involved in the commission of digital crime”,
as Amendment 230 suggests, would add further complications to the criminal law by creating new overlapping offences, reproducing and duplicating many existing laws. Furthermore, many existing offences would need to be retained for non-digital offending, so we would end up with parallel offences for crimes committed online and offline.
However, while I am not convinced of the need for a review as suggested here, I assure the noble Lord that where specific gaps in legislation are identified, or where new behaviours that should be criminalised are brought to light, we will continue to take action. The Government’s record has shown that we will and do legislate when we need to, such as passing the Serious Crime Act 2016, which further strengthened the Computer Misuse Act 1990.
Amendment 231 would require the Home Office to ensure funding is made available to every police force to train their officers in how to investigate digital crime and abuse. Mainstream cybercrime training is already available to police officers and while I have sympathy with the underlying objective of the noble Lord’s amendment, I do not believe that legislation is necessary to require police forces to provide such training. Furthermore, subsection (2) of the proposed new clause, requiring all police forces to record complaints of digital crime and abuse and their outcomes, is unnecessary as I can assure the noble Lord that work in this area is already under way.
From 2015, police-recorded crime data collection also includes a mandatory online flag that allows police forces to record online instances of crimes, including stalking and harassment, whether the crime took place wholly online or just had an online element to it. The Office for National Statistics published these data, for the first time, as experimental statistics in July. We welcome the continuing improvement in the statistics on reported fraud and cybercrime that better reflect the extent of the problem. Having an accurate picture is vital to informing the most appropriate response to these crimes. It is important that police forces be able to respond to changing technologies, and we recognise the need to support forces to invest in the capabilities they need. However, the training of police officers is an operational matter and critically, it is the police themselves who can best determine what their training needs are.
Amendment 231A seeks to create an array of new offences relating to digital surveillance and monitoring, presumably to address issues such as online harassment and stalking. The Government are absolutely clear that abusive and threatening behaviour is totally unacceptable in any form, online or offline. Existing legislation in the form of the Protection from Harassment Act 1997 includes the offences of stalking, harassment and putting people in fear of violence, and applies to offences committed online.
In 2015-16, almost 13,000 prosecutions were commenced for harassment and stalking offences—a rise of 864 offences from 2014-15 and the highest volume ever recorded. The Government have strengthened the law on stalking: an insidious crime that can involve a wide range of behaviours, which may include the misuse of digital equipment, spyware and social media. There is no exhaustive list of behaviours relating to stalking, but recognising the ongoing pattern of fixated, obsessive behaviour is really important in tackling stalking.
New stalking offences were introduced in 2012. They are stopping people living in fear and preventing escalation to more serious violence. In 2015-16, more than 1,100 prosecutions were commenced under the new stalking legislation. Our recent consultation on the introduction of a new civil stalking protection order demonstrates our determination to support victims of stalking at an earlier stage and address the behaviour of perpetrators before it becomes entrenched. This draws on our successful roll-out of other civil orders, such as FGM protection orders, domestic violence protection orders and sexual risk orders.
I am sorry to have gone on somewhat, but I hope the noble Lord recognises that the Government keep the criminal law in this area under review and that police forces are alive to the need to have the capabilities to tackle such crime. I hope the noble Lord will feel happy to withdraw his amendment.
Lord Wigley
My Lords, I am grateful to the noble Lord, Lord Ponsonby, for his support. I know the interest that the noble Baroness, Lady Howe, has taken in these matters. She had to leave before this debate but she has been one of the leading people in questions of cybercrime and associated matters.
At this time of night, I hate to be fractious with the Minister but I am afraid that what came over was complacency. There is an avalanche of cybercrime and associated dangers flooding the country. The police and other authorities do not have adequate resources, training or back-up to handle it. Unless action is taken to a much greater extent than it is now, this will overwhelm us. I urge the Minister, although she cannot agree with my amendment, to take back to the department the very serious worry that is represented by these amendments, to see what can be done to speed up action and provide more resources to enable those who have the responsibility of bringing perpetrators to justice to do that and not feel that they are fighting a losing battle. However, I beg leave to withdraw the amendment.
Baroness Chisholm of Owlpen
My Lords, these are technical and consequential amendments to the Extent clause and I beg to move.
“( ) Section (Anonymity of victims of forced marriage: Northern Ireland) extends to Northern Ireland only.”
“( ) sections (Posthumous pardons for convictions etc of certain abolished offences), (Other pardons for convictions etc of certain abolished offences) and (Sections (Posthumous pardons for convictions etc of certain abolished offences) and (Other pardons for convictions etc of certain abolished offences): supplementary);”
“( ) section (Anonymity of victims of forced marriage: Northern Ireland);”
Wednesday 30th November 2016
(7 years, 4 months ago)
Lords ChamberRead Hansard Text Amendment Paper: HL Bill 72-I(Rev)(a) Amendments for Report, supplementary to the revised marshalled list (PDF, 62KB) - (30 Nov 2016)
17:29 - Division on Amendment 48 - Ayes: 246 / Noes: 196 - Amendment 48 agreed.
18:36 - Division on Amendment 106 - Ayes: 179 / Noes: 184 - Amendment 106 disagreed.
This text is a record of ministerial contributions to a debate held as part of the Policing and Crime Act 2017 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
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Baroness Chisholm of Owlpen (Con)
My Lords, Amendment 1, moved by the noble Lord, Lord Paddick, seeks to limit the duty to collaborate so that police bodies would be required to collaborate with fire and rescue services only where they share coterminous boundaries. I see no reason why collaboration should be limited by geographical borders. The Government require there to be coterminous boundaries where a change of governance for fire is proposed, as the core approach of those provisions is to introduce greater democratic accountability by giving a directly elected individual responsibility for both services, with a clear mandate from the electorate in their area. However, collaboration between two bodies does not invoke such issues. Further, the duty, as currently drafted, would ensure that areas where the services are not coterminous, such as Devon and Cornwall, can still maximise the benefits outside a governance change if there is no appetite to adjust boundaries locally.
As the noble Lord, Lord Paddick, mentioned, existing examples of collaborative working between police forces show the benefits that closer working can provide, regardless of geographical proximity. For instance, Cheshire Police collaborates with Northamptonshire and Nottingham police forces on back-office functions, including payroll, accounting, purchasing and HR, via the Multi-Force Shared Service. West Midlands Police led the largest ever police and emergency service collaborative procurement exercise, which includes 26 territorial forces, two non-territorial forces and five fire and rescue services. Together, the services will buy 3,000 vehicles over the next two years, with forecasted savings of up to £7 million over the period of the contracts.
Government Amendments 2 and 3 respond to points raised in Committee by the noble Lord, Lord Rosser, the noble and learned Lord, Lord Hope of Craighead, and the noble Baroness, Lady Hamwee, in respect of collaboration agreements. Amendment 2 explicitly provides that no relevant emergency service will be required to enter into a collaboration agreement where it would have an adverse effect on public safety. This has been the Government’s policy intention since conception of the Bill. Indeed, as I set out in Committee, the Government believe that the impact on public safety will be assessed by an emergency service whenever considering the effect of a proposed collaboration on its efficiency or effectiveness. None the less, for the avoidance of any doubt, this amendment makes it explicit in the Bill that no relevant emergency service will be required to enter into a collaboration agreement that would negatively impact public safety.
Amendment 3 clarifies the process for varying a collaboration agreement. We agree that parties to an agreement should also be able to straightforwardly vary terms of an existing agreement, where all parties are in agreement. Parties will also still be able to replace an existing agreement with a new agreement, again with the consent of the parties concerned.
I hope that, having heard my explanation, the noble Lord will be content to support the government amendments in this group and withdraw Amendment 1.
Lord Paddick
In my opening remarks, I welcomed the government amendments and suggested that we would support them. The examples that the noble Baroness gave of collaboration between police forces were to do with requisition and back-office functions. The real issues arise where there is collaboration on operational issues—for example, the sharing of buildings, and particularly where the Government want to encourage police and crime commissioners to take over the running of fire and rescue authorities, as we will hear later this afternoon. That is where the coterminosity issue is most stark. Therefore, while I accept that for requisition and back-office functions the forces do not need to be geographically co-located, real problems can arise on the operational front in these circumstances, and if the PCC has to take over. However, I will consider carefully what the noble Baroness has said and, at this stage, beg leave to withdraw the amendment.
“(8) A collaboration agreement may be—(a) varied with the agreement of all of the parties to the agreement, or(b) replaced by a subsequent collaboration agreement.”
Lord Paddick
My Lords, I support the amendments proposed by the noble Lord, Lord Rosser. The government amendments in this group do not go far enough—for example, in publishing the results of any consultation in full and on the process of the consultation itself, which we believe simply cannot be left in the hands of a police and crime commissioner. We also oppose in principle that police and crime commissioners should be allowed to take over fire and rescue authorities, for many of the reasons that the noble Lord, Lord Rosser, gave this afternoon and in Committee, particularly, as we dealt with in Amendment 1, the issue around coterminosity. We also share the concerns about the employment implications of merging police services and fire and rescue services in a single employer model under a police and crime commissioner.
My noble friend Lady Hamwee and I have Amendment 19 in this group. The amendment would require that the Secretary of State cannot make an order to provide for the police and crime commissioner to be the fire and rescue authority under new Section 4A unless this has been agreed by all relevant local authorities. This amendment is supported by the Local Government Association.
In Committee, the Minister seemed to want to have her cake and eat it—to use a topical phrase. When these issues were discussed, she said at one point that,
“the Government are not mandating the transfer of fire and rescue authorities to police and crime commissioners. These provisions are locally enabling and acknowledge that local leaders are best placed to assess what would work … in their areas”.
But then later she said:
“Where there is clear merit in a transfer taking place that could benefit local communities, it would be wrong to allow vested local interests to stand in the way”.—[Official Report, 14/9/16; col. 1520.]
Local authority councillors are democratically elected to represent local people. One of their responsibilities is the fire and rescue service. Police and crime commissioners have been democratically elected to oversee policing, based on a manifesto that covers only policing. I believe that the Minister was right to say that local leaders are best placed to assess what would work best in their areas, and wrong to describe as “vested local interests” the democratically elected local authority councillors who do not agree with their police and crime commissioner about the PCC taking over local fire and rescue services. Our amendment is in line with the Minister’s initial comment in Committee, rather than her later comment.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, the Government came into office with a clear manifesto commitment to enable fire and police services to work more closely together and to develop the role of our elected and accountable police and crime commissioners. The provisions in Part 1 of the Bill, including those in Clause 6, give legislative effect to that commitment.
It is clear that better joint working can strengthen our emergency services, deliver significant savings to taxpayers and, most importantly, enable the emergency services to better protect the public. While there are many excellent examples of collaboration between the emergency services across the country—I draw noble Lords’ attention to the excellent overview of such collaboration recently published by the Emergency Services Collaboration Working Group—the picture of collaboration remains patchy and more needs to be done to make collaborative working the norm. The directly accountable leadership of PCCs can play a critical role in this by securing better commissioning and delivery of emergency services at a local level. This is not about a merger or a police takeover; nor is it an erosion of the brand identity of the fire service. By overseeing both services, PCCs can strengthen the services by maximising the opportunities for innovative collaboration between policing and fire, and ensure that best practice is shared.
It has been said many times before, but I should stress again, that the provisions in Clause 6 providing for PCCs to take on responsibility for fire and rescue are totally locally enabling. A one-size-fits-all approach would clearly be inappropriate and it should be up to local communities to have a say in how their services are provided. PCCs will be able to take on responsibility for fire and rescue only where a strong local case is made that it is in the best interests of either efficiency, economy or effectiveness, on the one hand, or public safety, on the other, and where they have consulted the relevant local authorities and the public. Removing the provisions from the Bill that enable PCCs to take on governance of fire and rescue denies PCCs the opportunity to drive forward local reform. In a number of areas—for example, Essex, Northamptonshire and Hertfordshire—we know that PCCs are already working closely with their fire and rescue authorities to consider the local case.
Requiring there to be local agreement before a transfer of governance can take place, as proposed by the noble Lord, Lord Paddick, would introduce unnecessary and unjustifiable barriers that serve to inhibit positive collaboration taking place at a local level. If there are valid reasons for a local authority’s opposition to a PCC’s proposal, these will be identified in the independent assessment process and the Home Secretary will approve a transfer only where a case has been made that it is in the interests of local communities. It would not be right to let parochial local interests—to take up what the noble Lord said—get in the way of reform where there is a clear benefit to the public.
In Committee, I was clear that the Government’s intention is for the process by which a PCC brings forward a business case for the transfer of responsibility for fire to be as robust and transparent as possible. It is important that this process commands the confidence of all parties and that local views are properly taken into account. To provide even greater assurances on this point, the Government have put forward a number of amendments which strengthen the consultation and transparency duties on PCCs. These amendments respond to a number of helpful and important points raised by noble Lords during the earlier stages of the Bill.
First, Amendment 9 will replace the existing duty on PCCs to seek the views of people in their police area with a duty that requires them to consult them. This strengthening of the duty makes explicit the Government’s expectation that PCCs will take local views into account when developing their business case and responds to concerns that the existing duty to seek views is not strong enough. In addition, Amendment 10 places an explicit duty on PCCs to consult with persons representing the views of employees and of members of the police force who may be affected by their proposal. I would expect this to include trade unions and staff associations such as the FBU, Unison and the Police Federation.
Amendment 16 will additionally require the PCC to submit a summary of the responses to such consultation to the Home Secretary to inform her decision on the proposal where the PCC does not have local agreement. It remains appropriate that it is for the PCC to determine the manner in which they should consult local authorities, the public and employee representatives, and Amendment 13 makes that clear. In the interests of transparency, Amendments 11, 15 and 17 will also require the PCC to publish the outcomes of their local consultation and the Secretary of State to publish the independent assessment that she secures of a PCC’s business case, where they do not have the agreement of the relevant local councils.
The noble Lord, Lord Rosser, tabled further amendments to these provisions, which seek to further prescribe the process by which a PCC consults on his or her proposal and the requirements on the Home Secretary to publish an independent assessment. As I have already set out, I am very keen, like the noble Lord, to make sure that the process by which a PCC seeks to take on the responsibilities of a fire and rescue authority is as robust and transparent as possible. However, I hope the noble Lord would agree that many of the points that he has raised are properly a matter for guidance rather than for primary legislation. The circumstances of each local consultation will be different, so we should not unduly fetter local flexibility to put in place proportionate arrangements that recognise the nature of each local business case. The amendments, while well intentioned, risk cutting across the local accountability of PCCs and risk Whitehall dictating matters that should rightly be left to local leaders.
In response to the noble Lord’s important concerns, however, I can be very clear about the Government’s expectation that the PCC’s consultation will be undertaken in an appropriate manner and be of an appropriate duration to allow local people to express their views and for the PCC to have them taken into account. Further, we would expect the PCC’s response to the consultation to cover the matters that the noble Lord has listed in Amendment 12. The Home Office will work closely with the Association of Police and Crime Commissioners and the Association of Police and Crime Chief Executives to ensure that their guidance on the development of PCC business cases incorporates these points. However, I should stress again that it is for the PCC to determine locally how to achieve such outcomes based on the nature of the case, its complexity and its understanding of the best ways to engage with local communities.
Furthermore, government Amendment 17 will ensure that the independent assessment is published as soon as is practicable after the Home Secretary has made a determination. In practice, this will ensure that all parties have sufficient time to consider the findings before an order is made. Adding in what amounts to a statutory one-month pause in the process in every case again strikes me as unduly complicating the procedure for making these orders and risks increasing local uncertainty as the process is drawn out. I might add that having received the independent assessment, there is no assumption that the Home Secretary would necessarily approve a PCC’s proposal. She will base her decision on the evidence presented. I hope that noble Lords will agree that the government amendments set out a clear expectation that there should be a comprehensive consultation, that the process will be transparent, and that local views will be properly taken into account.
I also indicated in Committee that I would give further consideration to the points raised by the noble Lord, Lord Rosser, regarding public safety. As I set out during that debate, public safety is a core function of the emergency services and we consider that any assessment of the impact of a proposed transfer of governance on effectiveness would include an assessment of its impact on public safety. None the less, I am content to make provision on the face of the Bill that puts this matter beyond any doubt. Government Amendments 5, 6 and 35 explicitly provide that the Secretary of State may not make an order transferring responsibility for fire and rescue to a PCC or implementing the single employer model under either a PCC or a combined authority mayor where it would adversely affect public safety.
I shall deal with the other government amendments in this group. As the Bill is currently drafted, when a PCC implements the single employer model and so delegates fire functions to a single chief officer, schemes that may be made by the Secretary of State transferring property, rights and liabilities from an FRA or the PCC-style FRA to that chief officer are one way only. On the terms and conditions for police and fire and rescue personnel, when staff are transferred from an FRA to the PCC, and under the single employer model from the PCC to the chief officer, they would be covered by the principles of the Cabinet Office code of practice entitled Statement of Practice of Staff Transfers in the Public Sector, taking into account the considerations associated with bringing two workforces closer together. For example, we propose that under the single employer model, complaints, conduct and death and serious injury matters for both the police and the fire service are treated on a consistent basis. PCCs will need to consider how to best reflect a more closely aligned workforce locally when preparing their business case, including consultation with the relevant unions where necessary, as I said previously.
On the question whether the proposals will take firefighters, emergency fire control staff and fire support staff out of national pay and conditions, pensions and other arrangements, the terms and conditions of firefighters and control staff are negotiated on a UK-wide basis via the National Joint Council for Local Authority Fire and Rescue Services. The NJC has no statutory basis and it is for PCC FRAs to decide whether to remain members. PCC-style FRAs will also have the same ability as FRAs to negotiate changes to terms and conditions at local level, while remaining members of the NJC, but PCCs would need to approach the NJC if they wished to become members.
Lord Paddick
Before the Minister sits down, could she clarify something? She described the amendments proposed by the noble Lord, Lord Rosser, as unnecessary interference in what should be a locally determined matter—the nature of the consultation process. However, when it comes to deciding whether the police and crime commissioner should take over the fire and rescue authority, against the wishes of the democratically elected local councillors, that is not seen as an unnecessary interference in local decisions.
Baroness Williams of Trafford
I hope I have outlined clearly that the Home Secretary would take a view on this issue and on all representations that have been received when making her decision.
Lord Rosser
I, likewise, ask the Minister for some clarification of what she has just said. Am I right in saying that under the single employer model and the harmonising of conditions—if there is to be such—we could end up with different rates of pay, different conditions of service and different disciplinary procedures for firefighters and members of police forces in different PCC areas: that there could no longer be national rates and national conditions of service? That is what I have read into the Minister’s response, because it depends on whether a PCC decides to continue to have conditions of employment determined by the national bargaining body, or whether the police and crime commissioner who has become the fire and rescue authority decides he or she wants to bargain with their own employees in the fire and rescue service and, presumably, the police service, if it is harmonising conditions. Is that a fair interpretation of what the Minister said?
Baroness Williams of Trafford
Before Third Reading I will write to the noble Lord and to all noble Lords who have taken part in the debate, and distribute that response to the House. What I said was the terms and conditions of firefighters and the control staff are negotiated on a UK-wide basis via the National Joint Council, but the NJC has no statutory basis and it is for the PCC-style FRAs to decide whether to remain members. I will write to the noble Lord before Third Reading to outline more detail on what that might look like.
Lord Rosser
I take it that the noble Baroness is going to write, and I am very grateful to her for saying that, if necessary, that means we could come back to this issue on Third Reading. I also ask, genuinely for clarification, and I am sorry I did not pick up the Minister’s response on Amendments 12, 14 and 18 first time, but on Amendment 12, which sets out a number of requirements relating to consultation over what documents should be published and why the benefits could not be achieved through other forms of collaboration, did I hear correctly the Minister say that those requirements would be included in guidance? I do not know whether that will be guidance or regulations.
Lord Rosser
So what I have laid down in Amendment 12 will be included in guidance.
Baroness Williams of Trafford
I agreed that the matters that the noble Lord listed would be covered in guidance.
Lord Rosser
As I understood it, the Minister did not extend that to the items I covered in Amendments 14 and 18. I am seeking to clarify, not to pursue the argument again, that that statement of what would be covered in guidance relates to what I have in Amendment 12. As I understood what the Minister said, that did not extend to Amendments 14 and 18. I am simply trying to clarify what was said.
Baroness Williams of Trafford
I certainly gave that commitment on Amendment 12. I now have all my pages completely out of kilter, but I do not think I gave that commitment on—was it Amendment 14?
Baroness Williams of Trafford
Amendment 18 is a matter for the Home Secretary.
Lord Rosser
Am I also right—I am genuinely seeking clarification—that what the Minister helpfully said on Amendment 12 did not apply to Amendment 14?
Baroness Williams of Trafford
Unfortunately, I cannot find Amendment 14 here, but we have undertaken to work with the Association of PCCs to address in guidance the issues raised by the noble Lord in Amendment 12. Amendment 18 is a matter for the Home Secretary.
Lord Rosser
I would be more than happy if the Minister wishes to write to me to confirm. I am genuinely seeking clarification, rather than trying to reopen the debate.
Baroness Williams of Trafford
The issues raised in Amendments 12 and 14 will be addressed in guidance.
Lord Rosser
So there is an issue of a period over which consultation shall last. The other matters will be covered in guidance. Is that guidance that will go through this House in the form of regulations, or is this guidance that we will not see until it is published?
Baroness Williams of Trafford
I think that this may be one area of detail that I could discuss and correspond with the noble Lord over between now and Third Reading. He and I can meet before Third Reading.
Lord Rosser
That is a helpful response and I take it in the spirit in which it was said. I hope that the Minister will accept, bearing in mind that she has indicated—I do not want to make things difficult—that it appears to apply to Amendments 12 and 14. To put it bluntly, if that does not prove to be the case we can come back at Third Reading.
Baroness Williams of Trafford
Yes, and I hope that it would never be interpreted that I will not follow through on something I say at the Dispatch Box, because I most certainly will meet the noble Lord and discuss the finer detail of the guidance before Third Reading.
Lord Rosser
I assure the Minister that she is about the last person that I would ever suggest would appear at the Dispatch Box and make a statement that she did not mean or which was misleading.
In light of what has been said, I beg leave to withdraw the amendment.
“(5A) The Secretary of State may not make an order under this section in a case within subsection (5)(a) if the Secretary of State thinks that the order would have an adverse effect on public safety.”
“(d) publish, in such manner as the commissioner thinks appropriate, the commissioner’s response to the representations made or views expressed in response to those consultations.”
“(2) Each consultation under sub-paragraph (1) is to be carried out in such manner as the relevant police and crime commissioner thinks appropriate.”
“(4) The Secretary of State must publish the independent assessment—(a) as soon as is reasonably practicable after making a determination in response to the proposal, and(b) in such manner as the Secretary of State thinks appropriate.”
Baroness Chisholm of Owlpen
My Lords, Clause 7 enables police and crime commissioners to request to be represented on fire and rescue authorities within their police areas where they do not take responsibility for the governance of the fire and rescue service. This is what we have described as the representation model. Where a fire and rescue authority accepts such a request, we have set out that PCCs will be treated as if they were a member of the authority for the purposes of bringing agenda items, receiving papers and so on, and have full voting rights to ensure that they can take part in the business of the fire and rescue authority in a meaningful and effective way.
The noble Lord’s amendments seek to remove these provisions, which would be a great shame, as we want the PCC’s representation to be meaningful and on an equal footing with existing members of the FRA. To deny PCCs the ability to vote would reduce their scope for influence and I fear that opportunities for fostering greater collaboration would be missed. As my noble friend Lady Williams explained in Committee, in response to a group of similar amendments, we want police and crime commissioners and fire and rescue authorities to consider the representation model as a viable option for promoting greater collaboration between the two services. These amendments would hinder that.
The amendments would also remove the necessity for a fire and rescue authority to publish its decision and reasoning in considering the PCC’s request for membership. I am concerned that to do so would remove transparency and accountability from the process. These provisions enable PCCs to seek representation where they wish to do so, while respecting local fire governance arrangements. The final decision on representation rests with the fire and rescue authority, although we fully expect that in the majority of instances the fire and rescue authority would accept the PCC’s request and, if it did not, its reasons should be made clear to both the PCC and the public. This ensures that the process is fully transparent and open to effective scrutiny.
The provisions in the Bill allow for the representation model to be considered as an opportunity to foster greater collaboration outside of pursuing other governance models. I hope I have been able to persuade the noble Lord of the merits of the approach taken in the Bill and that he will be content to withdraw his amendment.
Lord Paddick
I am grateful to the Minister. I am still struggling to understand why a police and crime commissioner, who is elected on the basis of a manifesto to do with policing, should have full voting rights on a fire and rescue authority. I am not sure that “It would be a great shame” is a particularly powerful argument against my proposal. The Minister said that the police and crime commissioner should be on an equal footing with other members of the fire and rescue authority but did not actually say why. Yes, the final decision rests with the fire and rescue authority but, given the fact that this is in legislation, it would be difficult, certainly following the Minister’s remarks, for fire and rescue authorities to resist a move by a police and crime commissioner to take those voting rights. Greater collaboration surely does not necessarily depend on the police and crime commissioner having a vote on the fire and rescue authority. None the less, I beg leave to withdraw the amendment.
“(2A) Before making the request the mayor must publish, in such manner as the mayor thinks appropriate, the mayor’s response to the representations made or views expressed in response to any consultations on the proposal.”
Baroness Williams of Trafford
My Lords, the government amendments in this group respond to some very well-made points in Committee about the provisions in the Bill establishing the office of the London fire commissioner.
Amendments 37, 156, 195 and 205 will ensure that no locally elected councillor will have to resign their council position if they are appointed as deputy mayor for fire or deputy mayor for policing and crime in London. In Committee the noble Lord, Lord Harris, made a compelling case for this change with reference to two London borough councillors who had had to resign their council positions when appointed to the position of deputy mayor for police and crime because, when appointed, they were treated as an employee of the Greater London Authority and therefore became politically restricted. I have listened to the case made by the noble Lord and agree that no locally elected councillor should be placed in a situation where they would have to give up their seat to become the deputy mayor for fire or the deputy mayor for policing and crime.
Amendments 38 to 40 are drafting amendments which correct erroneous references to the assembly’s fire and emergency “panel” rather than “committee”. I am again grateful to the noble Lord, Lord Harris, for spotting them. Finally, Amendments 41 and 42 respond to one tabled in Committee by the noble Baroness, Lady Hamwee, relating to the functions of the fire and emergency committee. These amendments will ensure that there is appropriate scrutiny of the actions and decisions of the deputy mayor for fire, and allow the committee to investigate and prepare reports about any other matters the assembly considers to be of importance to fire and rescue services in London. I beg to move.
Lord Harris of Haringey (Lab)
My Lords, I thank the Minister for responding to the points I made in Committee and introducing these amendments. I suspect that this is a refinement and clarification of the law which is of interest to a tiny handful of citizens of the United Kingdom. None the less, the anomaly created was slightly strange.
However, at the risk of prolonging this only a moment, I seek a little clarification. The amendments, as I understand them, would enable a deputy mayor in these circumstances to be an elected councillor. Does that also remove the restriction on those individuals placed by the Local Government Officers (Political Restrictions) Regulations 1990, which among other things do not allow such a person to hold office in a political party or to canvass for one? It might be a boon to anyone in this position if they were allowed to be elected and stand for election but not to canvass on their own behalf.
It is difficult to disentangle what are three interlocking Acts of Parliament, not all of which seem in the public references to have been updated by subsequent legislation. It seems to me that the Local Government Officers (Political Restrictions) Regulations 1990 might still apply to these individuals, even though the specific issue of election to a local authority has been removed. Having said that, I am sure that the Minister will be able to clarify it entirely to my satisfaction and I am very grateful to her and her officials for responding to this allegedly minor issue.
Baroness Williams of Trafford
I hope it is not going to be another letter because, from my dim and distant memory of local government officers’ political restrictions, I recall that up to a certain level of officer, you are free to canvass and engage in political activity. You are also free to stand for elected office in an authority other than your own. I think I may have to write, now that the noble Lord is heading for the door, on the matter of elected office for local authority officials because that will be looked at in the regulations.
Lord Paddick
My Lords, I thank the Minister for listening to the points raised by the noble Lord, Lord Harris of Haringey, and to the issues raised by my noble friend Lady Hamwee. She cannot be in her place today, but she has asked me to pass on her thanks for the amendments that the Government have brought forward in this group.
“Fire Safety inspections
(1) The Regulatory Reform (Fire Safety) Order 2005 (S.I. 2005/1541) is amended as follows.(2) In article 2 (interpretation), in the definition of “fire inspector”—(a) after “inspector”” insert “, in relation to Wales,”;(b) for “section 28” substitute “section 28(1)”.(3) In article 27 (powers of inspectors), after paragraph (4) insert—“(5) This article applies to a person authorised by the Secretary of State under article 25(1)(e) in relation to premises in England as it applies to an inspector; and article 32(2)(d) to (f), with the necessary modifications, applies accordingly.”(4) In article 28 (exercise on behalf of fire inspectors etc of their powers by officers of fire brigades)—(a) in paragraph (1)—(i) omit “, or any other person authorised by the Secretary of State under article 25(e),”;(ii) for “and (3)” substitute “to (4)”;(b) after paragraph (1) insert—“(1A) The powers conferred by article 27 on an authorised person (by virtue of paragraph (5) of that article) are also exercisable by an employee of a fire and rescue authority in England when authorised in writing by such an authorised person for the purpose of reporting to him or her on any matter falling within the authorised person’s functions under this Order; and articles 27(2) to (4) and 32(2)(d) to (f), with the necessary modifications, apply accordingly.”;(c) in paragraph (2), for “, or other person authorised by the Secretary of State,” substitute “or authorised person”;(d) after paragraph (2) insert—“(3) In this article, “authorised person” means a person authorised by the Secretary of State under article 25(1)(e) in relation to premises in England.””
Baroness Chisholm of Owlpen
My Lords, Amendments 44, 45 and 105 are essentially technical amendments to ensure that the strengthened powers of an inspector of Her Majesty’s Inspectorate of Constabulary and the powers of an inspector of fire and rescue authorities in England, as provided for in the Bill, work as intended.
Both inspectors have powers to obtain information and to access premises of the relevant organisation which they are inspecting and of persons providing services for that organisation. The amendments ensure that any person providing services or carrying out any of the activities of either organisation by virtue of an enactment, including where there is no contractual agreement, come within the inspection framework. This would, for example, cover police or ambulance staff who are undertaking fire functions as part of a local agreement—an approach which is growing across many police forces and fire and rescue authorities. These amendments will ensure that both police and English fire and rescue inspectors have sufficient powers covering all individuals who are fulfilling an activity which needs to be inspected. The powers to access premises and require information are long-standing and widely used, with established safeguards that will apply to these amendments.
Amendment 43 concerns the enforcement of fire safety in Crown-owned or Crown-occupied premises for the purpose of ensuring compliance with the Regulatory Reform (Fire Safety) Order 2005. Presently, the 2005 order defines an enforcement authority with reference to inspectors under Section 28 of the Fire and Rescue Services Act 2004. In the light of the fire inspection provisions in the Bill, it is now desirable to break the link between the inspection of fire and rescue authorities by an English inspector appointed under the amended Section 28 of the 2004 Act and enforcement of fire safety in Crown-owned and Crown-occupied premises under the 2005 order.
We do not consider it appropriate for those charged with responsibility for inspecting the efficiency and effectiveness of fire and rescue authorities in England under Section 28 of the 2004 Act, as amended, to have any powers in relation to enforcing fire safety provisions in Crown-owned or Crown-occupied premises for the purpose of ensuring compliance with the 2005 order. The skill set is entirely different, with fire safety enforcement officers requiring a high level of technical competence in building construction and fire safety management.
However, to deliver this objective we need to amend the 2005 order to ensure that any persons authorised, under Article 25(1)(e) of the 2005 order, by the Secretary of State to enforce the provisions of the 2005 order in Crown-owned and Crown-occupied premises are able to access the powers of enforcement that are necessary to enable them to perform their function effectively.
Without this amendment, any persons subsequently authorised to enforce the provisions in Crown-owned or Crown-occupied premises who were not also appointed as English fire inspectors or assistant inspectors would not, in law, be able to perform their function. I beg to move.
“(e) any other person who is, by virtue of any enactment, carrying out any of the activities of a fire and rescue authority in England.”
Lord Kennedy of Southwark (Lab)
My Lords, as the noble Lord, Lord Paddick, said, these matters were discussed in Committee. I am very supportive of Amendments 46 and 47. As we have heard, designated bodies will get the power to make super-complaints to Her Majesty’s Chief Inspector of Constabulary, and these complaints can be made where, in the opinion of the designated body, a feature of policing may be harming the public and needs looking at. It is based on a system that works in the private sector and this is the first time it will be used in the public sector. Only designated bodies will be able to make super-complaints, and the process for designating these bodies will be set out in regulations.
When the noble Baroness, Lady Williams of Trafford, responds to this debate, it would be helpful if she said something about the timescale for the consultation processes, and when she expects these regulations to be laid before Parliament and come into force. I should also say that I am happy for the negative procedure to be used in respect of the regulations; perhaps the noble Baroness could bring that fact to the attention of the noble Lord, Lord Hyde of Ashton, who is of the opinion that I would never agree to the negative procedure being used for regulations in this House.
The proposals in this section of the Bill are a welcome move and will be a positive benefit to organisations and individuals that have legitimate concerns to raise. We are supportive of them and of these amendments.
Baroness Williams of Trafford
My Lords, I am grateful to the noble Lord, Lord Paddick, for the opportunity to address the misunderstanding over Amendment 47, which was previously tabled in Committee. However, I am again going to have to disappoint the noble Lord as the Government cannot support either of these amendments. The Bill provides for the delegation of the ability to authorise those who can be designated bodies for the purposes of the new super-complaints system.
I welcome the noble Lord’s suggestions of who should perform this function but I do not agree that this task can be performed by bodies that might themselves want to raise super-complaints, or by multiple agencies. For the system to have legitimacy, we need to avoid a conflict of interest in this role. That is why the Bill creates this distinct role, as we do not consider it appropriate that HM Inspectorate of Constabulary designates the bodies that can come to it with super-complaints.
All three bodies put forward by the noble Lord could potentially add significant value as designated bodies, should they wish to apply. It would be a shame if, for example, Citizens Advice were precluded from raising issues through the super-complaints system. In the interests of a smooth and speedy process, I suggest that this role should be undertaken by an individual or single body, not by a committee.
The critical point here is that the criteria for designation are clear and unambiguous so that authorisation is a simple and objective process. That is why we will consult widely on the criteria in due course, and I encourage all those who have an interest to feed in their views. The noble Lord, Lord Kennedy, asked about timing: it will be in the coming months.
Having consulted to establish clear criteria, we believe it is unnecessary to subsequently consult on any list of bodies deemed to have met the criteria, as required by the noble Lord’s Amendment 46. This risks slowing the whole system down, delaying designation and further delaying the point at which bodies can submit super-complaints to HMIC.
I reiterate the Government’s commitment to consulting widely on the criteria. As part of that process, we would welcome the input of noble Lords on bodies or organisations that may be suitable for designation or for the role as the authorised person. I hope the noble Lord, having considered the Government’s arguments, will feel free to withdraw his amendment.
Lord Paddick
I am grateful to the noble Lord, Lord Kennedy, for his support for these amendments and for the explanation given by the Minister. Obviously I am disappointed that she felt she could not support them. Clearly there would have to be a distinction between the role of authorised persons and the role of designated bodies. The suggestions we made were on the basis that these organisations had vast knowledge of the voluntary bodies and third party organisations that work in their areas. There would have to be a distinction if they were appointed as authorised persons, and they would not be able to be designated bodies themselves, but that is something that the Government could make a decision on.
I am grateful for the reassurance around the consultation that will take place over the criteria that will be used in order to decide which bodies should be designated. On that basis, I beg leave to withdraw the amendment.
Lord Rosser
My Lords, I will not detain the House for too long. As has been said, the amendment would require the Prime Minister to commission an independent inquiry into the operation of the police complaints system in respect of allegations of corrupt relationships between the police and newspaper organisations. It also provides that the inquiry would proceed only once the Attorney-General has determined that the inquiry, if conducted effectively and fairly, would not be likely to prejudice any ongoing relevant criminal investigations or court proceedings cases.
As has already been pointed out, in November 2012 the then Prime Minister reminded the victims of press intrusion that when he set up the Leveson inquiry he had also said that there would be a second stage to investigate wrongdoing in the press and the police, and that the Government remained committed to the inquiry as it was first established. However, real doubts about the Government’s willingness to honour that promise have arisen—hence this amendment. Those doubts have been increased by the Government’s recent decision to consult, including on whether to stick by the promises previously given by the then Prime Minister that there would be a Leveson stage 2.
Police and press relations is a significant area still to be addressed. Briefings by the police in the immediate aftermath of the Hillsborough tragedy had a profound adverse impact on the families who had lost loved ones, and on the 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. The media were also manipulated in the case of the Shrewsbury 24, and part 1 of the Leveson inquiry found unhealthy links between senior Met police officers and newspaper executives—links which led to resignations. There is also, on occasion, an issue around the nature of relationships between the police and the press at a more local level, where sometimes prior information appears to have been provided about a particular person to be arrested or a particular search carried out.
Honouring a repeated undertaking given by a Government through a Prime Minister, to victims in particular, and with all-party support, is the issue that this amendment seeks to address. If, having heard the Government’s response, the noble Baroness, Lady O’Neill, decides to seek the opinion of the House, we shall be voting in favour of the amendment.
Baroness Williams of Trafford
My Lords, I thank the noble Baroness, Lady O’Neill, for explaining the purpose behind her amendment. I also thank the noble Lords, Lord Paddick and Lord Blair, who spoke of their own experiences around this issue. As the noble Baroness explained, Amendment 48 would require the Prime Minister to proceed with what is colloquially referred to as the Leveson 2 inquiry into the relationships between the police and the media.
It is of course vital that the police take seriously their role, both in maintaining their own reputation and integrity and in protecting the community that they are meant to serve. However, given the extent of the criminal investigations related to this issue that have taken place since the Leveson inquiry was established—as the noble Lord, Lord Blair, referred to —and given the implementation of the recommendations following part 1, including reforms within the police and the press, the Government must now consider whether proceeding with part 2 of the inquiry is appropriate, proportionate and in the public interest. The Government are therefore seeking the views of the public and interested parties, including those who have been the victims of press abuse, through the public consultation that commenced on 1 November. The consultation seeks views on whether proceeding with part 2 of the Leveson inquiry is still appropriate, proportionate and in the public interest. As the last of the relevant criminal cases has recently concluded, the Government believe that it is now time to take stock and seek views on the various options. Submissions received from this consultation will consequently help to inform the Government’s thinking. The consultation closes on 10 January. Given the ongoing consultation, I respectfully suggest to the noble Baroness that this is not an appropriate matter for further legislation.
The Government will reach a view on the way forward having regard to the views expressed in response to the consultation. If we conclude that the inquiry should go ahead in its current or a modified form, the Inquiries Act already provides the mechanism for this, so again this amendment is unnecessary.
Noble Lords will also want to take into consideration the fact that part 1 of the Leveson inquiry cost £5.4 million. We can expect part 2 of the inquiry, should it go ahead with its current terms of reference, to cost a similar amount, so this amendment has very real financial implications, as my noble friend Lord Hailsham said.
My noble friend Lord Deben talked about three issues—the promise, the necessity, and the power of the press and its closeness to the constabulary. In terms of the promise, the Government delivered the cross-party agreement by establishing the Press Recognition Panel by royal charter, and legislating for the incentives in the Crime and Courts Act 2013. The time is now right to consult further on these specific areas of part 2 of the inquiry and Section 40, given the time that has elapsed since the Leveson inquiry was set up and the changes that have taken place. It would not be fair to the victims of press intrusion to take a decision based on facts and a situation from five years ago without reflecting on the position today, to make sure that we get the right result and that there are the right protections. We will need to see what comes out of the consultation, as I have said, but ultimately, it is for the Government to take decisions on both matters.
Parliament will clearly need to be involved if the proposed way forward were to repeal Section 40, but we need to wait and see the responses to the consultation. On part 2 of the inquiry, we will of course consult the chair of the inquiry, Sir Brian Leveson, before any decision is made on the future of the process.
In conclusion—
Lord Clinton-Davis
Will the Minister indicate how long she envisages the inquiry will take and how many witnesses will come forward?
Baroness Williams of Trafford
The consultation finishes on 10 January. In terms of anything going forward, we will of course be informed and guided by the consultation and I would not at this point wish to put a timescale on the inquiry.
Baroness O'Neill of Bengarve
I thank the Minister for her reply. She suggests that we have yet to consider whether it is appropriate, proportionate or in the public interest to proceed with this amendment and that we should await the outcome of the consultation. That outcome is nicely timed to be rather too late for this legislation, where the proposed new clause fits very well. It has nothing to do with the commencement of Section 40 of the other legislation, so that one we can set aside. But this one is really a matter of honour for the Government. These were commitments made in public and there were real and identifiable victims, and while of course cost is an issue and the Government would perhaps wish to think about how to contain them, surely it is useful that some of the criminal cases that have been tried have actually done the work of finding out what happened in certain cases. The cost issue is not the same as it might have seemed in advance because some of that has already been sorted. I wish to test the opinion of the House.
Baroness Chisholm of Owlpen
My Lords, 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. Clause 27 inserts new Part 2B and new Schedule 3A into the Police Reform Act 2002. This will provide the Independent Police Complaints Commission with a new power to carry out independent whistleblowing investigations. It gives police officers and staff a new route to raise their concerns directly with the IPCC. As a result, it will give police officers and staff a greater level of assurance around discretion and objectivity by strengthening the protections for whistleblowers, including anonymity.
Amendments 49 and 50 respond to points raised in Committee by the noble Lords, Lord Paddick and Lord Kennedy. The amendments will provide greater clarity about when a whistleblowing investigation can be considered by the IPCC. The amendments modify the definition of a whistleblower in two ways. The first modification is to enable whistleblowers to raise concerns about matters which occurred before they joined the police. The second modification will remove the need for the IPCC to consider whether to start a new whistleblowing investigation where it is already conducting an investigation under Part 2 of the Police Reform Act 2002, or where there is an ongoing whistleblowing investigation.
There will also be no requirement for the IPCC to consider whether to open a new investigation when the concern raised is already being dealt with as a super-complaint. These modifications will provide further clarity on the definition of a whistleblower, ensuring that the new Part 2B provisions will not interfere with the progress of these existing investigations. This will also support the IPCC to effectively implement its duties under the new provisions.
Amendments 51, 55, 63, 64 and 69 are technical amendments to ensure that, as with concerns which involve conduct matters, where the IPCC identifies a concern as relating to a “death or serious injury” matter as defined in Part 2 of the 2002 Act, the matter must be handled under that part. In such circumstances, the whistleblower’s identity will continue to be protected by modifications to Schedule 3 to the 2002 Act specified in regulations. I beg to move.
Lord Paddick
My Lords, I am very grateful to the Minister and to the Government for listening to the concerns we raised around whistleblowing in Committee. We certainly support the government amendments in this group.
“(3A) For the purposes of this Part, a person is a “whistle-blower” if—(a) the person is, or was at any time, under the direction and control of a chief officer of police,(b) the person raises a concern that is about a police force or a person serving with the police,(c) the matter to which the concern relates is not—(i) about the conditions of service of persons serving with the police, or(ii) a matter that is, or could be, the subject of a complaint by the person under Part 2, and (d) at the time the Commission first becomes aware of the concern, the matter to which it relates is not—(i) under investigation under the direction of the Commission in accordance with paragraph 18 of Schedule 3,(ii) under investigation by the Commission in accordance with paragraph 19 of that Schedule,(iii) being dealt with as a complaint under section 29A under regulations under section 29C (regulations about super-complaints), or(iv) under investigation under this Part.”
Baroness Chisholm of Owlpen
My Lords, I hope that this, too, will be good news for your Lordships. This Government’s policing reforms have strengthened the role of the Independent Police Complaints Commission to ensure that it can fulfil its crucial function as a strong police watchdog. The Bill will further enhance the IPCC’s powers and independence. It is important that the organisation can carry out its enhanced role efficiently and effectively and the Bill therefore also provides for the reform of the IPCC’s corporate structure and for it to be renamed the Office for Police Conduct.
In Committee the noble Lord, Lord Rosser, tabled an amendment to include “Independent” in the new name. A number of noble Lords spoke in support of that amendment, highlighting the value of the word in securing public confidence that the organisation is not part of the police. My noble friend Lady Williams of Trafford agreed to reflect on the points that noble Lords made so well in the debate.
The Government remain of the view that the reformed IPCC needs to command public trust, and demonstrate its impartiality and independence, through the quality of its work. The IPCC is independent, and the reformed organisation will continue to be independent. However, the Government also recognise the argument that although the legislation provides for the organisation’s independence from the police, it is important to signal this in its title as well. These amendments therefore provide for “Independent” to be included in the reformed IPCC’s new name, with the effect that it will be called the Independent Office for Police Conduct. I beg to move.
Lord Paddick
My Lords, Amendment 59 is in my name and that of my noble friend Lady Hamwee. I, too, thank the Government for the change that they have made regarding the word “Independent”. This amendment tries to ensure that that is not simply a cosmetic change and that the new body will be even more independent.
The amendment would change the current position where a member of the Independent Police Complaints Commission cannot be someone who holds or who has held office as a constable in any part of the United Kingdom or someone who has worked under the direction or control of a chief officer or equivalent office in Scotland or Northern Ireland. The current legislation specifically excludes anyone making decisions on casework or investigations, for obvious reasons. The public are not reassured about the independence of the police complaints investigation body if those making such decisions are either former police officers or those who have worked for the police.
The amendment would prevent other members of the new body being serving or former police officers or those who formerly worked for the police. In Committee the Minister said:
“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”.—[Official Report, 26/10/16; col. 258.]
There is very little trust or confidence in the IPCC among many who bring complaints against the police and many others, including me, because we do not believe it is independent enough. How will having members of the board of the new body—the rebranded body—who are former employees of the police service improve that trust and confidence? It certainly does not do it for me. Although the Minister says that the director-general will be solely accountable for all casework and investigation decisions, in practice he will not be making all those decisions—unless he works 24 hours a day, seven days a week. Even if the board members are there to ensure good governance and financial management, their decisions could be crucial to the effective investigation of serious complaints by deciding the way the rebranded organisation operates, its structure and so forth, and the way resources are apportioned.
The Government keep saying how important it is to bring people with different skills and experience into the police service. If the police service is in such desperate need of new blood, because the Government believe it does not have enough talent of its own, why are the Government so keen for those from the police service to be part of the new body that will be investigating the most serious complaints against the police? Barring those previously employed by the police service from holding crucial positions within the rebranded Office for Police Conduct—with or without “Independent” stuck on the front of it—would be a small price to pay for providing reassurance that it is truly independent. I beg to move.
Baroness Williams of Trafford
My Lords, the Independent Office for Police Conduct will have a vital role in securing and maintaining public confidence in the reformed police complaints system. That is why the Bill provides for an absolute bar on the new single executive head of the organisation—the director-general —ever having worked for the police. The Government do not believe it is appropriate for the Bill to impose further statutory restrictions on membership of the office beyond the post of director-general.
The corporate structure of the IOPC is radically different from the existing commission model. The new board—the office—will have a majority of independent non-executive members, and its functions are set out clearly in the Bill. These include ensuring good corporate governance and financial management. Importantly, the board’s functions do not include responsibility for investigations and casework decisions, for which the director-general alone will be accountable. This is in contrast to the current position, where commissioners undertake such investigative functions.
If a highly suitable individual applies for a non-executive role, perhaps as a finance expert, it would be wrong to reject them automatically simply because many years previously they worked for a short period as a police civilian, perhaps in a relatively junior role. To ensure that the organisation can deliver high-quality and timely investigations—the predominant driver of confidence—the director-general will wish to ensure that the organisation has a diverse mix of people. As part of this, the director-general may wish to employ a number of people who have valuable policing experience, as the IPCC does now.
Under the new model, investigations and casework decisions will be undertaken by employees, all of whom will be working in a single line management chain reporting to the director-general. The Government fully expect the director-general to decide that certain employee roles, including some senior operational and public-facing positions, should not be filled by those with a police background, but those decisions should be a matter for the director-general.
We recognise that confidence is also driven by the perception of the organisation as impartial and independent from the police. That is why the Bill provides the director-general with an explicit power to determine the functions and roles that are not open to former police officers. This means that the director- general can go further than the current legislation, which requires only that a minimum of six people cannot have worked for the police—namely, the chair and a minimum of five other members of the commission. The Bill also strengthens existing arrangements in relation to transparency by setting out a requirement on the director-general to publish a statement of policy on the exercise of these particular powers of recruitment.
Baroness Jolly (LD)
My Lords, the purpose of this amendment is to enable service men and women to make complaints about their service police to the IPCC rather than to the service police—the Royal Military Police, the Royal Air Force Police or the Royal Navy Police. I submitted this amendment after a really interesting and valuable meeting that I had with the Minister and her officials, which helped my thinking and allows me to ask for clarification about the service police and the IPCC. I am grateful to her for her time.
The Minister and I discussed the issues of the competence, culture and trust of or in the service police and the capacity of the IPCC to take over some of its functions. I remind noble Lords that Her Majesty’s Inspectorate of Constabulary—HMIC—recommended that oversight of the Royal Military Police, the Royal Air Force Police and the Royal Navy Police should be brought within the competence of the IPCC. I understand that, at the moment, the IPCC is undergoing some change and is not able or willing to look at meeting the amendment’s desired outcome in the immediate future. I also understand that the service police are aware of their shortcomings and are working to address them.
Can the Minister give some indication of the Government’s current thinking about the future, and about which milestones might indicate progress? If there are any recent pronouncements from the MoD on this issue, that would also be helpful. Our service men and women deserve a process for complaints against their service police that is modern, run professionally, fit for purpose and future-proofed. I hope that the Minister can help, and I beg to move.
Baroness Chisholm of Owlpen
My Lords, I would like to reassure the noble Baroness, Lady Jolly, that the Government and the service police are fully supportive of the need for independent oversight of the service police. There is already statutory independent oversight of the complaints made against the service police, where those complaints are made through the service complaints process. That process is overseen by the independent Service Complaints Ombudsman and is available to all serving personnel. Veterans and other civilians are not able to use that process and rely solely on the service police complaints procedures, which do not currently have independent oversight. However, I should mention that, since the recommendation in Her Majesty’s Inspectorate of Constabulary’s 2014 report, the service police forces have adopted a tri-service investigations protocol, which supplements their existing complaints procedure and provides for another force to investigate certain complaints where there could be a conflict of interest or allegations of criminal activity.
There is clearly further work to do on a mechanism for introducing independent oversight into complaints made against the service police. There are a number of options for doing this, including oversight by an existing body or setting up a separate new body to provide it, but a number of logistical and jurisdictional issues need to be addressed. For example, incidents requiring investigation might arise in any part of the UK or indeed anywhere in the world, including dangerous operational theatres, and clearly we would want our oversight arrangements to cater for those occasions.
The Government are therefore considering interim arrangements that will introduce independent oversight of complaints against the service police from veterans and non-service personnel, this being the gap which currently exists. We expect to be able to announce further information about this shortly. The Government remain committed to implementing a single mechanism that will provide for the independent oversight of all complaints against the service police. This aspiration is shared by each of the service police provost marshals, and we intend to update the House on progress in the first half of next year.
On a broader note, I should mention that each of the service police forces has done much in recent years to forge a culture within its organisation that aims to promote faith in its integrity and professionalism within the Armed Forces, military community and beyond. They have each implemented codes of conduct that highlight the expectations placed upon service police personnel both on and off duty. These are akin to those produced by the College of Policing and support the single service’s values and standards and leadership codes, which apply to all service personnel. In addition, all members of the service police are now required to swear an oath which declares that they will always act with fairness, integrity, diligence and impartiality. The Government are determined to ensure that, in both the short term and the long term, there can be independent scrutiny of any instances where those values are called into question. On this basis, I ask the noble Baroness to withdraw her amendment.
Baroness Jolly
My Lords, I thank the Minister for the clarification and for the meeting. I look forward to recommendations coming out very soon, as she said. In the meantime, I am happy to beg leave to withdraw the amendment.
(iv) any other person who is, by virtue of any enactment, carrying out any of the activities of a police force,”
Lord Paddick
My Lords, I start by agreeing wholeheartedly with the noble Lord, Lord Blair, that this seems too broad in what it could allow. As the noble Viscount, Lord Hailsham, says, it could result in volunteers being equipped with revolvers. I also have the same concerns that the noble and learned Lord, Lord Hope of Craighead, has about a self-defence weapon being used in an aggressive as opposed to a defensive way.
We support the amendment proposed by the noble Lord, Lord Kennedy of Southwark. My noble friend Lady Hamwee and I have Amendment 107 in the group, which says that Clause 38 should not stand part of the Bill and seeks to achieve the same end as Amendment 106, which is to prevent police community support officer volunteers from being provided with CS spray or any other firearm that the Secretary of State might authorise by regulation in the future. My understanding, contrary to that of the noble Viscount, Lord Hailsham, is that special constables can be equipped with CS spray at the moment, and will continue to be, so I do not think that the changes in the Bill will have the effect he suggests.
The only remarks that I would add to those already made by noble Lords are that police volunteers carry out excellent work and are a valuable addition to the police family. However, with reservations already being expressed about whether paid police community support officers should be using force, and in the absence of any paid PCSO having been authorised to use CS spray by any chief constable anywhere in the United Kingdom—if I remember the debate in Committee correctly—changing the law to allow chief constables to give CS spray to volunteer PCSOs seems both unnecessary and unreasonable.
Secondly, as alluded to by the noble Viscount, Lord Hailsham, if chief constables need additional volunteers who can exercise the use of force, including with CS spray, because they do not have the resources any more to pay full-time police officers, whatever the rights and wrongs of that, there is a route open to them, which is to recruit more special constables, who have all the powers of a regular police officer and who are paid only expenses. We on these Benches will support the Labour amendment on this issue.
Baroness Williams of Trafford
My Lords, these amendments return us to an issue that was debated at length in both the other place and in Committee in this House, namely whether it is ever right for designated members of police staff, or the new category of designated volunteers, to carry CS or PAVA sprays for defensive purposes—I stress the point that this is for defensive purposes.
I should point out to the House that, although most of our debates have been about whether it is right for volunteers to carry defensive sprays, Amendment 106 as drafted would also prevent chief officers equipping their existing paid staff, such as PCSOs, with such sprays. I assume this is not intention of the noble Lord, Lord Kennedy, but it would be helpful if he could clarify this when winding up.
When we debated this issue in Committee, a number of noble Lords expressed the view that the use of force is somehow incompatible with the PCSO role, and even more so for volunteers. For example, the noble Lord, Lord Paddick, said that the appropriate route for an individual who wishes,
“to volunteer to get involved in the use of force in the exercise of police powers”,
is,
“to become a special constable”.—[Official Report, 26/10/16; col. 267.]
I think he said that again today. However, it is important to put on record that, given the long-standing tradition of policing by consent, I would hope that no one who wishes to help with the policing of their community, as a police officer or a member of staff, whether paid or as a volunteer, does so with a view to using force against their fellow citizens. There are of course myriad roles which police officers, staff and volunteers perform regularly that do not involve the use of force.
Indeed, as we have discussed, the primary role of a PCSO across England and Wales is to engage with members of the public and to carry out low-level interventions such as dealing with anti-social behaviour. However, as was discussed in the House of Commons earlier this month, it is a sad fact of life that both police officers and PCSOs are assaulted and injured on duty. For example, in 2015-16, 270 assaults were reported by PCSOs in England and Wales, and those figures do not include the British Transport Police. It should be noted that this figure includes only assaults that officers report to their health and safety or human resource teams. In some cases, officers will choose not to report cases, as it is usually not compulsory to do so. Therefore, in reality, this figure is likely to be much higher.
We must therefore ensure that chief police officers are able to use their operational experience to make judgments as to the necessary level of defensive equipment and self-defence training that they make available to their officers and PCSOs. The only other option for chief police officers would be to withdraw their PCSOs from areas where there was a threat to their safety, potentially making disorder more likely if members of the community were unable to engage with a familiar face in uniform.
The situation is in essence no different from that of special constables, who are themselves volunteers. They have all the powers of a police officer, and a significant number are trained in the use of defensive sprays. I also point out that a small proportion of specials are trained in the use of public order tactics, so the use of force by appropriately trained police volunteers is not a new idea.
The noble Lord, Lord Paddick, has tabled Amendment 107, which would remove Clause 38 from the Bill. The change to Section 54 of the Firearms Act 1968 made by Clause 38(2) is consequential on the provisions in Clause 37 enabling designated volunteers to be given access to defensive sprays. It therefore follows that if Amendment 106 were agreed to, Clause 38(2) would be unnecessary. However, Clause 38(3) deals with a separate point, making it explicit that special constables are members of a police force for the purposes of the Firearms Act 1968 and therefore do not require a certificate or authorisation under the 1968 Act when equipped with a defensive spray. Accordingly, the amendment goes wider than I believe the noble Lord intends.
A question was asked about the most appropriate route for an individual who wishes to perform front-line policing to join the specials. I think I have already addressed that point but I add that there might be reasons why an individual who wants to volunteer to help to make his or her community safer chooses not to join the specials. These reforms will enable those who wish to help to keep their communities safe to do so even where they are unable to meet the requirements for being a special—the time commitment, for example, or they may be in an occupation where they are prevented from being a special, such as being a Border Force officer, but still have skills or experience that could be of value.
My noble friend Lord Hailsham asked about the order-making power in Clause 37(6) enabling the Home Secretary to make regulations that would allow police staff and volunteers to use a firearm. The power is primarily intended as a form of future-proofing. Should, for example, a new form of defensive spray that uses substances other than CS come on to the market—
Viscount Hailsham
I do not want to press my noble friend too hard on this as she may want to indulge in correspondence on the matter. However, the Explanatory Notes state, with reference to sub-paragraphs (b) and (c):
“This enables the issue of appropriate self-defence devices in future, once such a device has been tested and authorised”.
What is there in the Bill that confines the weapon to be authorised to a self-defensive device? It is open-ended, so it includes offensive weapons.
Baroness Williams of Trafford
My noble friend is right that it would theoretically be possible to use the power to enable a firearm in that way. However, the power is subject to the affirmative procedure, as he has said, so it would require the unlikely agreement of the Home Secretary, both Houses of Parliament and at least one chief constable to decide that a staff member or volunteer should be given a gun. I leave it to my noble friend, with his vast experience, to judge whether that would be likely to happen. I take the point that he was making but I want to point out the hoops that would have to be jumped through for that to be achieved.
The noble Lord, Lord Blair, talked about the order-making power for defensive weapons. There is no such thing in the Firearms Act as a “defensive weapon”. It is not the nature of the weapon that is important but how it is used; a baton or a truncheon could be used offensively while a pistol could be used defensively. The consultation was clear that only police officers should use pistols or Tasers, and we think the Bill delivers that.
I shall finish with a quote from Chief Constable David Jones, the national policing lead for Citizens in Policing. He says:
“This is a very positive development … The proposals will open up new opportunities for people to use statutory powers who would like to be part of the volunteering police family but who are unable to commit to the rigorous and intensive selection and training requirements associated with the special constabulary. The proposals will empower Chief Constables to have a much more flexible resource platform … Chief Officers are best positioned to decide how to police their local area most effectively through the empowerment of their workforce, through their understanding and knowledge of the needs of their local communities”.
As I have said at previous stages of the Bill, no chief officer has yet made a decision to designate their staff with the power to carry and use a defensive spray. However, we believe that if a chief officer, using their professional judgment and experience, were to reach the view that it was necessary to issue such sprays to their PCSOs, after they have been well-trained in their use, they should be able to do so irrespective of whether those PCSOs are employees of the force or volunteers. On that basis, I invite the noble Lord, Lord Kennedy, to withdraw his amendment and perhaps to address the question that I first put to him.
Lord Kennedy of Southwark
My Lords, I thank all noble Lords who have spoken in this debate. A number of points have been raised. I say to the noble Viscount, Lord Hailsham, that my concern all along has been the placing of these weapons in the hands of people without sufficient training.
I agree very much with the points made by the noble Lord, Lord Blair. We have to be very careful about the extension of these powers. As we have heard, so far no chief constable has empowered their present PCSOs to have these powers. The power is there already for PCSOs to be designated but no one has decided to do that yet.
The Government have not made a convincing case for the further extension of these powers. As the noble Lord, Lord Paddick, said, this is a broad power that we are now taking on board. I concur with his remarks about the fantastic contribution made by volunteers to the police service.
In response to the Minister, Clause 37 grants the extension of powers to police civilian staff and police volunteers. This extension is to those other staff who are not PCSOs but are volunteers or other designated staff. I do not see why, if they have not yet been tested on designated PCSOs, they should be extended at this stage. On that basis, I wish to test the opinion of the House.
Lord Paddick
My Lords, the amendment in my name and that of my noble friend Lady Hamwee asks that Clause 46 not stand part of the Bill. Clause 46 gives power to the Secretary of State to make regulations that specify the ranks that may be held by police officers other than chief officers of police.
We have been here before—in 1993—with the Sheehy review into police responsibilities and rewards. Among other recommendations of that review was the abolition of the ranks of chief inspector and chief superintendent. After an expensive process of offering chief inspectors early retirement, that decision was reversed, leaving the police service with a deficit of suitably qualified and experienced chief inspectors. One consequence was that overnight—or, perhaps I should say, over the weekend—I went from being a uniformed chief inspector with no experience as a detective to being a detective chief inspector in charge of CID at Notting Hill.
Another recommendation of that report was to abolish the rank of chief superintendent. Instead, in the Metropolitan Police, we had grade 1 and grade 2 superintendents, one in charge and the other a deputy. They were both called “superintendent”, they both wore the same badge of rank, but one was more senior than the other. Such nonsense did not last long, and the rank of chief superintendent was subsequently reinstated. More recently, some police forces have decided significantly to reduce or not appoint officers to particular ranks, as suits the local circumstances of each force.
History has shown us, and present practice continues to demonstrate, that we do not need the Secretary of State to designate which ranks may be held by members of police forces; it is far better to allow chief constables to decide for themselves which ranks they need and which they do not. By all means let the Secretary of State or the College of Policing issue guidance to chief officers as to factors they should take into account when deciding which ranks to have. But, please, let us not make the same, very expensive—in terms of both money and loss of experience—mistake again. I beg to move.
Baroness Williams of Trafford
My Lords, policing needs a greater say in how it structures its own organisations. It was the College of Policing’s leadership review that initially recommended a review of rank structure. It recognised that the rank structure as set out in the Police Act 1996 and the Police Reform and Social Responsibility Act 2011 was not serving the needs of all forces. To support this police-led reform, Clause 46 will give the college the power to recommend regulations setting out what the rank structure should be. Chief Constable Francis Habgood, who is leading the review of the rank structure, is working with the National Police Chiefs’ Council to develop proposals that will work across all forces.
Having some commonality across forces is essential. The public have the right to expect the same high standards of service from every force and there needs to be clarity for the public around the exercise of significant police powers that can impact on civil liberties. Indeed, the Police and Criminal Evidence Act 1984, and other legislation, expressly requires certain decisions to be taken by an officer of a specified minimum rank, very often an inspector or superintendent. I note that the amendment of the noble Lord, Lord Paddick, on pre-charge anonymity specified that an application to a court to waive anonymity has to be made by an officer of at least the rank of inspector. Such key protections for the citizen cannot operate meaningfully without a national rank structure. Furthermore, the Government are committed to a national pay framework for police officers, where again there must be consistency across forces. A consistent rank structure also makes interforce collaboration easier, which is a critical consideration given the many complex challenges facing modern policing that require forces to work together.
This is not to say that every force must have officers of every rank. The Metropolitan Police has, for example, recently announced that it is to do away with the rank of chief inspector and it is open to other forces to follow suit. As I said in Committee, the Government make no presumption about the rank structure that may be proposed by the College of Policing in future. I believe that we should let the work of Chief Constable Francis Habgood continue and not constrain police leaders in how forces should be organised. Parliament will have the opportunity to examine the proposals for changes to the rank structure once the College of Policing has made its recommendations, as these will need to be set out in regulations which will be subject to the affirmative procedure.
I agree that decisions are best taken locally wherever possible, but there are circumstances where we need a clear national framework. This is one such case, albeit one where the reforms provided for in Clause 46 will afford chief officers a measure of local flexibility. With those words, I hope that the noble Lord feels content to withdraw his amendment.
Lord Paddick
My Lords, I thank the Minister for that explanation which, unless I have got completely the wrong end of the stick, seems to me to be completely contradictory. The noble Baroness says that there needs to be commonality across police forces, yet then gives the example of how the Metropolitan police service is not going to appoint anybody to the rank of chief inspector.
The noble Baroness says that it is necessary to have a clear national framework—we have a clear national framework in existing legislation, which specifies the ranks. So I really do not see why we need the Secretary of State to be given the power to make regulations about what ranks there should and should not be. For example, were the Secretary of State, by regulation, to say that there must be officers of the rank of chief inspector, where would that leave the Metropolitan Police if it has decided not to have any chief inspectors, as it apparently has?
The noble Baroness also talked about how it was important for the public for there to be commonality across all forces. If the Commissioner of the Met can decide not to appoint somebody to a rank that the Home Secretary has, in regulations, said that there should be, there will not be commonality across the country. I accept what the noble Baroness says in terms of the need for a national structure—which currently exists. What does not need to be done is for that system to be changed; what is needed is for chief constables to be given guidance as to which ranks they need, which will vary from force to force. The Metropolitan Police, in its chief officer ranks, for example, has a completely different rank structure to other forces. Yet, the Government do not seem to want to change that. Commanders do not exist anywhere other than in the Metropolitan Police and the City of London Police. Deputy assistant commissioners do not exist in any other force. So there is not commonality now and there is no move by the Government to enforce commonality across the country when it comes to chief officer ranks.
I find the Minister’s explanation incomprehensible. However, at this stage, I beg leave to withdraw the amendment.
Lord Kennedy of Southwark
My Lords, the noble Baroness, Lady Harris of Richmond, in moving Amendment 108A, has made a compelling case. No one wants anybody to be on pre-charge bail any longer than is absolutely necessary. Her amendments seek to take account of the realities on the ground in local police forces, and the Government should accept them and the flexibility that they offer to police forces. She gave detailed figures to support her argument, and my noble friends Lord Bach and Lord Harris of Haringey spoke about the realities on the ground and the risk of a significant burden on police forces.
We should of course set the number of days that an individual can be on pre-charge bail before the matter is reconsidered at a maximum that is necessary, reasonable and proportionate. There should not be a target date, which in the majority of cases will not be met. The noble Baroness suggests in her Amendment 109 that 56 rather than 28 days is a more realistic target to work towards. There appears to be little to be gained from bringing people back only to be rebailed because the inquiries have not been completed—often, as we heard from the noble Lord, Lord Blair, and my noble friend Lord Harris, because other agencies have not completed their work on behalf of the police within 28 days.
Amendment 115, in the name of the noble Lord, Lord Paddick, would place a duty on the Secretary of State to commission, two years after the passing of this Bill, a report on the impact of the 28 days. That strikes me as a very wise thing to do and I hope that the Government will accept it. We want to ensure that Parliament and Government are informed with proper data before coming to a decision.
Amendment 116 in this group, which has not yet been referred to, is in the name of the noble Baroness, Lady Williams of Trafford. It responds to the case made by the noble Lord, Lord Marlesford, who is not in his place at the moment. The Government listened to that case and I welcome the fact that they have put forward an amendment today.
Baroness Williams of Trafford
My Lords, I hope that what I say will assuage some of the concerns expressed by noble Lords—through Amendments 109, 113 and 114—about the proposed 28-day period of bail being too short.
In Committee, the noble Lord, Lord Paddick, pointed to research conducted by Professor Hucklesby and Professor Zander to justify extending the initial period of pre-charge bail from 28 to 56 days. I point out from the outset that, as part of our reforms, there is a presumption that a suspect who has been arrested will be released without bail—that is, there is a presumption against bail. As the noble Lord, Lord Blair, rightly said, even though he does not agree with the Government’s position, bail has been overused and not used correctly. Over time, there has been a sloppy use of bail, if I may paraphrase what he said. Therefore, in a sense, we start from that position.
In reaching our view, we took full account of the research findings referred to by the noble Lord, Lord Paddick. As I said in Committee, the 28-day period set out in the Bill was not arrived at by chance; we carefully considered the initial period of bail, taking into account the research in drawing up our proposals. We acknowledge that the research concludes that many cases will not be dealt with within 28 days. That is why the system allows for extensions in such cases, but only where such extensions can be justified. We consider that the involvement of superintendents at this stage would enable them to review the cases under investigation within their force and to chase any cases where required. I stress again that a central feature of these reforms is that there is a presumption that a suspect who has been arrested will be released without bail—where there is no bail, no 28-day or any other limit is in operation.
Baroness Williams of Trafford
Perhaps I worded it clumsily, but what I was trying to say is that it would be a sunset provision and reviewed after two years.
Lord Harris of Haringey
Before the Minister sits down, will she address the question of whether or not, as part of their response to this, the Government will take some action to support the improvement of forensic services and the speed at which forensic cases are dealt with? What steps are the Government going to take to improve the resources available to the CPS so that it might deal with cases more quickly? That is a major reason why the 28-day period would be under pressure.
Baroness Williams of Trafford
The noble Lord makes a very good point, and there are in fact other reasons outside the police’s control why 28 days might prove difficult. It is for that reason that we will not only keep it under review but look at any blockages to the 28 days being fulfilled that are outside the police’s control.
Baroness Harris of Richmond
My Lords, I thank the Minister for her response and all noble Lords who spoke in support of the amendments. I guarantee to the Government that the exercise of this will be far more burdensome than they expect and that we will come back to this. These ideas will haunt the Government, because—
Baroness Williams of Trafford
My Lords, may I be completely rude and intervene on the noble Baroness? I completely forgot to speak to government Amendment 116. Will she indulge me, while I outline that amendment very briefly?
Amendment 116 responds to a point raised by my noble friend Lord Marlesford in Committee, and to which the noble Lord, Lord Kennedy, alluded, when he argued that written notification should be given in all cases where the police decide to take no further action. Amendment 116 complements Clauses 65 and 66, ensuring that notification of a decision to take no further action is always given, whatever the circumstances of a case. I commend the government amendment to the House and apologise for interrupting the noble Baroness.
Baroness Harris of Richmond
My Lords, it is quite all right.
I want to take up the point made by the noble Lord, Lord Blair. Have the Government taken into account what will happen if the 28-day period falls over Diwali, Christmas Day, Easter Sunday, the Sabbath, Ramadan, Eid or other religious festivals? This will cause real concern as there is no flexibility to respect these dates.
What about medical appointments, pre-arranged holidays, job interviews, caring responsibilities, academic examinations, funerals? The list is endless. There may be a case for a breach of human rights; certainly it could cause a corrosive relationship between the police and the public because of the length of time and the lack of flexibility. I hope that the Government will look again very closely at what many noble Lords have been proposing. At this stage there does not seem much point in dividing the House, so I beg leave to withdraw the amendment.
“PACE: duty to notify person interviewed that not to be prosecuted
After section 60A of the Police and Criminal Evidence Act 1984 insert—“60B Notification of decision not to prosecute person interviewed(1) This section applies where—(a) a person suspected of the commission of a criminal offence is interviewed by a police officer but is not arrested for the offence, and(b) the police officer in charge of investigating the offence 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.(2) A police officer must give the person notice in writing that the person is not to be prosecuted.(3) Subsection (2) does not prevent the prosecution of the person for an offence if new evidence comes to light after the notice was given.(4) In this section “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.””
Lord Rosser
My Lords, I do not wish to repeat all that has been said, but I would like to raise one or two points. The first refers to the statistics on the use of Section 136 of the Mental Health Act in 2015 and 2016 to which the noble Baroness, Lady Walmsley, has already referred. They show some surprising discrepancies between police force areas on Section 136 cases. For example, Hertfordshire and Merseyside are the two police force areas in which there has been zero use of police cells under Section 136. However, in Lincolnshire, police cells were used under the Section 136 powers on 173 occasions during 2015-16, in the context of a total usage under Section 136 on just 368 occasions. That is a staggeringly high percentage. Equally, one could go through the whole list and point to considerable discrepancies. Surprisingly, although one might have thought that the figure for the Metropolitan Police would be pretty high, the number of occasions in 2015-16 on which people were placed in police cells under the powers in Section 136 was apparently 17, in the context of a total figure of 3,693.
I cannot understand why we have these discrepancies, and I would appreciate it if the Minister commented on that. Is it really about suitable places being available in these areas, or a lack of co-ordination or willpower, or a lack of priority being given to avoiding the need to use police cells? Some response from the Government on that point would be extremely helpful, and extremely interesting.
I want to refer to the letter of 25 November 2016 that the noble Baroness, Lady Chisholm of Owlpen, sent to the noble Baroness, Lady Walmsley, to which the latter has already referred. It would be helpful—to me, at least—to have some clarification of what parts of the letter mean. It states:
“It is … our intention that the regulations make clear that certain situations, in and of themselves, do not justify use of a police station, for example, because there is no health based place of safety available at that time. Our expectation, which will be reinforced in the guidance that will support the regulations, is that there should be local plans in place to deal with this and other contingencies”.
What does the reference to,
“local plans in place to deal with this and other contingencies”,
mean? Does that mean that places have to be provided, or something else? The letter continues:
“A police station will only be used as a place of safety if it is considered to be the best and safest way to manage a particular individual in the interests of all concerned”.
But what happens if no health-based place of safety is available at that time? Does the sentence I quoted mean that in that situation, if no such place of safety is available, a police cell can be used? Other references in the letter suggest that that would not be the case, and that, in effect, a police cell could be used only when the individual was considered to be a danger to themselves or to others. Again, it would be very helpful to have some clarification.
I may not have heard the noble Baroness, Lady Walmsley, properly—I am afraid I am all too good at that—but I thought, and I may be doing her a disservice, that she said that the Government had indicated that they intend to reduce to zero the use of police cells. If so, may I have confirmation of that, because I do not think the letter of 25 November 2016 says that? Of course, the statement:
“A police station will only be used as a place of safety if it is considered to be the best and safest way to manage a particular individual in the interests of all concerned”,
still leaves open the possibility of using a police cell, and would not be consistent with the Government’s intention, if it is their intention, in the long term—one hopes in rather less than the long term—to reduce to zero the use of police cells.
I would like to raise two or three other points related to treating people in a situation of mental health crisis. Clause 80 would reduce the permitted period of detention in any place of safety—not just police cells—from 72 hours to 24 hours. Of course, one could argue that 24 hours is still quite a lengthy period for individuals to be detained prior to an assessment of their mental health, wherever they are detained. The proposals do provide for a further 12-hour extension of that detention period. As has already been pointed out, individuals with urgent mental health needs have just as much right to acute and emergency health care as anyone else. If any other forms of emergency health care were provided within a window of only 24 to 36 hours, it would probably provoke some highly adverse comment. Did the Government consider bringing the time limit down further, to 12 hours, say, with the possibility of extending detention by up to a further 12 hours on the authority of, for example, the registered medical practitioner responsible for the person in question’s examination under the Mental Health Act?
I want also to refer to the position—or lack of it—of independent mental health advocates. As I understand it, subject to other powers in the Mental Health Act, they are available to provide independent advocacy and advice to individuals such as those liable to psychiatric detention, or those who have received community treatment orders. Among other important functions, independent mental health advocates help individuals to obtain information about their detention or treatment, and support them in understanding what is happening to them. But as I understand it, individuals detained under Sections 135 and 136 of the Mental Health Act do not have a right to an independent mental health advocate. Surely, detention in any place of safety is a feature of the mental health regime, and one in which independent advocacy, advice and assistance are desirable, if not required. Why is it that individuals convicted of no crime but detained for their own safety can have no access to the independent advocacy and assistance to which they would be entitled during other mental health interventions but not under Sections 135 and 136? A related point is that the PACE codes of practice lay down a requirement to have access to an appropriate adult, but on too many occasions, this does not happen as the code of practice indicates it should.
Finally, for the purposes of the police and criminal evidence arrangements, a police intervention under Sections 135 and 136 is treated as an arrest, and any police involvement in taking a person to a place of safety generates information held by police as to that person’s mental health history, including the recording of a police intervention by way of Sections 135 or 136. The Disclosure and Barring Service provides a system whereby an individual’s criminal record may be checked and, where relevant, disclosed to prospective employers. Ordinary DBS checks result in cautions and convictions being revealed, where permitted, but under enhanced DBS checks, other information held by the police as to their involvement with that individual may be disclosed as well, where the officer responsible reasonably believes it to be relevant and that it ought to be disclosed. Police will hold information as to any arrest they conduct and any involvement they have in taking a person to a place of safety under Section 135 or Section 136. The mere fact of police intervention in response to a person’s mental health crisis is therefore liable to be disclosed. It could therefore have quite significant adverse consequences when it comes to seeking employment.
I understand that since August last year new guidelines have been enforced, requiring constables to disclose as part of such checks only records they reasonably believe to be relevant. There is guidance given relating to Section 135 that indicates that the fact of detention under Sections 135(1) and 136 of the Mental Health Act is unlikely in itself to be sufficient to justify disclosure. Sections 135 and 136 provide the police with powers to remove a person to a place of safety when the person is believed to be suffering from a mental disorder and in need of care or control. Such a detention under the Mental Health Act does not constitute a criminal investigation and should therefore be treated with great caution when considering relevance for disclosure. But, of course, police officers are not mental health professionals. There is nothing to require them to seek the advice of such professionals before making a decision as to the relevance of a person’s mental health.
There is surely a real danger that the police will continue to disclose mental health records. Where a person is processed through the criminal justice system, information relevant to criminal matters may be disclosed as part of an enhanced EBS check. However, the disclosure of an individual’s medical history is an entirely different matter. Will the Government impose a ban on the disclosure of Sections 135 and 136 detentions under criminal records checks? I hope the response to the points I have raised, if not available tonight, might be available subsequently.
Baroness Chisholm of Owlpen
My Lords, I am grateful to the noble Baroness, Lady Walmsley, for giving your Lordships’ House a further opportunity to debate the continued use of police stations as places of safety for adults. I think we all agree on the importance of taking someone experiencing a mental health crisis to a place of safety that will best meet their particular needs. We can also agree that, almost always, that should not be a police station, irrespective of the person’s age. But where we have not previously quite agreed is on removing outright the option of using a police station for an adult in those very rare cases where it is the judgment of the police officer on the scene that a police station is the safest place—at least initially—not just for the patient but for the public, health professionals or anyone else at risk from the extreme behaviour of the individual.
Let me make it plain that while the Government’s position is that it would be wrong and potentially very dangerous to ban outright the use of police stations as places of safety for adults, we have no intention of leaving police officers without support in making the judgment that a particular situation is of such severity that this would be the correct response. The regulation-making powers in Clause 79 will be used to set out factors relevant to the decision on whether circumstances merit the use of a police station. We envisage that these will cover a range of issues, such as how dangerous an individual’s behaviour is and how serious a risk of harm to themselves or others they represent. We will also look to include provisions to give the officer the opportunity to consult with mental health professionals if it is safe and practicable to do so.
Equally importantly, if the decision is made to use a police station, we must make sure that the individual receives all the appropriate healthcare and treatment they need while they are there. This, too, will be covered in the planned regulations. The regulations will further provide for a regular review of the individual’s condition so that they can be moved to a more appropriate place of safety if the circumstances change—for example, if their behaviour has moderated and the move is in their best interest and can be achieved without delaying the mental health assessment.
I expect that, once these provisions come into force, we will see a further substantial reduction in the use of police stations as a place of safety for adults. But it would be wrong, in our view, to assume that we can reach a point over the next few years when we can say with absolute certainty that there will never be circumstances where the use of a police station as a place of safety for an adult is an appropriate option because their extreme behaviour cannot safely be managed in an alternative place of safety. That being the case, we do not believe that the proposed new clause is an appropriate way forward. However, I want to reach the position whereby police stations are used as a place of safety only in specific, “exceptional” circumstances —and, when they are used, the person taken there must be given the right medical care.
Lots of points were raised during the debate. The noble Lord, Lord Rosser, asked why there were discrepancies in the use of police cells across police forces. There is a range of reasons why this happens. It may include different policies on accepting violent behaviour, but it is also about the fact that, as the noble Lord pointed out, in London, for instance, they are not used as widely as they are in Lincolnshire, which has seen a high rise in the use of police cells. Often that is because Lincolnshire is more rural and there are not so many places of safety available, whereas there are more in London. So there are several reasons why that could be the case.
Baroness Chisholm of Owlpen
I was pointing that out as just one of the reasons why it might be—but we have to remember that, as we know, mental health is going through a huge change at the moment. As I said in a debate on Monday, I am afraid that we are going from a very low base. We have to be aware that it will take time for these places of safety to be there to ensure that we have an increased number of beds or places of safety for these people to be taken. That is part of the reason for the discrepancy.
To go back to further points raised on mental health, the noble Lord, Lord Rosser, raised an issue related to the respective changes to police powers under Sections 135 and 136 of the Mental Health Act. The noble Lord suggested that the maximum detention period should be reduced further to 12 hours. We are confident that the Bill reduces the maximum detention period by the appropriate amount—from 72 hours to 24 hours. The Government have seen evidence that the average assessment under Section 136 is conducted in under 11 hours. Furthermore, we fully support the target set by the Royal College of Psychiatrists for assessments to commence within three hours. However, there are some cases when it is not possible, due to the condition of the person detained, to conduct a meaningful assessment within 12 hours: for example, if they are intoxicated through alcohol or drugs.
The noble Lord also mentioned duties on police to consult with mental health professionals, with detainees having a right to an independent mental health advocate. The second issue concerned access to independent advice. Clause 78 requires police officers to seek advice from certain specific healthcare professionals, if practical, before making a decision to exercise their powers under Section 136. This is about supporting police officers to make the best possible decisions when they encounter a person who may be experiencing a mental crisis. This provision builds on existing good practice of police forces and local NHS services working together collaboratively, including through street triage schemes. The “if practical to do so” condition will avoid tying the hands of an officer if, in their judgment, they need to use the powers quickly to secure an individual’s safety.
On detainees’ access to advice, for example from a mental health advocate or an appropriate adult, the guidance supporting the implementation of these provisions will set out the expected support to be provided to any person detained at a place of safety under Section 135 or Section 136. Such support can, in our view, most appropriately be provided by health staff already present, rather than another person in a bespoke role, which would introduce delays and jeopardise professionals’ ability to conduct the assessment within 24 hours.
The noble Lord asked whether a person’s detention is disclosable if they subsequently apply for a disclosure and barring service check. In 2015 the Home Office published revised statutory guidance on enhanced DBS checks in relation to Section 135 and Section 136 detentions. The guidance now emphasises that the use of these powers in and of itself is unlikely to be sufficient to justify disclosure. The police are now directed to specifically factor in the behaviour of the detained person at the time, and how long they were detained. The Government’s position is that we cannot wholly rule out the possibility that there will continue to be circumstances in the future when a person’s behaviour is so extreme that it can safely be managed, at least initially, only in a police station. We are not legislating for some future point when that position will cease to be the case, which is what the amendment suggests.
I hope that, with all the things I have set out, and given our clear shared objective of doing what is in the best interests of all concerned, including their safety, I hope that the noble Baroness will be content to withdraw her amendment.
Baroness Walmsley
My Lords, I thank those who supported my amendment. I was fascinated by the treatise of the noble Lord, Lord Rosser, on other aspects of Sections 135 and Section 136. He is, of course, absolutely right that there is no correlation at all between the use of police cells and the rurality or urbanisation of the area concerned: absolutely none. I have always known that Merseyside is a very special place—because that is where I come from—but apparently in Merseyside there are no “exceptional circumstances”, whereas there are in other places. I cannot understand the Government’s determination to insist that there will be exceptional circumstances in other places if there are none in Hertfordshire and Merseyside.
It is quite clear that the Government are not going to move on this. However, I have to say that I welcome, of course, what the noble Baroness said about regulations. We will have to keep a very careful eye on how these work and whether they achieve our joint objective of bringing the numbers down as low as possible. I very much hope that that is exactly what will happen over the next few years. The hour being what it is, I beg leave to withdraw the amendment.
Lord Kennedy of Southwark
I am conscious of the late hour and that the next business should be coming on, so I will be very brief. From our Benches, we certainly endorse the amendment in the name of the noble Baroness, Lady Walmsley, who, along with the noble Baroness, Lady Howe, has spoken in great detail on it. I do not intend to speak for much longer than that—but what is being highlighted here is very important. I will make one point: the amendment is not suggesting that all young people need is CAMHS; they need a holistic approach, so that their mental health needs can be properly assessed. It is not quite as stark as the noble Viscount or the noble Earl suggested. We certainly support the amendment on these Benches and I will leave it at that.
Baroness Williams of Trafford
I applaud the noble Baroness, Lady Walmsley, on her intention to ensure that children who have been abused have the proper provision following that abuse, mainly because they are often traumatised by their experiences. I share her desire to ensure that such children receive the support they need, including for their mental and physical health, but I must reiterate my strong belief that the overriding determinant of referral for health services must be clinical need.
Baroness Williams of Trafford
With no coercion, as the noble Viscount says. The important thing is that all children and young people, not just those who are victims of sexual offences, 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. Furthermore, the amendment makes no reference to obtaining consent.
I think that my noble friend Lord Hailsham referred to that. Individuals, including children or their parents or carers, as 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 the relevant personal details to be passed to the health provider. This is the proper course of action, rather than automatically passing personal details and potentially sensitive information about sexual abuse to a third party, even when that third party is a healthcare provider. We know there is more that can be done to meet the health needs of children and we are taking concrete steps to do that.
The Government wholeheartedly agree that mental health services should be available to children and young people who need them. We are investing significant funding to that end—but, as I have indicated, it would be wholly inappropriate for referrals to mental health services to be the responsibility of police officers rather than appropriately trained practitioners. I stand ready to meet the noble Baroness and other noble Lords who have put their name to this amendment to discuss these issues further, but I hope that at this stage the noble Baroness will agree to withdraw her amendment.
Earl Attlee
My Lords, I will briefly support the noble Viscount. I would not want to put a police officer in the very difficult position of having to decide whether to get involved in close engagement with someone who is very dangerous or use a conventional firearm, with all the difficulties that that entails.
Baroness Williams of Trafford
My Lords, this amendment brings us back to the use of Tasers. I am grateful to the noble Baroness, Lady Walmsley, for taking on board the points raised when we debated this issue in Committee and coming back with a revised amendment. My noble friends Lord Hailsham and Lord Attlee have given us a flavour of what we discussed then.
Any use of force by police officers in psychiatric wards on patients—or on any member of the public in any setting for that matter—must be appropriate, proportionate, necessary and conducted as safely as possible. When police officers need to attend and use force, they must be able to account for their actions. As the noble Lords, Lord Dear and Lord Rosser, and my noble friend Lord Hailsham indicated in Committee, a blanket ban on the use of Tasers in psychiatric wards would remove this valuable police tactic when they are dealing with potentially very violent situations.
Baroness Williams of Trafford
I do not usually take interventions on Report, although I will acquiesce to the noble Baroness because she did not speak for very long.
Baroness Williams of Trafford
I welcome the fact that the noble Baroness now accepts that there will be exceptional circumstances. My noble friend Lord Hailsham has very clearly outlined what exceptional circumstances would be, and I explained in Committee that it was when all other options for restraint had failed, particularly when the person has perhaps had to be kept at length from the police officer—in other words when going near the person would create a danger for other people.
The Taser was introduced to be used at that intermediate stage. It is to be used where de-escalation at the lower end has already been tried but has failed, and where the officer deems that other options—ranging from the use of lethal force, as my noble friend said, at the higher end—will not resolve the immediate threat in the safest and most proportionate way.
With regard to recording incidents, as the noble Baroness pointed out, each officer who deploys a Taser is required to complete a Taser evaluation form on every occasion where the device is used. The form should be completed prior to the end of each tour of duty, but in any case within 24 hours of the use. The police forces’ lead Taser officer is responsible for reviewing, collating and recording all Taser evaluation forms.
In Committee I explained that new police data were being collected on the use of force by officers, including force used in a hospital setting, to further improve the existing system of recording and reporting. Police forces are working to implement this new recording system and we expect data to be published as part of the Home Office’s annual data return in summer 2018 to ensure that the use of Tasers is absolutely transparent.
I put it to the noble Baroness that effective scrutiny of the use of Tasers is a better way forward than seeking to legislate. No officer will use a Taser lightly and will seek to argue that there were indeed exceptional circumstances. I have already pointed to the anomaly that this amendment would create in respect of the use of lethal force—no one wants to see that happen—if a safer tactic was unavailable. I hope the noble Baroness will feel happy to withdraw her amendment.
Baroness Walmsley
My Lords, I thank the Minister for her reply. Anyone hearing what has been said in the House tonight would think that I was asking for a ban on the use of Tasers. If noble Lords read my amendment carefully, they will realise that that is not what it would do. It accepts what the Government said in Committee, and during meetings that we had at the Home Office, that there may be exceptional circumstances. That is why I am no longer asking for a ban; I make that absolutely clear to noble Lords who have spoken.
However, it is a very serious matter for a police officer to use a Taser, as the Minister herself has said, in which case I think it would be helpful to the police if the Secretary of State were to specify clearly what is meant by “exceptional circumstances”. The noble Viscount, Lord Hailsham, has tried this evening to give a very simple account of what that means, and indeed the Minister has done the same. If it is that simple, why can it not be done? I think it would help the police.
I am aware that, following discussion in another place of an amendment similar to this one, a lot more information is now to be collected about the use of Tasers. I think that is a very good thing, and I look forward to seeing what we can learn from it. However, in this amendment I seek to be helpful to the police and to protect them by making very clear what they can and cannot do, and under what circumstances. But clearly the Government are not going to accept that, so I beg leave to withdraw the amendment.
Wednesday 7th December 2016
(7 years, 4 months ago)
Lords ChamberRead Hansard Text Amendment Paper: HL Bill 72-II(Rev) Revised second marshalled list for Report (PDF, 324KB) - (6 Dec 2016)
16:32 - Division on Amendment 157 - Ayes: 243 / Noes: 208 - Amendment 157 agreed.
18:25 - Division on Amendment 173 - Ayes: 135 / Noes: 177 - Amendment 173 disagreed.
This text is a record of ministerial contributions to a debate held as part of the Policing and Crime Act 2017 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
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Baroness Chisholm of Owlpen (Con)
My Lords, Section 32 of the Police (Northern Ireland) Act 2000 limits police jurisdiction throughout Northern Ireland and its adjacent UK waters within the seaward limits of the territorial sea in the same manner as Section 30 of the Police Act 1996 applies in England and Wales. However, within these limits, the police do not have powers suitable for the maritime context.
The new clauses proposed in this group comprise a new Chapter 6A of Part 4 of the Bill, making provision for the police and other law enforcement in Northern Ireland to have powers corresponding to those conferred on law enforcement in England and Wales and in Scotland by virtue of Chapters 5 and 6 of Part 4. In particular, new Chapter 6A provides Northern Ireland law enforcement with maritime-specific powers, such as to stop, board, detain and divert ships for the purpose of preventing, detecting or investigating an offence under the law of Northern Ireland. Unlike the provisions in Chapters 5 and 6 of Part 4, and at the request of the Northern Ireland Department of Justice, the powers are, however, limited to ships in the territorial waters of Northern Ireland and do not extend to international or foreign waters.
There are particular policing accountability and oversight arrangements in Northern Ireland, and it has not been possible for the Department of Justice to secure the necessary agreement with relevant stakeholders within the time available for the exercise of powers by law enforcement officers from England, Wales or Scotland in Northern Ireland waters in hot-pursuit situations. Again at the request of the Minister of Justice in Northern Ireland, these amendments would remove the hot-pursuit provisions that relate to law enforcement officers from outside Northern Ireland entering Northern Ireland waters. The Northern Ireland Assembly agreed the necessary legislative consent Motion in respect of these provisions on 28 November.
I note that the noble Lord, Lord Paddick, has an amendment in this group and I propose to respond to it when winding up. For now, I beg to move.
Lord Paddick (LD)
My Lords, as the Minister has just said, my noble friend Lady Hamwee and I have Amendment 122A in this group. It concerns Chapter 5, which is headed “Police Powers: Maritime Enforcement in Connection with English and Welsh Offences”.
The Bill gives extensive powers to the police in connection with preventing, detecting, investigating or prosecuting offences under the law of England and Wales in relation to a UK ship in England and Wales waters or international waters, a ship without nationality in England and Wales waters or international waters, a foreign ship in England and Wales waters or international waters, or a ship registered under the law of a relevant territory in England and Wales waters or international waters. That seems to me to cover any ship anywhere in the world, although there are restrictions if the UK ship is in foreign waters or if it is a foreign ship in England and Wales waters, when either the Secretary of State’s permission or, in some cases, that of the foreign state to which the ship is registered is required. In one place the Bill talks about “England and Wales waters” and in another it uses the words,
“within the territorial sea adjacent to England and Wales”.
I am not sure why there is different wording in different parts. Perhaps the Minister can explain.
The powers are to stop, board, divert and detain, to search and obtain information, and to arrest and seize. Officers who can exercise these powers include special constables, port constables, customs officials and anyone else the Secretary of State specifies in regulations, subject only to the negative procedure. This gives extensive powers to a whole range of law enforcement officers without restriction in relation to the exercise of the powers relating to a UK ship in England and Wales waters on the basis that the law enforcement officer has reasonable grounds to suspect—the same low level of suspicion required to make an arrest or to carry out a stop and search in the street—that an offence under the law of England and Wales is being or has been committed, or there are reasonable grounds to suspect that the ship itself is being used in the commission of an offence.
Lord Blair of Boughton (CB)
My Lords, it is an unusual pleasure for me to agree completely with the noble Lord, Lord Paddick.
Baroness Chisholm of Owlpen
The noble Lord, Lord Paddick, has again argued for the maritime enforcement powers in the Bill to be restricted to the enforcement of serious offences. As I indicated in Committee, we do not believe it is necessary to limit these powers in this way. The Government believe that we should trust the operational judgment of the police to determine when it is appropriate and proportionate to exercise their powers at sea. For example, we do not believe that the police would commit resources to interdict a vessel in international waters where there had been a theft of an item of, say, confectionery from a gift shop—which, incidentally, would be an indictable offence.
However, a police officer on, let us say, a UK-registered ferry should be able to act when the vessel is in international waters where a person commits a common assault on another person, or where a person exhibits threatening or abusive behaviour. In both cases, we are talking about summary-only offences and in both cases the noble Lord’s amendment would prevent the police acting, even though the law of the land applied and the actions of those individuals might none the less be triable in the courts of England and Wales. We do not impose restrictions on the categories of offences the police can investigate where they take place on other modes of transportation, so, again, I am unclear why we should treat maritime vessels any differently.
Lord Paddick
Can the Minister explain what happens at the moment if a summary-only offence is committed, for example, on a cross-channel ferry? How would that offence be dealt with?
Baroness Chisholm of Owlpen
I think that I will have to get back to the noble Lord on that point.
Lord Blair of Boughton
This is about the difference between a bus, a train and a ship. The ability to stop a ship and push it into harbour is a completely different level of activity from saying, “We’re going to stop the train at Reading because somebody has been assaulted”. I have listened to the argument made by the noble Lord, Lord Paddick, and I completely agree with him. It cannot be right that a single police officer can decide to turn around a cargo ship or a cruise ship in the Irish Sea for a summary offence. I accept that, as the Minister said, there are complications around theft, with the theft of some sweets from a shop being an indictable offence in some circumstances, but we have to make a definition somewhere. This is about being utterly reasonable, and I do not think that the Government are being reasonable here.
Baroness Chisholm of Owlpen
The police are professionals and they must have operational discretion as to when to exercise their powers. I know that a ship at sea is not a bus, which can just move into the side of the road, but a serious offence could have been committed. The police should be able to know when they need to exercise their powers. In answer to the noble Lord’s question, there are currently no powers to take effective enforcement action in such circumstances, other than in relation to modern slavery and drug offences.
Viscount Slim (CB)
My Lords, I am rather disappointed about the police in this situation. Certainly in my life, junior NCOs have taken charge of situations similar to this and had to make decisions. There must be somewhere within the constabulary either a lack of training or a lack of selection of their junior leaders.
Lord Paddick
My Lords, I am glad that I brought back this amendment, if only to hear the noble Lord, Lord Blair, call me utterly reasonable. As for the Minister’s faith in the ability of an off-duty police officer who becomes involved in a brawl on a cruise ship to make completely the right operational decision not to divert the vessel into port, that goes beyond my own experience and that of the noble Lord, Lord Blair, of the way in which it would be natural for some off-duty police officers to behave in such circumstances. Clearly, I am not going to press this to a Division, but I think the House recognises the considerable discomfort that both the noble Lord, Lord Blair, and I have over the legislation as proposed.
“CHAPTER 6APOLICE POWERS: MARITIME ENFORCEMENT: NORTHERN IRISH OFFENCESApplication of maritime enforcement powers: general
(1) A law enforcement officer may, for the purpose of preventing, detecting or investigating an offence under the law of Northern Ireland, exercise any of the maritime enforcement powers in relation to—(a) a United Kingdom ship in Northern Ireland waters,(b) a ship without nationality in Northern Ireland waters,(c) a foreign ship in Northern Ireland waters, or(d) a ship, registered under the law of a relevant territory, in Northern Ireland waters.(2) In this Chapter, “the maritime enforcement powers” are the powers set out in—(a) section (Power to stop, board, divert and detain) (power to stop, board, divert and detain);(b) section (Power to search and obtain information) (power to search and obtain information);(c) section (Power of arrest and seizure) (power of arrest and seizure).(3) The following persons are “law enforcement officers” for the purpose of this Chapter—(a) a constable who is a member of the Police Service of Northern Ireland or the Police Service of Northern Ireland Reserve,(b) a person appointed as a special constable in Northern Ireland by virtue of provision incorporating section 79 of the Harbours, Docks, and Piers Clauses Act 1847,(c) a designated customs official within the meaning of Part 1 of the Borders, Citizenship and Immigration Act 2009 (see section 14(6) of that Act),(d) 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(e) a person of a description specified in regulations made by the Secretary of State. (4) Regulations under subsection (3)(e) are to be made by statutory instrument.(5) A statutory instrument containing regulations under subsection (3)(e) is subject to annulment in pursuance of a resolution of either House of Parliament.(6) Regulations under subsection (3)(e) may not make devolved provision except with the consent of the Department of Justice in Northern Ireland.(7) For the purposes of subsection (6), regulations under subsection (3)(e) make devolved provision if and to the extent that—(a) the effect of the regulations is to confer functions under this Chapter on a person of a description specified in the regulations,(b) it would be within the legislative competence of the Northern Ireland Assembly to confer those functions on persons of that description in an Act of the Northern Ireland Assembly, and(c) the consent of the Secretary of State would not be required under section 8 of the Northern Ireland Act 1998 in relation to a Bill conferring such functions.(8) This section is subject to section (Restriction on exercise of maritime enforcement powers) (which makes provision about when the authority of the Secretary of State is required before the maritime enforcement powers are exercised in reliance on this section).”
Baroness Chisholm of Owlpen
My Lords, Chapter 7 of Part 4 of the Bill closes a gap in cross-border powers by providing for urgent cross-border powers of arrest by police and other law enforcement officers across the three UK jurisdictions. Amendments 138 and 140 extend these powers so that they are exercisable by immigration officers and officers of Revenue and Customs, as well as National Crime Agency officers and designated customs officials who have the powers of Revenue and Customs officers. Amendment 137 provides that the powers are exercisable by British Transport Police officers in respect of offences wherever committed in the UK.
Amendment 149 inserts a new clause to provide that all the cross-border powers of arrest will be exercisable by Revenue and Customs officers in relation to any of the functions of HMRC or Revenue and Customs officers. This means that the powers will be available in relation to both tax and customs matters, rather than being confined to tax matters as they are now. The amendments also clarify the meaning of key terms as they apply to the exercise of the cross-border powers by Revenue and Customs officers and immigration officers. These amendments further enhance the effectiveness of law enforcement across the UK, ensuring that criminals are not able to evade the law simply by crossing an internal border. I beg to move.
Lord Rosser (Lab)
I just raise one question on these amendments, although I readily accept that, perhaps if I had read everything sent to me, I would not be asking such questions. As the Minister said, this talks about an extension of powers to immigration officers, Revenue and Customs officers, the British Transport Police and others. Should these provisions have been included earlier in the Bill and it has just been realised that they were not there, hence these amendments being brought forward, or is this some completely new power? If so, what has been happening up to now? What have been the consequences of not having these powers? How detrimental has that been?
Baroness Chisholm of Owlpen
No, this is just closing the gap that we realised was there earlier on. It is not new.
“(9) In subsection (8), in the definition of “investigating force”, the reference to a police force includes a reference to—(a) the National Crime Agency;(b) any of the following (to the extent that their functions relate to the investigation of offences)—(i) officers of Revenue and Customs;(ii) immigration officers;(iii) designated customs officials within the meaning of Part 1 of the Borders, Citizenship and Immigration Act 2009 (see section 14(6) of that Act).(10) In the application of this section in a case where the investigating force is a police force mentioned in subsection (9)(a) or (b)—(a) the reference to a constable in subsections (4)(b) and (5)(b), and the reference to a constable in the investigating force in subsection (7)(a), is to be read as a reference to a National Crime Agency officer designated under section 9 or 10 of the Crime and Courts Act 2013 (“a designated NCA officer”), an officer of Revenue and Customs, an immigration officer or a designated customs official (as the case may be);(b) any reference to an officer of at least, or above, the rank of inspector in the investigating force is to be read as a reference to a designated NCA officer, an officer of Revenue and Customs, an immigration officer or a designated customs official (as the case may be) of at least, or above, the equivalent grade.”
“Cross-border enforcement: officers of Revenue and Customs
In section 87 of the Finance Act 2007 (cross-border exercise of powers: officers of Revenue and Customs), in subsection (4) for “only in the exercise of a function relating to tax (including duties and tax credits)” substitute “in the exercise of any function of the Commissioners for Her Majesty’s Revenue and Customs or of officers of Revenue and Customs, within the meaning of the Commissioners for Revenue and Customs Act 2005 (see section 51(2) to (2B) of that Act)”.”
“Powers to require removal of disguises: oral authorisation
In section 60AA of the Criminal Justice and Public Order Act 1994 (powers to require removal of disguises), for subsection (6) substitute—“(6) Subject to subsection (6A), an authorisation under subsection (3)—(a) shall be in writing and signed by the officer giving it; and(b) shall specify—(i) the grounds on which it is given;(ii) the locality in which the powers conferred by this section are exercisable; and(iii) the period during which those powers are exercisable.(6A) An authorisation under subsection (3) need not be given in writing where it is not practicable to do so but any oral authorisation—(a) must state the matters which would otherwise have to be specified under subsection (6), and(b) must be recorded in writing as soon as it is practicable to do so.(6B) A direction under subsection (4) shall be given in writing or, where that is not practicable, recorded in writing as soon as it is practicable to do so.””
Baroness Chisholm of Owlpen
My Lords, these amendments respond to an amendment tabled by the noble Lord, Lord Dear, in Committee, which concerned the authorisation process for the exercise by a constable of the power to require the removal of a disguise. Section 60AA of the Criminal Justice and Public Order Act 1994 is an important preventive tool, enabling the police to remove disguises in instances where they believe offences may be committed. As an intrusive power, quite rightly this requires prior authorisation from an officer of the rank of inspector or above.
However, as the noble Lord, Lord Dear, explained in Committee, the spontaneous arising or escalation of public order incidents does not always permit sufficient time for this approval to come in written form. Amendment 150 ensures that oral authorisation is permitted where it is the only practicable course of action. This authorisation must then be put in writing as soon as is practicable. Amendment 204 makes a consequential amendment to the Long Title of the Bill.
These amendments have been the subject of extensive discussions between officials and the relevant national policing leads, as well as between MPs and the former Policing Minister, Mike Penning. They will give greater clarity and flexibility to the police in the operational use of this power. I beg to move.
Lord Dear (CB)
My Lords, I support the amendment. I remind the House that I tabled much the same amendment in Committee. I suggested then that the Minister might take the amendment back, consider it and bring it back on Report—which, of course, has been done. So I record my thanks to the Minister and the officials at the Home Office for their support.
Some misgivings were expressed in Committee that face veils—religious coverings—would be caught in this legislation. I would like to make it clear—as I think is now accepted—that the only change in this amendment is to allow authorisation for the police to use existing powers to be given orally and recorded in writing later. I hope that the fears concerning religious coverings have been allayed and I am very pleased to support the amendment.
“Deputy Mayor for Policing and Crime as member of local authority
(1) Section 1 of the Local Government and Housing Act 1989 (disqualification and political restriction of certain local authority officers and staff) is amended as follows.(2) In subsection (9) (references to a person holding a politically restricted post under a local authority include every member of the staff of an elected local policing body) omit “, except for a deputy police and crime commissioner”. (3) After that subsection insert—“(10) The reference in subsection (9) to every member of the staff of an elected local policing body does not include a deputy police and crime commissioner.(11) For the purposes of subsection (1) only, the reference in subsection (9) to every member of the staff of an elected local policing body does not include the Deputy Mayor for Policing and Crime appointed under section 19(1)(a) of the Police Reform and Social Responsibility Act 2011.””
Lord Mackay of Clashfern
I think that if the Government agree that the matter can be reconsidered at Third Reading, it does not need to be a government amendment.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, I do not doubt the sincerity of the intentions behind this amendment. The new clause comes directly from the experiences of the Hillsborough families, and anyone who has heard of their long fight for justice cannot fail to be moved. I entirely accept, however, that the issue raised by the amendment is of general application.
As noble Lords will be aware from the debate in Committee, the Government’s position on this amendment is that we should wait for the report commissioned from Bishop James Jones on the experiences of the Hillsborough families. In commissioning the work, the then Home Secretary asked Bishop Jones,
“to ensure that the full perspective of those most affected by the Hillsborough disaster is not lost”.—[Official Report, Commons, 27/4/16; col. 1436.]
The families will have numerous experiences, including views on legal representation, and this will be reflected in Bishop Jones’s report, which he aims to publish next spring.
I entirely accept noble Lords’ points about the coroner, and we will bring them to the attention of Bishop Jones, but I reiterate that it is appropriate that the Government have the opportunity to consider his conclusions and recommendations fully before deciding what action to take. It would therefore be premature to proceed with the amendment at this stage.
It must be right that any consideration of this amendment takes account of the financial implications. The cost of the legal representation for the 103 Hillsborough families at the fresh inquests amounted to £63.6 million. Clearly, the Hillsborough inquests were an exceptional case, but they provide at least an indication of the level of financial commitment such an amendment could imply. While it is the case that the Hillsborough families received public funding for their legal costs at the fresh inquest, it was a bespoke scheme, instituted due to the exceptional nature of the events that took place 27 years ago.
Recognising the exceptional nature of the Hillsborough inquests, it is also right that we look at other data. We cannot say for certain in how many inquests the police are named as an interested person. However, we know from the Independent Police Complaints Commission report Deaths During or Following Police Contact: Statistics for England and Wales 2015/16 that in the last financial year, 200 persons died following contact with the police. All of those deaths would have been subject to an inquest. Of course, the financial implications of this amendment are but one of the matters noble Lords will wish to take into consideration, but we cannot be blind to the impact on the public purse.
However, I come back to my core objection to this amendment: that this is neither the time nor the place to pursue this matter. 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 that, the most appropriate way forward. I hope the noble Lord, Lord Rosser, will accept that this is the proper way to proceed and agree—
Lord Kerr of Kinlochard (CB)
Before the Minister sits down, I would like to be quite clear. Is she rejecting the wise advice from the noble and learned Lord, Lord Mackay of Clashfern? Is she saying that this is not a point of principle but a point of public expenditure?
Baroness Williams of Trafford
I am not disagreeing with anything that noble Lords have said. I have said that, in the light of the review by Bishop Jones, this is not the time to press the amendment. I hope, on that note, that the noble Lord will withdraw his amendment.
Lord Rosser
I thank all noble Lords who have spoken in this debate and will just make one or two comments on what the Minister had to say in reply. What is recorded in Hansard is that,
“the former Home Secretary commissioned Bishop James Jones to compile a report on the experiences of the Hillsborough families”.
It does not say there that he has been asked to compile a report on the much wider issue raised in this amendment. As far as the timescale is concerned, I can only repeat what the Government said in Committee not so long ago, on 2 November, which is that Bishop Jones has only reached the stage where:
“He is considering the terms of reference for his review with the families”—
presumably the Hillsborough families—
“and intends to publish them shortly”.
He must be some way from that, if it is going to be a detailed report looking at the situation as a whole, rather than just the Hillsborough situation. Certainly, if there is a suggestion that he is going to publish something within a very few months, it would suggest very much that it is going to be concentrated on what happened at Hillsborough and the experience of the Hillsborough families, and not on the much wider issue covered in this amendment of representation for bereaved families at inquests generally where the police are legally represented. The issue of costs has been raised by the Government, which must raise some further doubts. I refer again to what the Government said on 2 November, which is that the Government wish to,
“put on record that these amendments would place a significant financial burden on the Secretary of State … The cost of the legal representation for the 103 families at the fresh inquest into Hillsborough amounted to £63.6 million”.—[Official Report, 2/11/16; cols. 757-59.]
The Government incurred that cost without the terms of this amendment being in operation. But it is quite clear that cost is a major consideration as far as the Government are concerned, rather than the fundamental issue of principle—parity of funding—which is addressed in the amendment. We also of course have not had any commitment from the Government in principle to what is in this amendment, and there is a reference as well to it being considered in due course.
I will come on to the comments that were made. Because there has been no indication that we can bring this back at Third Reading, I believe that we are no longer in a position where we can come back then with an amendment to our amendment. But if the issue is that this should be decided by a coroner or through some sort of judicial decision, rather than by the police and crime commissioner, and if the Government were prepared to give a commitment to bring along an amendment of that nature, I am quite sure that we would support it. The issue for us is not whether it is the police and crime commissioner making the recommendation. The gut issue here is parity of support for bereaved families at inquests where the police are legally represented. Since I do not think I have had a sufficient response from the Government, I beg leave—
(a) is designed to discharge only a small plastic missile (whether or not it is also capable of discharging any other kind of missile), and(b) is not capable of discharging a missile (of any kind) with kinetic energy at the muzzle of the weapon that exceeds the permitted level.”
Baroness Williams of Trafford
My Lords, the government amendments in this group seek to improve the provisions in Part 6 of the Bill relating to firearms. Amendments 159 to 162 make four improvements to the definition of airsoft weapons, which are non-lethal and pose a low risk to public safety. These weapons are legitimately used to discharge pellets manufactured with plastics and are considered as safe for mock skirmishing activities. Amendment 159 responds to concerns raised with us that the current definition is too restrictive and has no realistic prospect of applying to many airsoft weapons, because those weapons could be used to discharge missiles other than these pellets. It amends the definition to refer to the original design of the weapon to discharge only a small plastic missile as defined in the exemption. However, as the then Firearms Consultative Committee found in 2002, airsoft darts, which have higher penetrative qualities, pose a higher risk of causing serious injury than pellets discharged at the same kinetic energy level. Amendment 160 sets out that only weapons designed to discharge small spherical plastic missiles will be considered to be airsoft weapons.
The amendments also take account of new evidence from forensic tests undertaken during the summer on the lethality of airsoft weapons which were used to discharge pellets of up to 8 millimetres in diameter at the maximum permitted kinetic energy levels. Amendment 161 therefore increases the maximum allowable diameter from the current maximum of 6 millimetres to 8 millimetres, in line with the forensic evidence. Amendment 162 makes a technical amendment to the definition of automatic fire airsoft weapons in relation to the permitted kinetic energy level of such weapons, to be consistent with Amendment 159. The Government are committed to legislation that has a proportionate impact. These amendments will allow legitimate businesses in the airsoft industry to continue operating while setting clear standards of compliance required to protect public safety.
Amendments 163 to 165 to Clause 112 amend the definition of an antique firearm in order to cover air weapons as well as weapons that use an ignition system. As currently drafted, the clause confers a new regulation-making power to specify antique firearms by reference to the obsolete cartridge that they are chambered to discharge, or their ignition system. The intention is to place existing guidance on antique firearms on a statutory footing to clarify the law on antique firearms and prevent abuse by criminals. Currently, it is not possible to include air weapons within the definition of an antique firearm as they do not have an ignition system.
Amendments 163 and 165 will ensure that the definition can cover any type of firearm by reference to its propulsion system which, technically, can apply to air weapons as well as ignition firearms. Amendment 164 limits this extension of the definition to England and Wales only, given that the regulation of air weapons is a devolved matter in Scotland.
I hope that Amendments 166 and 167 address the legitimate concern raised by my noble friend Lord Attlee in Committee about the potential impact of EU deactivation standards for deactivated weapons on collectors and the film industry, and the need for the UK to be able to retain more robust controls.
Clause 114 amends the Firearms (Amendment) Act 1988 to make it an offence to make a “defectively deactivated” weapon available for sale or as a gift, or to sell such a weapon or to give it as a gift, other than to a person or persons who are outside the European Union. This gives effect to the European Commission implementing regulation on deactivation standards, which came into force on 8 April 2016 to set the standard for deactivating firearms across the European Union. As currently drafted, the clause retains the link to the EU standards in primary legislation. Amendments 166 and 167 remove this and instead provide for the standards to be specified by the Secretary of State. While we remain members of the EU we are required to abide by the EU standards, but these amendments provide the flexibility to set our own higher standards in the future.
In these circumstances, the Government recognise that it would be inappropriate for our museums to be subject to the new offence when transferring or receiving firearms deactivated to previous standards. It is not our intention for museums licensed to hold firearms to incur additional costs in relation to already deactivated weapons to comply with new deactivation standards which are not directed at them. The risk that museums may have to destroy weapons which are part of our cultural heritage would be an unacceptable result of these provisions. Amendments 168 and 169 therefore provide for the exemption of museums licensed by the Home Office in relation to firearms to be able to transfer or receive weapons which were deactivated to UK standards before the EU directive came into force and until the Secretary of State sets new standards.
Amendment 169A responds to an amendment tabled by Geoffrey Clifton-Brown at Commons Report stage. It amends the law relating to the legitimate practice of lending and borrowing a rifle or shotgun for the purposes of hunting animals, shooting game or vermin, and shooting at artificial targets on private premises. Current legislation permits a firearm certificate holder to lend a rifle or shotgun to a non-certificate holder only if the occupier—or, where the relevant firearm is a rifle, the occupier’s servant—is present on private land of which they are the occupier. The amendment allows a certificate holder to lend a firearm or shotgun on private premises, where they have the permission, in writing, of a person with the right to invite guests on to the premises for the purposes that I have already referred to. The effect of this amendment is that both certificate holders with the right to invite guests on to premises for shooting purposes, and other certificate holders with the written authorisation of such a person, will be able to lend a firearm to a non-certificate holder. The certificate holder providing the written authorisation will be able to set restrictions on either the lending certificate holder or the borrower if they wish.
Finally, Amendments 170 and 171 extend the application of the offence of possession of pyrotechnic articles at live music events to Wales as well as England. This follows consultation with the Welsh Government, who agree that this new offence does not relate to devolved matters.
There is also Amendment 169B in this group, but I will wait to hear what the noble Lord, Lord Rosser, has to say before responding. In the meantime, I beg to move.
Earl Attlee (Con)
My Lords, I support these amendments, and I am particularly grateful for Amendments 166 to 169 and for the Minister’s explanation. The Minister has done everything she possibly can to meet my concerns. Unfortunately, however, she has to react to EU legislation, and the current regime will still have serious effects on collectors and businesses. But there is nothing we can do about it—it is a matter for the EU. In Committee I mentioned the Minister’s excellent officials, and I hope that she will encourage them to engage at EU level to try to get the EU to see that it ought to adopt our system of deactivation, which has worked so well for so many years. However, I am grateful to the Minister.
Lord Paddick
My Lords, I support Amendment 169B in the names of the noble Lords, Lord Rosser and Lord Kennedy of Southwark.
I accept the point made by the noble Viscount, Lord Hailsham, about reasonable cost as opposed to full cost recovery—or, at least, I could accept it if it was an approach the Government took across the board. However, in Committee I drew a parallel with the Immigration Act, where the Government proposed a philosophy of full cost recovery for visa applications and for the Immigration Service generally. I asked the Minister then, if she was not going to agree with amendments tabled to ensure full cost recovery for the issuing of firearm certificates, to explain why a different approach is being taken to the principle of full cost recovery when it comes to immigration. In particular, I asked her to refute the obvious allegation that the Government are discriminating against foreign nationals as against those who go hunting with guns for sport. I cannot recall the Minister specifically responding to that question; perhaps she could address it today.
Having apparently agreed in Committee to the principle of full cost recovery for firearms certificates, the Minister went on to say that there was a public consultation on these issues and that,
“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”.—[Official Report, 9/11/16; col. 1163.]
There are very good reasons why visa applications and the like should not be set at full cost recovery levels, yet the Government appear determined that they should be, without any public consultation or a transitional period. Can the Minister explain why foreign nationals are being treated differently from those who possess firearms?
I asked the Minister in Committee what consultation there had been with groups that represent immigrants or those who might apply for visas before the Government implemented full cost recovery for immigration visas. Can the Minister please answer that question for the record, as she was unable to do so in Committee?
Baroness Williams of Trafford
My Lords, perhaps I may first deal with some of the questions that have arisen out of Amendment 169A. Both the noble Lord, Lord Rosser, and my noble friend Lord Hailsham asked about the age threshold of 17—the noble Lord, Lord Rosser, probably thought that it was too low and the noble Viscount, Lord Hailsham, thought it too high. The age of 17 or over for borrowing rifles reflects the current position under Section 16 of the Firearms (Amendment) Act 1988—which the noble Viscount may have taken through Parliament himself.
The noble Viscount asked about firearms accidentally left in someone’s house. I understood that if you held a firearms licence yourself, it was okay for someone to leave something in your house, but I am not certain on that point so I will write to him.
The noble Lord, Lord Rosser, asked whether the provisions were new. The answer is both yes and no, because they amend current legislation. After careful consideration, we have decided to clarify and align the existing provisions for the borrowing of a rifle or shotgun to practise the hunting of animals and the shooting of game or vermin on private land. He also asked whether individuals with a qualifying criminal record are prohibited from possessing a firearm under Section 21 of the 1968 Act. It is for the lender to satisfy himself or herself that a borrower does not have a relevant criminal record when he or she is lending them a firearm.
The lender would have to be present. If the borrower needed to go to the toilet, for example, they would have to leave the certificate-holder with the weapon while they went to the loo.
I will just respond to Amendment 169B from the noble Lord, Lord Rosser. The Government agreed that fees for firearm certificates should be set on a cost recovery basis. I am happy to confirm, as I did in my letter to the noble Lord, that the cost of these certificates is expected to reflect the full cost of licensing once a new, more cost-effective online licensing system is in place. We already increased the fees for civilian firearm certificates in line with this objective, and Clause 117 allows us to set fees for licences issued by the Home Office and the Scottish Government. As I think I said in Committee, this will save the taxpayer around £700,000 a year.
Viscount Hailsham
My noble friend was good enough to say she would write to me and I am grateful. Would she include in her letter a response on what I would summarise as the service station point, and the point about when one’s wife or partner knows the whereabouts of the key to the gun safe?
Baroness Williams of Trafford
I certainly will. I would be very careful before going to my noble friend’s house, given the guns and their placement in various cars and things. I hope Viscountess Hailsham will be careful, too. I will certainly write to my noble friend on all those points.
Lord Rosser
I am sure the Minister’s response was clear but I did not hear it properly: did she say that the Policing Minister would write on a particular issue concerning firearms? If so, could she repeat that as I am afraid I did not pick it up?
Baroness Williams of Trafford
I just pointed out that we are both frustrated about this matter and that the Policing Minister will write to the national policing lead for firearms for an update on progress.
“(aa) is spherical, and”
(4A) The Secretary of State must publish a document setting out the technical specifications that apply for the purposes of subsection (4)(c) (“the technical specifications document”).(4B) The technical specifications document may set out different technical specifications for different kinds of weapon.(4C) The Secretary of State—(a) may from time to time revise the technical specifications document, and(b) where it is revised—(i) must publish the document as revised, and(ii) specify in it the date on which any changes to the technical specifications that apply for the purposes of subsection (4)(c) take effect.”
“Authorised lending and possession of firearms for hunting etc
(1) After section 11 of the Firearms Act 1968 insert—“11A Authorised lending and possession of firearms for hunting etc(1) A person (“the borrower”) may, without holding a certificate under this Act, borrow a rifle or shot gun from another person on private premises (“the lender”) and have the rifle or shot gun in his or her possession on those premises if—(a) the four conditions set out in subsections (2) to (5) are met, and(b) in the case of a rifle, the borrower is aged 17 or over.(2) The first condition is that the borrowing and possession of the rifle or shot gun are for either or both of the following purposes—(a) hunting animals or shooting game or vermin;(b) shooting at artificial targets. (3) The second condition is that the lender—(a) is aged 18 or over,(b) holds a certificate under this Act in respect of the rifle or shot gun, and(c) is either—(i) a person who has a right to allow others to enter the premises for the purposes of hunting animals or shooting game or vermin, or(ii) a person who is authorised in writing by a person mentioned in sub-paragraph (i) to lend the rifle or shot gun on the premises (whether generally or to persons specified in the authorisation who include the borrower).(4) The third condition is that the borrower’s possession and use of the rifle or shot gun complies with any conditions as to those matters specified in the lender’s certificate under this Act.(5) The fourth condition is that, during the period for which the rifle or shot gun is borrowed, the borrower is in the presence of the lender or—(a) where a rifle is borrowed, a person who, although not the lender, is aged 18 or over, holds a certificate under this Act in respect of that rifle and is a person described in subsection (3)(c)(i) or (ii);(b) where a shot gun is borrowed, a person who, although not the lender, is aged 18 or over, holds a certificate under this Act in respect of that shot gun or another shot gun and is a person described in subsection (3)(c)(i) or (ii).(6) Where a rifle is borrowed on any premises in reliance on subsection (1), the borrower may, without holding a firearm certificate, purchase or acquire ammunition on the premises, and have the ammunition in his or her possession on those premises for the period for which the firearm is borrowed, if—(a) the ammunition is for use with the firearm,(b) the lender’s firearm certificate authorises the lender to have in his or her possession during that period ammunition of a quantity not less than that purchased or acquired by, and in the possession of, the borrower, and(c) the borrower’s possession and use of the ammunition complies with any conditions as to those matters specified in the certificate.”(2) In consequence of the amendment made by subsection (1), omit the following—(a) section 11(5) of the Firearms Act 1968;(b) section 16 of the Firearms (Amendment) Act 1988.”
Baroness Chisholm of Owlpen
My Lords, I remind the House that Clause 120 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 liqueur. The clause adds “(in any state)” to the 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.
Amendment 171A seeks to exempt powdered and vaporised alcohol from the 2003 Act and instead to control it as a class C drug under the Misuse of Drugs Act 1971. Controlling powdered and vaporised alcohol as a class C drug would, in effect, prohibit the possession, production and distribution of these forms of alcohol.
Alcohol is a legal substance and the Government’s approach is to minimise the harm caused by alcohol by regulating its sale and supply. The 2003 Act seeks to reduce harm through promotion of the 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.
The Government believe that the focus on the four licensing objectives provides sufficient safeguards for the sale of alcohol. It would be contradictory and disproportionate to regulate the sale of liquid alcohol but make alcohol illegal when it is provided in another form, such as powder or vapour. The classification of harmful drugs in the 1971 Act is predicated on an assessment of their respective harms and in accordance with recommendations made by the Advisory Council on the Misuse of Drugs. The 1971 Act places a duty on the Secretary of State to consult the advisory council before bringing a substance within the controls provided for in that Act.
Quite apart from questions over the merits or otherwise of controlling powdered and vaping alcohol in this way, the absence of such a consultation having been carried out means it would be inappropriate to amend the 1971 Act in the manner proposed by this amendment. The Government are not aware of any evidence that the harms posed by powdered and vaporised alcohol are such that it is necessary to consider controlling it as an illegal drug. Powdered and vaporised alcohol are not substances of which the misuse is having or capable of having harmful effects sufficient to constitute a social problem, as is the test under the 1971 Act. Unless and until there is evidence to suggest that these forms of alcohol are meeting that test, I believe that a regulatory approach is the appropriate one.
Clause 120 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. On that basis, I would ask the noble Lord to withdraw his amendment.
Baroness Finlay of Llandaff
Before the noble Baroness sits down, will she undertake to ask the ACMD to put this issue on its agenda and keep a watchful eye on it in the future? I declare an interest in that I was a member of the ACMD when khat was being looked at.
Baroness Chisholm of Owlpen
I thank the noble Baroness for that question. Home Office officials have discussed powdered alcohol with the Department of Health and Public Health England and are very much keeping it under review. They may well have to do things at a later date but, for now, they are just keeping a watchful eye on it.
Lord Brooke of Alverthorpe
I am grateful to the noble Baroness, Lady Finlay, for her support and expertise, and to my noble friend Lord Kennedy for weighing in from my Front Bench with support for the amendment. As noble Lords might expect, I am disappointed with the Minister’s response. The Government have consulted —they consulted the drinks industry—but if they had consulted over a wider area, and particularly the committee to which the noble Baroness, Lady Finlay, referred, I think they might have got an entirely different view in reaching their judgment on this classification.
I know quite a lot about the four objectives that govern the Licensing Act and, quite frankly, they are totally inappropriate in trying to deal with this. They were drawn up in the context of liquid alcohol, and there was a list of all the forms in which it is produced, but this is quite different. This is a move in an entirely different direction. I feel that, rather than take a serious look at this, the Government are simply applying the existing legislation as best they can, but they will not be able to implement it.
I will take the Minister’s arguments away, have a look at them and decide whether to come back again at Third Reading. I beg leave to withdraw the amendment.
Baroness Chisholm of Owlpen
My Lords, Amendment 172 seeks to add,
“the provision of social or cultural activities”
to the list of licensing objectives. This would require licensing authorities to make licensing decisions based on this objective, such as placing conditions on licences with regard to the provision of social or cultural activities.
As I explained in Committee, the existing licensing objectives, as provided for in Section 4 of the Licensing Act 2003, seek to reduce harm, which can be evidenced. Licence conditions intended to reduce the level of harm can be easily understood—for example, a requirement to restrict noise levels. Requiring licensing authorities to consider the provision of social or cultural activities would run in contradiction to the other licensing objectives, all of which are aimed at harm reduction.
Importantly, the 2003 Act provides that when a licensing authority receives a compliant application for a premises licence or club premises certificate, it must grant the authorisation unless it receives “relevant representations”. In effect, this means there is a presumption that licensing authorities will grant a licence in respect to an application, with appropriate conditions, unless there are strong concerns in terms of the licensing objectives.
I respect the noble Lord’s intentions with regard to grass-roots music venues and cultural participation, and share his desire to see a vibrant music industry, but I do not feel it is appropriate to use the 2003 Act to pursue that goal. On that basis, I hope the noble Lord will be content to withdraw this amendment.
Lord Clement-Jones
I thank the Minister for her response and the noble Earl, Lord Clancarty, for his contribution. One of the key points that he made, and which we are making with this amendment, is that of course local authorities have to make judgments currently. That runs, to use phraseology used by the Minister herself, directly counter to the arguments that are being made by the Government. She talks about evidence of harm, as if somehow under the current objectives it is all cut and dried and the evidence is absolutely clear-cut, but the fact is that judgments are made by local authorities. I am sure that when the noble Lord, Lord Kennedy, was a councillor in Southwark, he had a very enlightened approach to these matters, but these things are a matter of interpretation, and how you treat the evidence of harm is a subjective matter. In many cases, strong concerns might be disregarded because there are other, supervening objectives that a local authority thinks are important, or it may give more time for remedy.
There are all sorts of aspects, so to regard the current set of objectives as somehow pristine and able to be interpreted with huge clarity by local authorities, in contrast to this confused, woolly cultural objective, is only to confuse the issue. It is really a way of saying that the status quo is fine. But the status quo is not fine, and local authorities need some further guidance on these matters. I am not going to push this amendment further at this stage, but I hope there is a way in which further guidance or some other nudge towards a better solution for our night-time and grass-roots music venues is achievable. I am sure from the nods that I am receiving from the Government Front Bench that there is some sympathy for that approach. Now I am getting completely the reverse—clearly I had lulled myself into a false sense of security, which is always a big mistake in this House.
I hope the drip-drip of the fairly incessant rhythm—perhaps that is the right phraseology to use in connection with live music venues—of the campaign to ensure that we keep our live music venues has some effect. I entirely agree with the noble Lord, Lord Kennedy, that the night-time tsar in London is a fantastic new development, and I hope that other combined authorities will follow what London is doing in that respect.
I believe the Home Office also has responsibility in this area to help to preserve our venues, rather than simply stonewalling and saying, “We’ve got a very fine Licensing Act as it is and we don’t need any further objectives”. When we come to our next debate, I am sure the Government will make the same argument but they may find a rather different response when it comes to a vote. In the meantime, I beg leave to withdraw the amendment.
Lord Kennedy of Southwark
My Lords, Amendment 173, moved by the noble Baroness, Lady Deech, adds to the general duties of licensing authorities a duty of securing accessibility for disabled persons. The noble Baroness raises an important issue; we debated the matter under another amendment, which sought to add in the provisions of the Equality Act in Committee.
It is right to say that people running licensed premises should do much more to ensure that the premises are accessible by disabled people, so that they can go out with their friends and family and enjoy themselves on those premises. It is right that disabled people are able to get access to those premises. When the Minister responds to the debate we may hear that there are general duties under the Equality Act 2010 in force already and that adding a specific amendment does not add anything to the statutory requirements already in force, as noble Lords have said. I hope that we can get a very careful explanation of why that is the case. The Government have a general duty to ensure that the law is properly applied, so I hope that they will use this opportunity to say clearly how they can ensure that that actually happens.
The problem often is whether licensed premises owners fully understand what their obligations are—or, if they do understand, whether they do anything to make those reasonable adjustments. We need to have a very careful explanation from the Minister in response to the debate, because we have the whole issue of the guidance, what review mechanisms are in place, and how the Government are going to ensure that the mainstream access to buildings to which the noble Baroness, Lady Deech, referred actually happens.
Baroness Williams of Trafford
My Lords, I thank the noble Baronesses, Lady Deech and Lady Thomas of Winchester, not only for their powerful speeches in this debate but for taking the time to speak with me over the past few weeks on the subject of this amendment. I also commend my noble friend Lord Shinkwin for the sheer quality of his speech and everyone who has spoken in this debate for their persistence in seeking to secure the rights of disabled people.
I am very sympathetic to the issues that have been raised on this matter. Licensed premises such as pubs, restaurants, theatres and cinemas are places where many of us choose to socialise and are therefore an important part of our daily lives. Too many of these venues are difficult for disabled people to access. The same is true of other, non-licensed businesses, too. The issue before us is whether we should use the regulatory framework provided for in the Licensing Act 2003 as a mechanism to enforce the provisions of a quite separate piece of legislation.
The noble Baroness, Lady Deech, and others have answered this question in the affirmative, arguing that it should not be left to disabled people denied access to licensed premises to have to fight on their own to secure their rights. The contrary argument, which I set out in Committee, is that this amendment is seeking to skew the regulatory regime in the 2003 Act and use it for a purpose for which it was never intended. The amendment potentially puts us on to a slippery slope. If we can use the 2003 Act to enforce the obligations placed on businesses by other enactments, where does this stop? Are licensing authorities then to be charged with, for example, ensuring that pubs and restaurants are paying the minimum wage or complying with other aspects of employment law?
While it could be argued that the particular challenges faced by disabled people make this amendment a special case, we should not seek to downplay the fact that there will be a cost to business. I accept that the amendment does not place any new direct obligations on licensed premises as a class of business, as they are already subject to the requirement to make reasonable adjustments. However, if we are expecting licensing authorities to act as an enforcement agency in this regard, there will unavoidably be a cost to them in discharging this new function. As the cost of the licensing system properly falls on licensees rather than the council tax payer, consequently any increase in costs for licensing authorities will need to be passed on through increased licensing fees. We must take this into account when considering the amendment.
I have heard the powerful voices expressed in the debate here today. I cannot ignore the strength of feeling in your Lordships’ House. I believe that there is scope for compromise around possible amendments to the Licensing Act, which would work with the grain of the existing licensing regime. I cannot say more at this stage, as there is further work to do to scope such a possible compromise, but nor can I give the noble Baroness, Lady Deech, any undertaking today that I will be able to bring forward a government amendment at Third Reading. I hope, however, that the noble Baroness will agree to move forward on the basis of the preliminary discussions that we have had earlier this afternoon and, if not, perhaps we should come to a decision on her amendment today.
Baroness Deech
My Lords, I know that the Minister is sympathetic, but I still find the arguments unpersuasive. The Licensing Act is already used to enforce other Acts, for example, about children. If there is a cost to business, or a cost that is going to be passed on, are we to say that we can never make improvements for disabled people because it might cost somebody something? That simply will not do. I believe the Minister is suggesting that any amendment that the Government may bring forward would not remove the burden from disabled people but require them to make representations, make phone calls and use the internet to fill in forms and so on—when we know very well that even if you are able, trying to deal with local authorities on this sort of thing can be a nightmare. I am simply saying that access for disabled people—and, as the noble Baroness said, for the elderly, which is all of us eventually if not already—should be mainstreamed.
All parties in this House, some more than others, claim to have as their raison d’être improving the life of the disadvantaged and the vulnerable. To refuse to do this when presented with a straightforward, effective amendment is incomprehensible to me and goes against what I believe this House stands for. The amendment would make adjustments anticipatory and remove the onus from disabled persons. I do not believe that any compromise that the Minister might offer, well-disposed though she is—I know that she spent a lot of time on this—would meet that bill. Given the mission of this House, I do not think that we should talk the talk; I think that we should walk the walk. On that note, I wish to test the opinion of the House.
Lord Rosser
We certainly support the objectives of these amendments. As there was in Committee, there have been plenty of examples of the damage that is currently being done through these terminals and of the problems that we now face.
When the matter was discussed in Committee, the Government said that they understood the concern that such gaming machines could fuel problem gambling and that they were committed to reducing the risks of potential harms associated with such machines. They did not express any enthusiasm for adopting the amendments in Committee and, as has already been mentioned, they said that there was already a review under way which had been announced on 24 October. One assumes that the Government will be looking for the review to make recommendations which will enable them to implement the commitment they said they had in Committee to,
“reducing the risks of potential harms associated with such machines”.—[Official Report, 9/11/16; col. 1231].
Perhaps the Minister could indicate that that is how they are looking at this review and expect it to produce recommendations which will enable them to stick to the commitment that they enunciated when the matter was discussed in Committee.
As has already been called for—and I would do the same—it would be helpful if the Government could indicate now what the timescale is. They said in Committee that the call for evidence period would close on 4 December, which has now passed. I shall not ask the Government on 7 December what their conclusions are from the call for evidence but it would be helpful to know by when they will have come to conclusions. They said in Committee that, following the close of the period of the call for evidence, they would consider proposals based on robust evidence provided to assist in their decisions.
Baroness Chisholm of Owlpen
My Lords, as the noble Lord, Lord Beecham, has explained, these amendments would have the effect of devolving power over licence conditions for gambling premises and gaming machines to local authorities. Such conditions would, among other things, enable licensing authorities to impose minimum staffing levels on premises with such machines. I thank the noble Lord and the right reverend Prelate the Bishop of Bristol for again bringing this important matter to your Lordships’ attention. Let me emphasise that the Government are alive to the concerns about the dangers that fixed-odds betting terminals can pose.
It is worth reiterating that, as we speak, the Government are holding a review into the regulation of gaming machines, gambling advertising and the effectiveness of social responsibility measures on gaming machines, with a specific look at potential harm caused to players and communities. As part of this, we are liaising closely with the Local Government Association, among others, and we have received submissions related to the devolution and/or creation of additional powers for local authorities which we will of course consider alongside other proposals and evidence received.
I emphasise in particular that, as part of the review, the Government and the regulator, the Gambling Commission, are carrying out a thorough process which will look at all aspects of gaming machine regulation, including categorisation, maximum stakes and prizes, location, number and the impact that they have on players and communities in relation to problem gambling and crime among other things. All of these factors are potentially relevant and interrelated, and all should be considered together when looking at whether changes could or should be made to current gambling entitlements. We believe that the correct mechanism for looking at these issues is in collaboration with the regulator, the Gambling Commission, drawing on the best evidence available and subject to open consultation.
In addition, before we take any decision on this issue, we would want to ensure that the following risks were properly considered and consulted on. Any local authority which sought to exercise a power to change the number of fixed-odds betting terminals allowed on licensed betting premises would be likely to find its decision the subject of legal challenge. If these legal challenges are considered robust enough, we may be in a position of devolving a power that could not be effectively deployed. Local authorities have had a number of high-profile legal challenges from bookmakers on planning matters and may be reticent about utilising additional powers if it led to costly and protracted legal cases. We would therefore want to consult with the Local Government Association and local authorities on this issue. Again, I reiterate that the current review process is the appropriate mechanism to assess this, rather than immediately launching into these amendments to the Gambling Act.
We are also mindful of the possibility that piecemeal reform could give rise to unanticipated consequences. For example, if a local authority decides to reduce the number of fixed-odds machines, it may have the effect of encouraging operators to seek to open additional premises, furthering the problem of clustering.
We have already taken steps to tighten the controls on these machines and we have set out our plans for the review of gaming machines, gambling advertising and social responsibility which will include a close look at the issues related to fixed-odds betting terminals. I emphasise that we are taking this very seriously and that the review is looking into all these issues. When the review was announced on 24 October, it was stated:
“The review will be considering robust evidence on the appropriate maximum stakes and prizes for gaming machines across all premises licensed under the Gambling Act 2005; the number and location of gaming machines across all licensed premises; and social responsibility measures to protect players from gambling-related harm (including whether there is evidence on the impacts of gambling advertising and whether the right rules are in place to protect children and vulnerable people).
The review will include a close look at the issue of B2 gaming machines … and specific concerns about the harm they cause, be that to the player or the communities in which they are located.
In launching this review I want to ensure that legislation strikes the right balance between allowing the industry to grow and contribute to the economy while ensuring consumers and communities are protected, including those who are just about managing”.—[Official Report, Commons, 24/10/16; col. 1WS]
On the timetable for the review, as noble Lords know, the call for evidence closed on 4 December. An enormous amount of evidence was generated and there was a great deal of interest from the general public as well as from a variety of interest groups, local authorities, trade bodies and industries, and we will be looking in depth at the evidence that was submitted before considering proposals, which we hope to announce next year.
Given that this process is in train and that we are taking it extremely seriously, I invite the noble Lord to withdraw his amendment.
Lord Rosser
Unfortunately, I was not able to get to the meeting that was organised yesterday but, bearing in mind that previously the Government’s stance has been not to go down the road of these amendments, it would be of some use if the Minister made it clear whether or not, in the light of what has been said in the debate, they are going to take any note of what does or does not emerge from what has happened in Scotland, which has already reduced the limit, and whether the Government themselves are going to initiate some sort of investigation into what the impact has been in Scotland. I think the Government’s argument has been that any change should be based on hard evidence. That is one obvious source of hard evidence. It would be a bit disappointing if there was any indication by the Government that they are not actually going to pay very much notice to what does or does not happen in Scotland as a result of the reduction in the limit.
Baroness Williams of Trafford
My Lords, I thank my noble friend Lady Berridge for explaining the reasoning behind these amendments. I thank her and other noble Lords who came to the meeting yesterday and the one that I held—it seems like a few weeks ago, but it was probably about one week ago. I thank them for being so engaged in this issue.
Amendments 174 and 175 look to lower the drink-driving limit in England and Wales from 80 milligrams to 50 milligrams of alcohol per 100 millilitres of blood, and further to 20 milligrams for novice and probationary drivers. In responding to these amendments, I start by posing a question: what does the number 80 mean to noble Lords or, indeed, anyone who enjoys a drink? Can any noble Lord in this Chamber effortlessly equate it to pints of beer or glasses of wine, taking into account metabolic rate, age, weight and what one has eaten for lunch? I suggest that it is unlikely. Instead, I would like to think that noble Lords in the Chamber today are sensible enough to drink very little, or indeed nothing at all, before driving. Noble Lords and most of society are part of the silent, self-regulating majority that makes our roads in Britain among the safest in the world.
However, the evidence shows that it is precisely such individuals that these amendments would affect. Those unlikely to commit a drink-driving offence in the first place would be put off drinking at all. Meanwhile, no evidence exists to support the notion that reducing the limit would have any deterrent effect whatever on the most dangerous group of individuals. The noble Lord, Lord Brooke of Alverthorpe, alluded to the sick and selfish types—the high-level frequent offenders who flout the current limit and would pay little regard to a new one.
The fact is that the pattern of alcohol levels in drivers is practically the same in most countries, irrespective of their limits, and our police resources are not limitless. If we stretch enforcement activity over a wider cohort of drivers, we will effectively lower the chance of the most dangerous being caught and taken off our roads. I therefore suggest that a lower limit is likely to be counterproductive. Evidence showed that this is exactly what happened in the Republic of Ireland, where the death rate on the roads increased by about 17% when the limit was reduced several years ago. The number of drink-drive arrests stayed pretty much the same. Instead, it is the view of the Government that we must prioritise the targeting of the selfish, dangerous minority who cannot be deterred by a change in the law which they are, in any event, totally disregarding.
The drink-driving limit for England and Wales strikes an important balance between safety and personal freedom. By retaining the present limit, we are not criminalising those who drink a small amount a long time before driving; we are pursuing the most dangerous individuals. Meanwhile, our advice remains unchanged: do not take the risk by driving after you have had a drink. I think we all share a common objective of wanting to see a reduction in the number of people killed and injured on our roads as a result of drink-driving. However, I put it to your Lordships that the most effective way to achieve this is not through these amendments but through the continued robust enforcement of the current law.
In response to my noble friend Lady Berridge and the noble Lord, Lord Rosser, we will review any new evidence that may emerge, including in relation to the change in the law in Scotland. We will naturally be interested in any reports produced by the Scottish Government or Police Scotland, or any other independent research. For the reasons I have set out, we remain unpersuaded of the case for changing the current drink-driving limit. We will, however, continue to look with interest at any new data or information emerging from Scotland. On that basis, I hope that my noble friend will withdraw her amendment.
Baroness Berridge
My Lords, I am grateful to noble Lords who supported this amendment and particularly to the noble Lord, Lord Paddick, for pointing out that this is an increasing problem, proportionately, within the number of deaths on our roads. I was not surprised to hear my noble friend the Minister refer to the enforcement point on which the Government rely in this matter. We must pay tribute to our police but the Police Federation supports a reduction in the alcohol limit. If that were the main solution and there would be no effect from this amendment, I do not think that the police would be asking for a reduction in the limit.
I was disappointed that my noble friend did not take on board the point that 60% of these accidents involve young people—I think that it rises to 80% in rural areas. These are not the selfish and dangerous drivers. Interpretation of the evidence is that this provision would have an effect, as the noble Baroness, Lady Hollins, outlined. We will always be left with a rump of people who disregard the law completely but the NICE study on this outlined that changing the limit down to 50 milligrams, or any change, would affect behaviour across the board.
I have to join with other noble Lords in saying that I am grateful to my noble friend the Minister for outlining that the advice is still, “Don’t take the risk—don’t drink and drive”, because it was not what was outlined in the Daily Mail today, where the message was actually quite disturbing. I am also disturbed that my noble friend has not been able to outline any other action to try to reduce this trajectory of deaths, which has flat-lined at 240 a year for five years. No other solution is being put forward by the Government to say what they will do to trigger a decline in those deaths.
Lord Rosser
The noble Lord, Lord Moynihan, referred to Her Majesty’s Opposition. I make it clear to him that he continues to have our full support in his objectives and in the amendment that he has tabled. There is certainly no change on that score. As he said, prohibited substances are taken to gain an advantage in sport over fellow competitors. They are taken to produce a false result that is not determined purely and solely by the unaided skill and effort of each competitor but one that will, at the very least, be influenced or, at worst, determined by the taking of a substance which improves performance and creates one unrelated to the skill or effort of the competitor concerned. It is a form of fraud. It is cheating not just fellow competitors but the public, who pay to come to watch the sporting event in the belief that they will see a fair competition with competitors competing on a level playing field. As the noble Lord, Lord Moynihan, pointed out, in recent years many countries have criminalised the use of performance-enhancing drugs in sport or enacted legislation that criminalises the trafficking of such drugs.
I am curtailing what I had intended to say, but I want to refer briefly to the Government’s response in Committee. The Minister said that,
“the Government believe that rather than tackling this through legislation, it should be a matter for sports bodies”.
That statement appears to indicate that the Government would never favour making a criminal offence, as provided for in this amendment. However, as the noble Lord, Lord Moynihan, said in Committee, one cannot say that leaving this to sports bodies has exactly been a staggering success up to now. It is precisely because it has not been a staggering success that we have the problem we do. As the noble Lord, Lord Moynihan, pointed out, a number of other nations have legislated. As he also pointed out, he has taken the example of the Germans, the Italians and the Dutch, who have focused on the fact—this is crucial—that it is not just the athlete but the entourage who need to be criminalised. It is the entourage we have to make sure we—to put it bluntly—get at because they are at the heart of the problem at least as much as the athlete. The noble Lord also indicated that the deterrent effect in those countries of putting legislation on the statute book has already been effective.
That is why I come back to the response that we got from the Government in Committee. We got a clear statement that,
“the Government believe that rather than tackling this through legislation, it should be a matter for sports bodies”.
Having said that, the Minister went on to say:
“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”.—[Official Report, 9/11/16; col. 1240.]
If you want to give a clear indication of the direction in which you wish to go, how can you say at one moment that the Government believe that, rather than tackling this through legislation, it should be a matter for sports bodies and then, a little later in the same speech, say that a review is taking place to assess whether stronger criminal sanctions are required and that the review is expected to be published before the end of the year?
In giving their response, I hope that the Government will at least clarify whether they believe this is a matter that should be left to sports bodies or whether they accept that there may well be a need for criminal sanctions and going down the road of criminal offences, which is a key part of the amendment that the noble Lord, Lord Moynihan, has tabled. There is not much point in talking about a review if the Government have already made up their mind—as one could interpret from the speech in Committee—that this is a matter for the sports bodies and not the law. I hope, however, that the Government will make clear that they accept that criminal sanctions and the creation of new criminal offences may well be needed to address this problem, as the noble Lord, Lord Moynihan, said in his comments on his amendment.
Baroness Chisholm of Owlpen
My Lords, it is a great honour to be in the presence of two such world-renowned athletes. Their Lordships look so well that it has certainly given me great inspiration to go back to the gym as soon as possible.
I am grateful to my noble friend Lord Moynihan for again raising the important issue of tackling doping in sport. As the House will be aware, the Government are reviewing the issue of criminalisation. The review is now in its final stages and we hope we will soon be in a position to publish. In finalising the report, we will naturally want to take into account the views expressed by noble Lords in this debate.
Anti-doping is a technical area and it is important to stress here that undertaking a review requires a comprehensive evidence base before considering any possible legislative options. The Government are very much alive to the issues and are actively examining what more can be done to enhance our national approach to doping, including the possibility of criminal sanctions, to uphold the highest standards of integrity in sport. 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. Until now the Government’s view has been that, rather than through legislation, this should be a matter for sports bodies to sanction. The central question for the current review, however, is whether this approach still holds good.
It is important to underline that serious doping is already covered under existing domestic criminal legislation. Under the Misuse of Drugs Act 1971 and the Medicines Act 1968, the trafficking and supply of many doping substances is a criminal offence, carrying a penalty of up to 14 years’ imprisonment. Tough sanctions are also already in place via the 2015 World Anti-Doping Code. The code includes automatic four-year bans for drug cheats and support staff who are found guilty of doping. Such a ban forms a significant part of an athlete’s relatively short career, and it would also mean they would miss an Olympic Games cycle.
The Sports Minister, Tracey Crouch, is member of the foundation board of the World Anti-Doping Agency and attended its November meeting, where there was acknowledgement from foundation board members that the current code would be subject to further revision in the near future. There was also a call to revisit the discussion around athletes convicted of doping offences being banned from the Olympic Games.
The Government remain committed to tackling doping in sport and we will continue to work with UK Anti-Doping and our sport stakeholders to ensure that our athletes can compete in a clean sport environment. If the evidence is clear that stronger sanctions are needed, we will take action. There is a process in train—indeed, nearing completion—to ascertain whether the evidence points in the direction advocated by my noble friend. I therefore respectfully suggest to him that until we have completed the review, it would be premature to legislate on this matter in the manner proposed in this amendment. My noble friend has suggested that the Government instead pursue a different course by taking a power to implement the review’s findings through regulations. This is a tempting offer, but I still believe that would be putting the cart before the horse, and the House and the Delegated Powers Committee would rightly chastise the Government for legislating on an important area of public policy through a wide-ranging delegated power.
I recognise that my noble friend has been pursuing this issue for a great many years. I think he suggested that the leadership of WADA is conflicted and that independence is needed. At the most recent meeting of the World Anti-Doping Agency governing foundation board, approval was given for a review of WADA’s governance. Furthermore, there will also be a review on non-compliance sanctions. As a regulator, WADA needs teeth, and we are supportive of such an approach. I understand my noble friend’s frustration; none the less I hope he will bear with us for a little while longer. The Minister for Sport, Tracey Crouch, would be very pleased to meet my noble friend next week. In the meantime, I hope he will agree to withdraw his amendment.
Lord Moynihan
I am grateful to all noble Lords who took part in this debate. I hope it is not too mischievous to point out that over the last 30 years—I think it is about 30 years since I was Minister for Sport and had the first review of this matter—we have had a whole range of reviews. I welcome that Tracey Crouch announced a further review nearly a year ago, but it is unfortunate that the timing of its publication may be a matter of a couple of days after Third Reading of the Bill and thus preclude the opportunity for us to consider it and reflect it in the legislation.
I will very briefly respond to questions or comments that were made in the debate. In response to the noble Lord, Lord Kerr, I accept that improvements could be made to the wording of the amendment. I had hoped that my noble friend the Minister would have accepted that we were heading in the right direction, and taken it away with me and the likes of the noble Lord, Lord Kerr, to improve the wording before we got to the next stage, but sadly that was not to be this evening.
I stand second to none in recognising that over many decades the noble Lord, Lord Campbell, has not only been a pioneer but led the campaign to criminalise the worst excesses of doping, and his speech bore testimony to that. He said some very kind things, along with a slightly naughty reference to the benefit that I had from not taking growth hormones—diuretics would have been more appropriate for me, to keep my weight down in the coxswain seat. However, he is wrong on one point: very sadly I did not return from Moscow with a gold medal, but with a silver medal. I have subsequently learned that many of the athletes competing in that regatta were not only on drugs but subsequently sued the German Government for the damage to their health. They won and retained their gold medals. Such is the policy pursued by the International Olympic Committee on 20th-century gold medallists.
I echo what the noble Lord, Lord Addington, who was concerned about the wider application, said. Again, that could have been covered in an improvement to the amendment, but I recognise the point that he made. However, the amendment did not find favour with the Government at this stage and we may not have that opportunity.
I hold out hope that many of the points that the noble Lord, Lord Rosser, made will continue to reflect the position of his party. He has personally given a lot of support on this and shown interest in it during the passage of the Bill, and I am very grateful to him, as I am to the noble Lords on the Front Bench opposite, both of whom have been regularly in touch with me on the subject. It is a pity that the Government have focused on the review as the cornerstone of the reason why we should not be moving ahead now. I genuinely believe we have an outstanding set of Ministers in the DCMS. Karen Bradley and Tracey Crouch in particular have done a lot of very good work in this direction, and I do not think I would be speaking out of turn to say that I have heard them on a number of occasions at least put forward the benefits of considering the criminalisation of doping in sport. I hope therefore that the Government will be open-minded in their review on returning to this subject. There is a momentum, both internationally and nationally, towards legislation on this subject, and that momentum needs to continue. Thanks to the noble Lords who participated in a series of debates, it is continuing in the right direction in your Lordships’ House.
In closing my remarks, I very much hope that that the Minister will convey to her colleagues what she has said about the importance of the review and that they will seriously take it on board. In addition, I hope that an early opportunity will be found for your Lordships’ House to consider the findings of that review and to discuss this in more detail, including the possibility of finding an opportunity to legislate—if that is the wish of your Lordships—at a future stage. However, I recognise that we need to look at the review, take it into account and wait on its publication. With something of a heavy heart, after campaigning for this for some 30 years, ever since the first summit in Copenhagen, when I was Minister in 1987, I beg leave to withdraw the amendment.
“(5A) If on a review under subsection (4) the Minister decides to uphold the Treasury’s decision to impose the penalty and its amount, or to uphold the Treasury’s decision to impose the penalty but to substitute a different amount, the person may appeal (on any ground) to the Upper Tribunal.(5B) On an appeal under subsection (5A), the Upper Tribunal may quash the Minister’s decision and if it does so may—(a) quash the Treasury’s decision to impose the penalty;(b) uphold that decision but substitute a different amount for the amount determined by the Treasury (or, in a case where the Minister substituted a different amount, by the Minister).”
Baroness Chisholm of Owlpen
My Lords, financial sanctions are an important foreign policy and national security tool. Their effective implementation and enforcement are vital to their success. In order to ensure that financial sanctions enforcement is appropriately targeted and proportionate, it is important that a range of alternative enforcement options are available, such as the monetary penalties provided for in Part 8 of the Bill.
The permitted maximum penalty is set at the level of £1 million or 50% of the value of the breach. This level is considered to be adequate to disgorge profits made from financial sanctions evasion and provide a sufficient incentive to improve future compliance in cases where prosecution is not warranted.
In its current form, the Bill states that a decision to impose a civil monetary penalty will be made by the Treasury, and the person upon whom a monetary penalty is imposed has the right to request a review of the decision by a Minister in person. The Minister may uphold the decision and the amount of the penalty, uphold the decision but change the amount of the penalty, or cancel the decision. The Bill does not currently provide the individual with any right of appeal, although both the decision of the Treasury and that of the reviewing Minister are within the scope of a judicial review application. Following further consideration, however, we have concluded that it would be appropriate to provide for a right of appeal to the Upper Tribunal, and Amendment 177 amends the Bill accordingly. Such an appeal route will ensure that there can be a full-merits hearing on points of law and fact, whereas a judicial review hearing in the High Court can examine only points of law.
Amendments 178 and 179 address a separate point. Clause 141 permits the Treasury to extend temporary sanctions regimes and temporary designations to the Crown dependencies and the British Overseas Territories, to ensure that financial sanctions take effect in these territories “without delay”, as required by the resolutions of the United Nations Security Council. However, we have always been clear that the power will not be used in respect of any territory that takes its own measures to apply financial sanctions without delay. In recent weeks the Government of Jersey have taken their own legislative steps to implement sanctions without delay. That being the case, the Government of Jersey have requested that reference to them be omitted from Clause 141. Amendments 178 and 179 give effect to that request. Of course if any other Crown dependency or overseas territory takes similar steps to Jersey, the power in the clause will not be used in relation to that territory. However, as the other territories have not yet done so, it is prudent to retain them in scope for the time being. I beg to move.
Monday 12th December 2016
(7 years, 4 months ago)
Lords ChamberRead Hansard Text Amendment Paper: HL Bill 72-III(a) Amendment for Report, supplementary to the third marshalled list (PDF, 54KB) - (9 Dec 2016)
19:05 - Division on Amendment 187 - Ayes: 113 / Noes: 236 - Amendment 187 disagreed.
19:40 - Division on Amendment 187A - Ayes: 160 / Noes: 149 - Amendment 187A agreed.
20:25 - Division on Amendment 188 - Ayes: 136 / Noes: 130 - Amendment 188 agreed.
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Baroness Chisholm of Owlpen (Con)
My Lords, as we have heard, this group of amendments relates to the provisions in Clauses 144 and 145, which confer powers on police and immigration officers to require a suspected foreign national to state their nationality after arrest and to produce nationality documents where required. Following the debate in Committee, government Amendments 180, 181 and 194A seek to address concerns raised then by the noble Baroness, Lady Hamwee, and the Joint Committee on Human Rights. The noble Baroness has tabled a number of amendments of her own, designed to push the Government a little further, but before I respond to these I shall explain the government amendments.
Amendment 180 concerns the situation where a UK national does not possess a passport and is otherwise suspected to be a foreign national. As recommended by the JCHR, this amendment clarifies that officers are able to take into account alternative documentary evidence which would establish an arrested person’s entitlement to a British passport. Supplementary guidance will also be provided to make it clear to officers what specific evidence would normally be sufficient to establish nationality and can therefore be taken into account in that assessment. Given this, I do not believe that Amendment 180A, which seeks a similar end, is necessary.
Amendment 181 will enable us to pilot these provisions on a limited basis to ensure that police processes are robust and that there are no adverse consequences for black and ethnic minority British nationals. Following the pilot and in advance of the rollout of these provisions, we will lay a report before Parliament on the outcome and effectiveness of the pilot. Among other things, the report will include a full equality impact assessment. Given this undertaking, I hope that the noble Baroness will agree that Amendments 181A and 181B are also unnecessary. The noble Baroness wanted to know where the pilots will take place. Subject to agreement with the police, one pilot will take place in Hampshire and the other has yet to be agreed.
Amendments 179A and 179B seek to make it clear that an officer may impose the requirements in Clauses 144 and 145 only when it is reasonable to do so. However, it is already the case that officers may only ever act on reasonable grounds when exercising their powers. Accordingly, I put it to the noble Baroness that there is no need to write this into the Bill. Moreover, in respect of the offences in these clauses there is, in each case, a reasonable excuse defence.
Finally, Amendment 181BA seeks to provide for a post-legislative review of not just the provisions in Clauses 144 and 145 but also the powers conferred by the Immigration Act 2016 to search for and seize driving licences held by an illegal migrant. There is an established procedure for post-legislative review of all legislation, which takes place three to five years following Royal Assent. Consequently we do not need to make express statutory provision for this.
While this is not the occasion to reopen the debates on last Session’s Immigration Bill, I shall just make a couple of observations about the new powers in relation to driving licences. During the debates last Session on these powers, my noble friend Lord Bates made a number of commitments addressing the concerns then raised by the noble Lord, Lord Paddick, including a commitment to pilot the power to search for a driving licence in one or two police areas. The pilot will test the operational details so that any impacts can be identified by the pilot scheme and addressed. My noble friend also committed to issuing guidance to police and immigration officers on the operation of these powers and to a public consultation on that draft guidance before implementation. The consultation will raise awareness of these powers and provide an important gateway through which communities will be able to consider and comment on, among other things, appropriate safeguards.
It is also unnecessary to set up an ad hoc independent review every time we wish to scrutinise police forces’ use of specific powers; Her Majesty’s Inspectorate of Constabulary exists for this purpose. The inspectorate independently assesses police forces and policing activity in the public interest. The PEEL inspection programme —an annual, all-force inspection which assess forces’ efficiency, effectiveness and legitimacy—considers both the extent to which forces use their powers effectively and the extent to which forces treat the people they serve with fairness and respect. In addition, the Home Secretary has the power to commission HMIC to inspect and report on any particular issue if she feels that it requires greater scrutiny than it has received in the course of rolling inspection programmes.
HMIC has a strong track record in shining a light on police use of intrusive powers and has not pulled any punches in its reports on stop and search. It is largely due to HMIC’s findings that the previous Home Secretary announced increased scrutiny of road traffic stops through their incorporation into the best use of the stop and search scheme. We are therefore confident that the necessary systems to provide effective scrutiny of these powers are already in place. The clear statutory safeguards against the misuse of this power, the commitment to a pilot and a public consultation and the role of HMIC mean that this amendment is unnecessary.
The noble Baroness also asked about the Delegated Powers and Regulatory Reform Committee’s recommendation. As this is essentially a commencement power, we are not persuaded that the regulation should be subject to a parliamentary procedure. However, I assure the House that we will set out in the regulations the duration of any pilot, and I have already undertaken to lay a report before Parliament on the outcome and effectiveness of the pilot before we commence these provisions more widely.
I trust that this rather lengthy explanation of the government amendments will provide the necessary reassurance to the noble Baroness, Lady Hamwee, and that she will therefore be content to withdraw her amendment.
Lord Kennedy of Southwark
Before the Minister sits down, will she address the point I made earlier about page 163 where “reasonable” is used a number of times in respect of suspects but not of police officers. Why is that distinction there? If the Minister would like to write to me, that is fine, but I think it is odd that there is that distinction.
Baroness Chisholm of Owlpen
I will write to the noble Lord to clarify that point.
Baroness Hamwee
My Lords, I am grateful to the noble Lord, Lord Kennedy. When the noble Baroness writes, perhaps she can also explain this about what the Government did in the Immigration Act 2016. For this purpose, I simply refer to Section 43, which introduces a new paragraph in Schedule 2 to the 1971 Act providing for power to be exercised only if the authorised officer has “reasonable grounds” for believing that, in this case, the driving licence is on the premises. The very fact that that terminology is used in legislation which we passed a mere few months ago must raise the question of why it is not included in the comparable clause in this Bill. I know that the noble Baroness cannot answer this at the moment, but I hope that as well as writing, she might be able to discuss this with officials. It is an intrinsically important point, but also a technical one, as to why it should not be included in this Bill. Perhaps we can come back to this at Third Reading. I am not of course expecting her to do anything other than nod sympathetically, as she is doing.
The Delegated Powers and Regulatory Reform Committee will no doubt consider the Government’s response, but I note that on the question of the affirmative procedure, the Minister said that she did not think that these regulations should be subject to parliamentary procedure. The committee also suggested, or would require, that the Secretary of State should consult interested parties before making the regulations. I am not sure—I might have missed it—whether she referred to the maximum duration of pilots. I accept that there will be post-legislative reviews, and that everything has to be kept under review, but it is the importance of the subject matter which led us to raise the point about requiring an ad hoc review.
I do not know whether the Minister has any information as to whether the pilots and guidance under the Immigration Act are going to be introduced in tandem with, and in the same areas as and so on, the pilots under this Bill. Does she have any information about that?
Baroness Chisholm of Owlpen
I think that is still under discussion at the moment with various authorities.
Baroness Hamwee
My Lords, we will see, but I am glad to note the Home Office’s acceptance of the importance of the issue, which I never had in doubt. I beg leave to withdraw the amendment.
“Pilot schemes
(1) The Secretary of State may by regulations made by statutory instrument provide for any provision of sections 144 and 145 to come into force for a period of time to be specified in or under the regulations for the purpose of assessing the effectiveness of the provision.(2) Regulations under subsection (1) may make different provision for different purposes or different areas.(3) More than one set of regulations may be made under subsection (1).(4) Provision included in regulations under subsection (1) does not affect the provision that may be included in relation to sections 144 and 145 in regulations under section 160 (commencement).”
Lord Kennedy of Southwark
My Lords, I very much support all the amendments in this group. We have made tremendous progress in recent years in seeking to redress the effects of homophobic legislation. Terrible injustices were suffered, and previous changes to the law and the amendments are intended to go some way to correct that and make amends. They have my full support and that of my party.
Of course, we need to go further in Northern Ireland, but this is an important step. I want to see the day when LGBT people living in Northern Ireland have exactly the same rights, protections and freedoms as LGBT people living in England, Scotland and Wales. We are a United Kingdom, albeit with devolved institutions, but LGBT people should have the right to get married in Northern Ireland; that must be urgently addressed by the Northern Ireland Assembly and the ministerial team led by the First Minister and Deputy First Minister in Stormont. It is wrong to keep using the petition of concern procedure to block progress in this matter. The UK Government must play their role in championing the rights of LGBT people in Northern Ireland by raising this issue at ministerial and official level. It is not enough for the Government to say that it is a matter for the devolved institution.
During Committee on the Bill on 9 November, I made clear my support for a range of amendments proposed by several Lords. I was clear that welcome progress was being made, but that the amendments proposed by my noble friend Lord Cashman were in my view the best ones before your Lordships’ House. They were not accepted by the Government, but discussions have taken place outside the Chamber, and the amendments proposed by my noble friend Lord Cashman and the noble Baroness, Lady Williams of Trafford, are very welcome. I thank the noble Baroness very much for listening and working with my noble friend on them.
I pay warm tribute to my noble friend Lord Cashman. We have been friends for many years. It is his tireless campaigning with others, including the noble Lord, Lord Lexden, that has got us to this point today, and we should be very grateful to them all.
Although it is not on the subject of the amendments, I will make one final point on equality in Northern Ireland in respect of women’s equality. The Northern Ireland Assembly, Ministers, led by the First Minister and Deputy First Minister, and the political parties must get together to deliver equality for women living in Northern Ireland, so that they enjoy the same rights as women living in England, Scotland and Wales. Again, the UK Government have to play their role by raising that at ministerial level. Although that is a matter for another day, it is an important issue to which we must return. In conclusion, I confirm my full support for the amendments.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, I am so pleased to be able warmly to support the amendments proposed by the noble Lord, Lord Cashman, and my noble friend, Lord Lexden. I also acknowledge the spirit of very positive co-operation that has led to the amendments. I recognise that they will continue to strengthen the efforts made by this Government to tackle the historical wrongs suffered by gay and bisexual men in England and Wales—and now Northern Ireland—who were criminalised over a long period for something that something that society today regards as normal sexual activity.
I shall deal first with Amendments 181D, 181E and 181F, tabled by the noble Lord, Lord Cashman. As he explained, they will enable the Secretary of State to extend, by regulations, the list of offences eligible for a disregard under the provisions of the Protection of Freedoms Act 2012. The regulation-making power enables the necessary modifications to be made to Chapter 4 of Part 5 of the 2012 Act, and provides for corresponding provision for pardons to that contained in Clauses 148 and 149 of the Bill.
In Committee the noble Lord made the case for other offences being included in the disregard process, in particular the offence of solicitation by men which is in Section 32 of the Sexual Offences Act 1956. As I indicated at that time, the Government are broadly sympathetic to this, but we need more time to work through the implications of adding offences to the disregard scheme, and in particular the conditions that need to be satisfied before a conviction could be disregarded. In recognition of the fact that we should not rush that consideration, Amendment 181D enables the Home Secretary to add other abolished offences to the disregard scheme by regulations, subject to the affirmative procedure. It is important that, in taking this forward, we are able to distinguish between activities that are now no longer illegal and those that are still illegal. This amendment also gives us scope to consider what other offences may be appropriate for inclusion, so it is to be welcomed as a signal of our continued commitment to address these historical wrongs.
As my noble friend Lord Lexden explained, the amendments in his name introduce a comparable disregard scheme in Northern Ireland to match that already in operation in England and Wales. They also introduce the same approach to statutory pardons as that contained in Clauses 148 to 150 of the Bill.
As I indicated in Committee, as these provisions relate to transferred matters in Northern Ireland, it is right that this House should respect the usual convention that the UK Parliament legislates in respect of such matters only with the consent of the Northern Ireland Assembly. I am pleased to say that the Assembly adopted the necessary legislative consent Motion on 28 November.
My noble friend Lord Lexden pointed out the important difference in the Northern Ireland disregard scheme; I thank him for explaining it to the House so that I shall not have to go through it again. I am pleased that we have been able to work fruitfully with the noble Lord, Lord Cashman, and with my noble friend, and I commend their amendments to the House.
My noble friend Lord Lexden pointed out an apparent contrast in the approach taken in Clause 148 as between civilian and service offences. That clause confers posthumous pardons for convictions for buggery and certain other abolished offences tried in the civilian courts, which date back to the Henry VIII statute of 1533—whereas posthumous pardons for convictions for the equivalent offences under service law reach back only to 1866. My noble friend said that it was in fact the Navy Act 1661 which first criminalised buggery in the Armed Forces. While the intention behind Clause 148(4) is to capture only relevant service offences that could have been prosecuted in either civilian or service courts, my noble friend may have alighted on a very valid point. I therefore undertake to consider this matter further with a view to bringing back a suitable amendment at Third Reading.
Lord Lexden
My Lords, I must express most grateful thanks to all noble Lords who have taken part in the debate. Those who will benefit from these measures in Northern Ireland will derive great satisfaction from this part of our proceedings today. There is, as the noble Lord, Lord Kennedy of Southwark, emphasised, more to be done—but these measures will, I think, assist the new pattern of more tolerant, inclusive and peaceful life that is evolving in this important part of our country.
Lord Kennedy of Southwark
My Lords, this amendment in the names of the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee, was debated in Committee. It is fair to say that it did not get a warm welcome from the Minister in responding to the debate. I was surprised to learn that the Government had no data at all on the number of people affected by the law before it was abolished. Clearly, the amendment is not going to be accepted by the Government tonight, but the noble Lord is right to keep raising the issue and I hope that it will keep being raised. It is only by doing so that we can explore what options are available to us, what happened in the past and whether it was right and whether, with hindsight, the offence should have been removed from the statute books many years before it actually was, as it was used in a way that discriminated against black people.
I hope that, when the Minister responds to this short debate, she can focus particularly on the amendment. In her response in Committee, the focus was as much on the previous debate, so I hope that it can focus particularly on the points voiced before us here today.
Baroness Williams of Trafford
My Lords, I thank both noble Lords for explaining the amendment, which was of course also tabled in Committee, seeking to confer a pardon on persons, living and deceased, who were convicted under that part of Section 4 of the Vagrancy Act 1824 which was repealed by Section 8 of the Criminal Attempts Act 1981.
Section 4 of the Vagrancy Act 1824 was originally a wide-ranging provision, and some of it is still in force today. The part with which the noble Lord’s amendment is concerned is the offence of being a suspected person, frequenting, in effect, any public place,
“with intent to commit felony”,
or, as it became, an arrestable offence. The noble Lord has illustrated from his own experience, and the Home Affairs Select Committee identified in 1980, that this so-called “sus” offence was used in a discriminatory and unfair way, particularly in relation to young black men. However, as the noble Lord has also acknowledged, not every conviction under this provision, certainly not going all the way back to 1824, was wrong or unfair. In fact, the Home Affairs Select Committee concluded:
“The most powerful argument against ‘sus’ is that it is a fundamentally unsatisfactory offence in principle”.
Baroness Williams of Trafford
My Lords, I am not a lawyer. When the noble Lord, Lord Pannick, and the noble and learned Baroness, Lady Butler-Sloss, say this is a very difficult issue, I know that this is a very difficult issue. I am grateful to the noble Lord, Lord Paddick, for retabling the amendment on pre-charge anonymity for those accused of sexual offences and to my noble friend Lord Marlesford for his amendment, which proposes pre-charge anonymity for a person accused of any crime. I know this is a subject which we have debated frequently and in which noble Lords have a great deal of interest, and we have the legal experts of the land here to assist us.
Like other noble Lords have said, I will not repeat all the points I gave in my responses to the amendment in Committee, save to say that the Government fully understand the anguish felt by those who have had their reputation questioned and tarnished following unfounded allegations made against them. My noble friend Lord Lamont very articulately outlined the names of some of them, although I will not go into individual cases. As the noble and learned Lord, Lord Judge, indicated in our earlier debate, such anguish will arise whether the unfounded allegation was in relation to allegations of sexual offences, which is the premise of the amendment in the name of the noble Lord, Lord Paddick, or with regard to other offences, which is the reasoning behind my noble friend’s amendment.
However, I reiterate that the notion that someone is innocent until proven guilty, as the noble Lord, Lord Pannick, says, is absolutely central to our justice system and the rule of law. There must never be an assumption that being charged or arrested for any offence indicates that a person is guilty of a crime, so the Government have every sympathy for the underlying aims behind both of these amendments. As noble Lords will know, the Government also start from the position that there should, in general, be a presumption of anonymity before the point of charge and believe that there is also a general acceptance that there will none the less be exceptional circumstances in which the public interest means a suspect should be named. The noble Lord, Lord Campbell-Savours, articulated that. The Government’s position remains that we are not persuaded that legislation is the right way forward at this time.
As with any offence, it is absolutely right and proper for the police to have operational independence in deciding whether to name a suspect, and the Government firmly believe that non-statutory guidance, rather than primary legislation, is the appropriate vehicle for guiding the police in these operational decisions. It is absolutely vital that the police are able to exercise their own judgment and act swiftly in circumstances where releasing the name of a suspect may, for example, prevent further harm. The introduction of a statutory scheme would hamper the police’s ability to act in this way. We know that such identification can help other victims to recognise that they are not the only ones who have suffered, as the noble Lord, Lord Rosser, said. This is particularly the case with regard to sexual abuse allegations, where the ability of the police to name an individual accused of such an offence might give encouragement to other victims to overcome their reluctance to come forward—and many of them are very reluctant. Victims must feel that they can report the abuse to the police as well as get the support they need.
We have seen recently the significant effect of increased willingness by victims to report what happened to them in the shocking scale and nature of allegations of non-recent child sexual abuse in football. I am sure the whole House will want to join me in paying tribute to the bravery that some ex-footballers have shown in coming forward publicly after so much time in what must have been terribly difficult personal circumstances. Their courage has clearly given confidence to many others to come forward. But had the legislation put forward by these amendments been in place today, the media in this country could have been prevented from reporting the claims of some of these alleged victims. Of course, as with any allegation, it is now for the police to take forward and investigate in order to establish the facts and, where appropriate, to bring prosecutions.
A question was asked—I cannot remember by which noble Lord—about whether the police should believe all victims. The police should always focus on the credibility of the allegation rather than on the credibility of the witness. As I have just outlined in the case of allegations in football, I cannot emphasise strongly enough that we must not undermine victims’—
Lord Carlile of Berriew
I do not quite understand how the shocking cohort of football cases relates to the issue in these amendments. These football cases have not followed a specific arrest or arrests. Indeed, the three convictions of Barry Bennell in 1994, 1998 and, I think, 2002, did not produce a cohort of reporting; media publicity of the issue, not of an arrest, produced it. So what does it have to do with this issue?
Baroness Williams of Trafford
I am trying to illustrate that alleged victims’ willingness to come forward is now more common because they feel that they can come forward and they are more likely to be believed. There are not huge numbers of convictions in sexual abuse trials, and to go back to the position where anonymity was granted would be a retrograde step.
Lord Paddick
Can the Minister clarify that? I think she just said that there is a low conviction rate in trials involving sexual offences. That is not accurate. In rape cases, for example, the conviction rate at trial is more or less over 50% and more or less in line with the conviction rate in other offences.
Baroness Williams of Trafford
Many cases do not come to trial. I was trying to illustrate the reluctance of people to come forward. People are still reluctant to do so, and the Government do not want to create an environment in which we go back to the practices of times gone by, which is why we have so many allegations of historic sex offences.
Noble Lords asked about safeguards, and of course, as my noble friend Lord Faulks said, we have the magistrates’ court and the High Court. We have College of Policing guidance, which states that the police should not routinely release information about suspects before charge. However, it also makes clear that there are limited circumstances in which the release of such information can be justified.
Lord Campbell-Savours
Will the Minister address the issue that was raised by most of the speakers, on the position of people who commit suicide, whose families break up, whose reputations are destroyed or whose careers end, or who are destroyed in their communities, only because the Government of the day—of both major parties—have insisted on pursuing this arrangement, which is clearly not in the public interest? Will the noble Baroness address the agony of the people involved? The fact that some of them are prominent is not so important. Hundreds—there may well be thousands; we do not know—of people out there suffer similarly.
Baroness Williams of Trafford
I think I addressed that right at the beginning of my speech, when I said that the Government completely acknowledge the pain that some people have gone through in the course of the last few years—and in the course of history—due to being wrongly accused of crimes which they did not commit. I absolutely acknowledge that point. The noble Lord, Lord Pannick, and the noble and learned Baroness, Lady Butler-Sloss, said that it is an incredibly difficult issue, and I recognise that.
I was going to say something else. The College of Policing is currently developing—
Lord Lester of Herne Hill
The Minister acknowledges that there is a problem and that there have been cases of monstrous injustice to individuals. Several of us have asked whether the Government will go forward, not backwards, with some alternative to either of these amendments. Can she tell us precisely what she proposes to do, with revised guidance, codes of practice or anything else, so that we can be satisfied that the Government will solve the problem?
Baroness Williams of Trafford
I was just about to say—I do not know whether the noble Lord will be satisfied by it—that the College of Policing is currently developing authorised professional practice on media relations, and its guidance makes it clear that decisions should be made only on a case-by-case basis when it comes to the releasing of names. I am not sure that I have satisfied noble Lords but I have tried to explain how we have tried to achieve balance in the protection of anonymity for persons who are accused pre-charge.
Lord Morris of Aberavon
I wonder whether the Minister is going to deal with this difficult issue with its complicated argument by referring it to the Law Commission so we can have an independent view that may not be forthcoming from the College of Policing.
Baroness Williams of Trafford
I think that I have explained that the Government feel that we currently have the balance right and that we should preserve that presumption of anonymity—so I will not be doing what the noble and learned Lord suggests. I hope that my noble friend will withdraw his amendment and that the noble Lord, Lord Paddick, will not press his.
Lord Wigley (PC)
My Lords, I realise that the House wants to move to a vote on the very important and significant debate we have just had. I do not know whether there is a mechanism whereby I could come back to Amendment 185 at Third Reading so that we do not lose this debate because this, also, is a very important question with regard to the anonymity or otherwise of people involved in rape cases. I would be grateful for some guidance on this matter.
Baroness Chisholm of Owlpen
I am afraid that if the noble Lord wants to press this amendment he has to press it now. We cannot go back to it again because we have to go in order.
Lord Wigley
I will speak as rapidly as I can and I am sorry that this is going to detain the House. Amendment 185 is in my name and those of the noble Baronesses, Lady Howe of Idlicote, Lady Brinton and Lady Cohen of Pimlico. I thank them for their support.
I do not apologise in the slightest for returning to a matter that I raised in Committee, since most of the countercase put by the Government in Committee triggered dismay and incredulity among those involved in cases such as those I highlighted then. To the extent that there was any validity in the Government’s countercase, I have adjusted the wording of the amendment to respond constructively. The impact of this new clause would be to prohibit the police in England and Wales from disclosing the name of the victim of rape or attempted rape to the alleged perpetrator—
Baroness Cohen of Pimlico (Lab)
My Lords, my name is also attached to this amendment, but I would not normally have spoken given that the noble Lord, Lord Wigley, and the noble Baroness, Lady Howe, were such distinguished proponents of it. At the moment there is a choice of injustices. Perhaps we should have provided—and I should be glad to provide at Third Reading—a clause saying that a judge may decide whether the name should be disclosed. This is, however, also a modern offence. In the old days it might not have mattered very much if you disclosed only the name of the accuser. These days, the perpetrator has no trouble at all, because of the spread of social media, and these cases are more frequent.
One reads of cases all the time and I want to disentangle this from the issue of rape. It is not entirely about rape. It is about being knifed in the street or pushed under a Tube train by a perfect stranger, as I am sure we have all read about, and being terrified thereafter in case he or she comes and does it again. Therefore, I would be very grateful if the Minister would understand the strength of feeling and the injustice being done. If we can put in a clause at Third Reading offering the possibility of review by a judge if necessary, I would be glad to do so.
Baroness Chisholm of Owlpen
My Lords, as the noble Lord, Lord Wigley, has explained, this amendment is designed to strengthen the protection for the victims and witnesses of a sexual or violent assault by a stranger. I sympathise with this objective but, as I indicated in Committee, there are difficulties. I am grateful to the noble Lord for taking on board the points I made in response to his earlier amendment on this issue. He has now come forward with a substantially revised amendment. I fear, however, that this serves only to highlight again the challenges of legislating in this area.
It is vital that the criminal justice system supports and protects victims and witnesses, particularly victims of sexual offences, who are especially vulnerable. As I stated in Committee, there are already a number of means whereby those at risk of further harm, or who are deemed to be intimidated, can be safeguarded. I shall not repeat these measures now, other than to say that there is a wide range of options available for their protection. To intimidate a witness is a very serious criminal offence.
Of course, the right to a fair trial is a cornerstone of our criminal justice system. The noble Lord, Lord Wigley, has rightly acknowledged this in the revised amendment before us today. However, to say that the identity of a victim or a witness may be withheld from the defendant except where to do so would compromise the defendant’s right to a fair trial is almost always a contradiction in terms. As my noble friend Lord Hailsham said, fundamental to a fair trial is the right of the accused to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him. The accused cannot be expected to prepare a proper defence if he does not know who is accusing him of the alleged crime, and without that there can be no fair trial.
In exceptional circumstances, there is already provision for anonymity of victims or witnesses from the accused, through a witness anonymity order. A number of conditions must be met for this to apply, including that it would protect the safety of the witness or another person, that it is in the interests of justice for the witness to testify and the witness would not testify if the order were not made, and that it would be consistent with the defendant receiving a fair trial. It is an exceptional measure of last resort. This means that in the minority of cases where those accused of violent or sexual assault are strangers, the court can decide to grant victim or witness anonymity, provided these other conditions are met.
Lord Wigley
On that very point, if the court determines at that stage whether or not to release information, surely there is every case to get consistency prior to that. I quoted five cases, I think it was, of different responses by the police in different parts of London. The absence of any consistent approach to this underlines that there is a serious problem. If the Government were willing to review how the mechanism of referring to the courts, which the Minister mentioned, can be brought in in a way that avoids the variety of ad hoc responses by the police, that might be one way forward. I would be very grateful if the Minister would consider that.
Baroness Chisholm of Owlpen
The problem is that, as I said earlier, it is an exceptional measure of last resort. This means that, in the minority of cases where those accused of violent or sexual assault are strangers, the court can decide to grant victims and witnesses anonymity, provided that the conditions are met.
While I cannot for these reasons support the noble Lord’s amendment, he has raised an important point about the consistency of practice both across and within police forces about the disclosure of the address and telephone number of a victim. Crown Prosecution Service policy on prosecuting cases of rape clearly states that addresses of victims and witnesses should not be disclosed to the defendant during court proceedings. The same is true of victims’ or witnesses’ telephone numbers or email addresses. However, we do not know how aware the police are of this policy, so we will explore with the College of Policing whether it would be appropriate for additional guidance to be given to police forces to ensure that this practice is universally followed.
Baroness Cohen of Pimlico
Before the Minister sits down, I say that in the case with which the noble Lord, Lord Wigley, and I are most familiar, the police disclosed the victim’s name quite automatically to the perpetrator about 20 minutes after they had arrested him on the evidence of two policemen. It is all very well to say that you can wait to have a court make a decision, but a policeman made a decision at the earliest possible stage, and that is the issue that the noble Lord, Lord Wigley, and I are attempting to address.
Baroness Chisholm of Owlpen
I am sure the noble Baroness will understand that I cannot go into individual cases. CPS policy on prosecuting cases of rape clearly states that witnesses’ addresses should not be disclosed to the defendant unless already known. The CPS does not disclose the addresses, email addresses or phone numbers of victims or witnesses in any case unless already known. That is why we are looking at ways to ensure that this approach is similarly applied by police forces.
While the amendment is well intentioned, for the reasons I have given, I do not consider that it will help advance the noble Lord’s cause. He has alighted upon an important issue regarding the consistency of practice adopted by criminal justice agencies in relation to the disclosure of a vulnerable victim’s address or other contact details, and I am ready to explore further how this might best be addressed. On that basis, I hope the noble Lord will feel able to withdraw his amendment.
Lord Wigley
My Lords, I am grateful. I realise that the House wants to move forward rapidly. I was grateful for the contributions made by the noble Viscount and the noble Lord, Lord Carlile, to the contra argument with regard to the rights of the defendant. Of course I recognise that they are important. The question seems to revolve around the inconsistency of the police response, which the Minister has accepted needs to be looked into, and whether, while it was reasonable to withhold addresses and telephone numbers in the past, it might now be necessary to withhold the name because of the ease of getting addresses from information available on computer-based systems these days. If the Government are prepared to review those aspects of the question, we will feel that we have made some progress on this issue. If the Minister can indicate that the Government are willing to look at those aspects, I will be prepared to withdraw the amendment.
Baroness Chisholm of Owlpen
We realise that certain aspects need to be addressed, which is why I said that I am ready to explore further how this might best be addressed.
Lord Wigley
I am grateful to the Minister. On the basis of that assurance that there will be an investigation into those aspects of the question, I beg leave to withdraw the amendment.
Lord Rosser
I will be brief. As the noble Lord, Lord Paddick, has indicated on behalf of the Liberal Democrats, if, having heard the Government’s reply, my noble friend Lady Royall decides to test the opinion of the House, we too shall be supporting her amendment in the Division Lobby.
I will not go through all her points but my noble friend has referred, as have others, to the issue of repeat offences. She referred to why the maximum sentence is five years at present. She referred to the level of cross-party support that there has been on this issue, and to the relationship of the maximum sentence for this offence with other offences that have a maximum of 10 years. She also made reference to the stalking orders and the Government’s announcement there, which was welcome, but of course it does not address the issue of what the appropriate maximum length of the sentence is. My noble friend also stressed that stalking costs lives in certain circumstances, and causes psychological harm. I think she has made an extremely powerful case. As I said, if she decides, having heard the Government’s response, to test the opinion of the House, we shall be with her in the Division Lobby.
Baroness Williams of Trafford
My Lords, I pay tribute to the work that the noble Baroness, Lady Royall, carries out as a trustee of Paladin to support and give a voice to victims of stalking.
Obviously it would be wrong of me as a Minister to comment on individual cases, particularly on sentences imposed in those cases. However, I want to express my sympathy for the victims of these crimes, which can have significant effects on their lives. It is important to consider the evidence of how sentencers are using the range of penalties available to them today. It is very rare that sentences are given that are near to the current maximum. In 2015 only three people received sentences of over three years for the Section 4A offence, and the average custodial sentence was 14.1 months. The evidence therefore suggests that judges are finding their current sentencing powers for this offence sufficient.
We must also bear in mind that, in addition to this specific stalking offence, this type of offending can be charged under other offences such as assault, criminal damage and grievous bodily harm with intent. When an offender is convicted for one of those offences, they will face a maximum penalty of 10 years for criminal damage or life imprisonment for GBH with intent.
I reassure noble Lords that the Government are taking steps to ensure that stalking is dealt with seriously. As the noble Baroness acknowledged, last Wednesday we announced plans to introduce a new stalking protection order aimed at ensuring that pre-charge options are available to the police to protect victims of stranger-stalking to the same level as victims of domestic violence and abuse. Breaches of these orders will be a criminal offence carrying a maximum penalty of five years’ imprisonment.
Alongside the work of government, the independent Sentencing Council is currently considering sentencing guidelines for intimidatory offences, including the stalking offence covered by the noble Baroness’s amendment. The council aims for its definitive guidelines to come into force in early 2018, following a consultation on the draft guidelines early next year. I encourage the noble Baroness and others to respond to the consultation.
We are also looking at the wider picture of how stalking offences are dealt with and prosecuted. Her Majesty’s Inspectorate of Constabulary and Her Majesty’s Crown Prosecution Service Inspectorate are currently carrying out a joint inspection on the effectiveness of the police and CPS response to cases involving stalking and harassment, and to examine the service received by victims.
In setting maximum penalties, we must also consider the penalties available for other, related offences. These include the other offences under Sections 2 and 4 of the Protection from Harassment Act, which can cover similar offending behaviour. We should consider carefully the potential impacts of creating such a large difference between the maximum penalties for the Section 4 and 4A offences, as the amendment proposes. Other relevant offences include assault occasioning actual bodily harm or grievous bodily harm, for which the statutory maximum penalty is five years’ imprisonment. To increase the maximum penalty for stalking offences causing fear of violence would mean that the penalty for causing fear of violence would be higher than that for causing the violence itself.
We recognise that it is often the case that raising the maximum penalty appears to be a straightforward solution to a problem. I do not think it is a straightforward solution in this case. It may be necessary in due course but, before moving to raise the maximum, we should give careful consideration to the implications for other related offences and avoid creating anomalies in the criminal law.
However, I recognise the strength of feeling about this issue and the harm that can be caused by the most serious stalking cases. The Government will therefore review the operation of the Section 4A stalking offence and related offences. We will consider the maximum custodial sentences available to the court and, in addition, consider mental health sentences to consider how best to identify and address the underlying issues that are present in the most serious cases. The review will supplement the work being done by the Home Office to prevent stalking by looking at the ultimate sanctions available for those who continue to commit offences. I hope this review will also provide further material for the Sentencing Council to draw on as it produces sentencing guidelines for stalking and related offences. Given this commitment to review the operation of Section 4A, I hope the noble Baroness will feel able to withdraw her amendment.
Baroness Royall of Blaisdon
My Lords, I am grateful for that response from the Minister and for the contributions from other noble Lords. Of course I hear what the noble Viscount, Lord Hailsham, says. I too loathe prisons; I recognise that they are overflowing and that the conditions inside many of them are abhorrent. However, I agree with the noble Lord, Lord Paddick, that many people who are sentenced to prison should not be there, but that does not mean to say that the people who in my view should be in prison should not be there. So I do not agree with the noble Viscount.
It is true that other crimes can be taken into account but I am referring to one specific crime, stalking, and I think we should take that specific crime seriously. It should not always have to be taken into account along with other crimes.
The Minister pointed out the potential differences between sentences; as she says, actual bodily harm has a maximum of five years. However, I believe that is because the harm that is caused does not have to be really serious; typically, it is bruising. What we are talking about here is something that blights people’s lives and those of their families year after year.
I am grateful for the offer from the Minister for a review but, as I mentioned in my speech, this is something that I and many others, including the noble Baroness, Lady Brinton, cared about four years ago when we argued that the maximum sentence should be 10 years. The last four years have shown us that a five-year maximum is not enough, and I therefore wish to test the opinion of the House.
Lord Hope of Craighead
My Lords, I will add just a footnote to what the noble Viscount said. Some years ago, there was a challenge to Section 41 of the 1999 Act on the ground that it was incompatible with the convention right to a fair trial. I sat upstairs in a committee room as a Law Lord with the Appellate Committee. We were very careful to restrict the ability of counsel to explore these matters, as far as we possibly could consistent with the right to a fair trial. I am glad to hear that, from the noble Viscount’s experience, the system is working very well. On the other hand, when we were framing our restrictive view as to how the section should be applied, we were looking to the future; we did not have the benefit of experience. Like the noble Viscount, I have no objection to a review, which I suppose might serve some useful purpose by informing everyone as to whether the system is really working as the Law Lords expected it should.
Baroness Williams of Trafford
My Lords, the noble Lord, Lord Marks, raises the important issue of the protection of complainants of rape and sexual offences from being questioned about their sexual history. As I previously made clear, it is vital that victims have the confidence to report crimes as terrible as rape, and that they have confidence that the criminal justice process will bring offenders to justice. Our message to those who are willing but currently worried about reporting such offences is that they should feel confident about doing so.
When we first debated the issue, I assured noble Lords that we would look at how Section 41 of the Youth Justice and Criminal Evidence Act 1999 was working in practice. As the noble Lord asked, perhaps I may provide a bit more detail. The Justice Secretary and the Attorney-General have advised me that this will include examining the original policy intent of Section 41, its implementation and how it is operating in practice.
I can confirm that this work will be led by officials in the Ministry of Justice and the Attorney-General’s Office. They will consider carefully the concerns that have been raised and seek views from the judiciary, practitioners and victims’ groups. This work will be completed in the first half of next year.
We have already made clear our commitment to carry out this work and, in our view, there is no benefit in making it a statutory requirement. In the light of the detail that I have provided, I hope that the noble Lord will feel happy to withdraw his amendment.
Lord Marks of Henley-on-Thames
My Lords, I am very grateful to the Minister for the further detail that she has given on the review. I quite accept her position that there is no need for a statutory requirement for it, so I propose to withdraw my amendment. However, in response to the speeches of the noble Viscount, Lord Hailsham, and the noble and learned Lord, Lord Hope, I make clear to the House, for those who may not be familiar with it, that concerns have arisen in the light of the decision of the Court of Appeal in the Ched Evans case, in which the admission of such evidence in cross-examination was permitted in a case in which many thought that it would be excluded. It is for that reason that this has become a matter of additional concern, and for that reason that we are extremely grateful that the review is to be carried out. I beg leave to withdraw the amendment.
Baroness Finlay of Llandaff (CB)
My Lords, I am most grateful to the noble Baroness. Lady Hamwee, for speaking to me beforehand; we have had some discussion. I would like to go straight to answering both those questions, from my perspective, as I was the person who tabled the original amendment. I must declare my interest, as I now chair the National Mental Capacity Forum. I took over and started to do that in September of last year.
In terms of consultation, when I was listening to the voice of the person who had been on the receiving end of the Mental Capacity Act it was very evident very quickly that the automatic requirement for an inquest was causing an enormous amount of distress to families. It was also through that process that Ann Coffey MP consulted widely in her constituency and further afield—and coroners have been asked. So this was not brought forward lightly.
There was also consultation with the adviser to the Care Quality Commission, who feels strongly that DoLS are a useful process for safeguarding people who are particularly vulnerable. He was very supportive of the process following the judgment of the noble and learned Baroness, Lady Hale, which clearly laid out the acid tests under which DoLS should be applied.
As for cost savings, I see there being absolutely none. Actually, there is a possibility that costs might go up. Although unnecessary inquests will not, I hope, happen, so coroners will not be taken away from inquests that really do need to happen by the bureaucratic process of the unnecessary inquests, of which there were almost 7,000 last year, that find that death was due to natural causes, it is possible—indeed, I hope that this will happen—that more people will be inclined to make a deprivation of liberty safeguards application if there is a doubt about whether somebody is being deprived of liberty, because the deterrent of knowing how much distress would be caused to people, including families, will be removed.
Care home, clinical and hospital staff find it very distressing to say, “We’re going to go through this process of applying for a deprivation of liberty safeguards authorisation—and, secondarily, by the way, that means that there will automatically be a coroner’s inquest”. For those who culturally need a burial very rapidly after somebody has died, that causes profound upset—as it does to other families. As one coroner’s officer said, to me, “Sadly, sometimes the first time the families realise there has to be an inquest is when I have to pick up the phone to tell them, and they are deeply distressed”.
I suggest that by putting this measure in place we are removing a barrier to the deprivation of liberty safeguards, which are a way of protecting the rights of the most vulnerable person, because there is an inspection process. It must be necessary, proportionate and in the person’s best interests, and the person has a power to appeal to the Court of Protection against a deprivation of liberty safeguard. So people have far greater rights than somebody who ought to have a deprivation of liberty safeguard authorisation in place but where no application is being made. So I hope that this will increase the rights of the most vulnerable as well.
The process of scrutiny is that the Care Quality Commission has to be notified when a standard DoLS is in place. It will know whether a place has unusually many or unusually few DoLS applications, and will look in depth at the quality, the atmosphere and the culture around the way that care is given there. With all due respect to coroners, I think that the CQC is far more likely to detect where things are going wrong than a coroner’s inquest on a single case. But I reiterate that if a family have any concerns whatever, irrespective of whether there was a DoLS in place, they can ask for a coroner to look at a case when somebody has died. If they are suspicious, they can ask the question.
Baroness Chisholm of Owlpen
My Lords, I am grateful to the noble Baroness, Lady Hamwee, for raising this important issue. The Government take seriously their responsibilities to the very vulnerable group of people in society whom this amendment concerns. I also thank the noble Baroness, Lady Finlay, for her deep knowledge of this issue, and for the words that she has spoken this evening.
Coroners in England and Wales play a critical role in investigating the deaths of persons where there is a suspicion that death may have resulted from violence or unnatural causes, or indeed where the cause of death is unknown. Coroners will continue to have this duty with regard to persons who have been deprived of their liberty as authorised under the Mental Capacity Act 2005. There is no restriction on when or by whom deaths can be reported to a coroner. Indeed, the registrar of deaths has a duty to report deaths to the coroner where he or she considers that the coroner’s duty to investigate may apply.
The Government recognise that there is a need to improve the scrutiny of deaths that are not investigated by a coroner. The Coroners and Justice Act 2009 contains provisions to introduce medical examiners who will contact the deceased’s family and those involved in the deceased person’s care to identify any concerns as part of a reformed death certification process.
We consulted on our proposals earlier this year and aim to publish our response to the consultation in the new year. This will of course be particularly relevant to vulnerable people in hospitals and care homes, regardless of whether they are being deprived of their liberty. Medical examiners will not just be responsible for scrutinising individual deaths not investigated by the coroner but will have a role in analysing data on deaths across their area. They will identify patterns and contribute to lessons that will reduce avoidable deaths. They will also have a duty to report to coroners deaths for which a coroner’s investigation may be required.
The effect of Clause 155 will be that the death of anyone subject to a deprivation of liberty safeguards authorisation, or an appropriate Court of Protection order, will no longer trigger an automatic coroner’s investigation. We supported this change in the law in the light of views expressed by the then chief coroner, his honour Peter Thornton QC, in his 2015-16 annual report. He called for immediate action to remove deprivation of liberty safeguards cases from the definition of “in state detention”—a point that, just prior to his recent retirement, he reiterated to the Minister for Victims, Youth and Family Justice.
The issue here is not simply one of the resources needed to undertake these inquests. The then chief coroner had addressed this to some extent through his 2014 guidance, revised in 2016, which set out a streamlined process. But, as he has said, these inquests “serve no good purpose”. It cannot be right that more than 20% of inquests undertaken each year are unnecessary, with all that that implies in terms of added anguish for bereaved families.
I thank the noble Baroness for raising the profile of this important issue, but I hope that she will accept that the Government’s recently completed consultation on reforming the death certification process will, when its proposals are implemented, complement and support the work of our coroners who investigate suspicious deaths.
I think that the noble Baroness, Lady Hamwee, asked who we consulted in the consultation. The Ministry of Justice consulted the former and current chief coroner. Having said that, we consider that this removes any further need for further consultation on the coroner’s statutory duties, and I hope that the noble Baroness will therefore be content to withdraw her amendment.
Baroness Hamwee
I thank the Minister, but I cannot restrain myself from observing that her answer has been that there has been a consultation and that the Government will publish their response to it next year. I say that as nicely as I can, because clearly a lot of work has gone on with regard to this—and I am grateful to the noble Baroness, Lady Finlay of Llandaff, as well, for filling out the information that she gave pretty comprehensibly to the House on the last occasion. I beg leave to withdraw the amendment.
Baroness Hamwee
My Lords, I hope that my noble friend will understand that, given the further business to which the House has to attend tonight, I will confine myself to saying that we on these Benches enthusiastically support her amendments.
Baroness Chisholm of Owlpen
I thank the noble Baroness, Lady Brinton, for meeting with me, and for tabling these amendments again so that this House has a further opportunity to debate the important issue of victims’ rights.
Some of the amendments seek to place aspects of the Code of Practice for Victims of Crime on a statutory basis. This is a statutory code, provided for by the Domestic Violence, Crime and Victims Act 2004, and as such all criminal justice agencies are required to provide the services victims are entitled to under it. Many of the entitlements for victims included in the proposed amendments are already in the code. Some are for all victims of crime, while others are enhanced entitlements for the most vulnerable victims of crimes such as stalking and domestic and sexual abuse. Placing them on a statutory footing separately will not ensure compliance, nor guarantee that those entitlements are delivered effectively. The effect would merely be symbolic, and make amendment and updating of entitlements more difficult.
As I said before, we recognise the importance of training for professionals who work with victims. Under the police educational framework and national curriculum, police officers and staff receive training on the code throughout their careers. Officers and staff can receive training on the code at various stages of their careers. This training is supported by a new online package launched by the College of Policing. All Crown Prosecution Service staff who attend court have been given face-to-face training on the new Speaking to Witnesses at Court guidance and on how to interact with victims and witnesses at court without undermining the fairness of the trial. This is supported by a comprehensive package of e-learning, which barristers who appear for the CPS in court are expected to complete.
We also appreciate that more can be done in relation to certain categories of crime. That is why, for example, the College of Policing, as part of reviewing its guidance on stalking and harassment investigations, is looking at whether police officers fully understand the offences and are receiving appropriate training. It is also why Her Majesty’s Inspectorate of Constabulary and Her Majesty’s Crown Prosecution Service Inspectorate are carrying out a joint inspection to assess the effectiveness of police forces and the CPS in dealing with cases involving stalking and harassment, and to examine the service received by victims. The CPS is developing a training package for its prosecutors to improve the quality of charging and review decisions in stalking and harassment cases.
There has also been a concerted effort to improve the response of the police in domestic abuse cases. In its most recent national thematic inspection of the police response to domestic abuse, Her Majesty’s Inspectorate of Constabulary found improvements in police attitudes towards victims and front-line officers’ understanding of the importance of dealing with victims in a supportive way. Since 2014, every police force has published a domestic abuse improvement plan, new guidance has been published by the College of Policing, new training has been successfully piloted and for the first time, police are now collecting data against a national standard on all domestic abuse recorded crimes. A joint police and CPS witness care review is looking to identify clear performance measures which would include timeliness of communication of information to witnesses as set out in the code. In addition, Her Majesty’s Courts & Tribunals Service is undergoing an audit by the Government Internal Audit Agency on the effectiveness of arrangements in place for victims and witnesses, against requirements in the victims’ code and the witness charter. Results are expected in the first quarter of 2017.
In order to determine what is required to strengthen further the rights of victims of crime, we are looking at available information about compliance with the victims’ code, and considering how it might be improved and monitored. We are also looking carefully at the range of proposals that have been made by the Commissioner for Victims and Witnesses and others. We are focused on making sure we get this work right, and ensuring that any future reform proposals are evidence-based, and an effective and proportionate approach.
Finally, in relation to Amendment 188, which seeks to provide a direct route of complaint for victims to the Parliamentary Ombudsman, I should add that on 5 December the Cabinet Office published a draft public service ombudsman Bill. The Bill will improve access to the ombudsman’s services by allowing for all complaints to be made with or without the help of a representative and in a variety of formats to meet the digital age. When the Bill is brought before your Lordships’ House, it will provide a further opportunity for noble Lords to test whether the measures I have set out are delivering the improvements to the experience of victims in their interaction with the criminal justice system that we all want to see.
I hope that, having further debated these issues and received greater detail of the work that is being undertaken both by the Government and by the criminal justice agencies, the noble Baroness will be content to withdraw her amendment.
Baroness Brinton
I thank the Minister for her response, but sadly, many of the concerns I have raised were not particularly well articulated. There is no doubt that there is an entitlement to victims to have support. The fundamental problem is that there is no duty on the agencies to deliver it. The Minister said that police receive training when they first start their careers, and they can receive training later on. The problem is that, in practice, it does not happen consistently. The experience of victims, as outlined both tonight and at earlier stages of the Bill, demonstrates that it is still woefully inadequate in some parts of the country. The College of Policing clearly has an important role, but there are real concerns that there is a focus on the domestic abuse improvement plan without understanding that stalking and coercive control are key issues as well.
I accept the points the Minister has made about the draft public services ombudsman Bill, but there is more in Amendment 188 than is covered in that draft Bill. I believe that I have noble Lords’ support, and I would like to test the opinion of the House.
Monday 19th December 2016
(7 years, 4 months ago)
Lords ChamberRead Hansard Text Amendment Paper: HL Bill 84-I Marshalled list for Third Reading (PDF, 68KB) - (16 Dec 2016)
This text is a record of ministerial contributions to a debate held as part of the Policing and Crime Act 2017 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
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Lord Kennedy of Southwark (Lab)
My Lords, as the noble Baroness, Lady Hamwee, said, these amendments were discussed on Report a few days ago. Amendments 1 and 2 add the world “reasonably” to this section of the Bill requiring someone to confirm their nationality. In that discussion, I made the point that in this section of the Bill the wording “without reasonable excuse” is used in respect of suspects in new Section 43B(1) and again in new Section 46C(1), and on that page there is also “for a reasonable cause”. That is different from the provisions for police and immigration officers. I asked the noble Baroness, Lady Chisholm, to write to me, and I think she was going to, but I have not yet had the letter. It is on its way. That is good to know. When she replies, I hope she will shed some light on why the Government do not need the same provision for both groups in this part of the Bill.
Baroness Chisholm of Owlpen (Con)
My Lords, these amendments again seek to provide in the Bill that a police or immigration officer exercising the powers in Clauses 161 and 162 to require a suspected foreign national to state their nationality and provide their nationality documents on request must act reasonably.
I am grateful for the opportunity to clarify the Government’s position. On Report, the noble Lord, Lord Kennedy, suggested that the drafting of these clauses seemed inconsistent, given that, on the one hand, there was no express requirement on an officer to exercise the powers reasonably but, on the other hand, the defence operated only where the accused had a reasonable excuse. There is no inconsistency here. The reasonable excuse defence is a necessary safeguard which allows a suspected foreign national to offer legitimate reasons to an officer and, if necessary, a court, for their non-compliance. This might include, for example, circumstances where a document may have been destroyed with reasonable cause—a scenario which is also catered for elsewhere in immigration legislation. The requirement for officers to act reasonably in the first instance is, in the Government’s view, a quite different point.
I acknowledge that there are some variations in the drafting of the large number of existing Acts which set out UK immigration law. It is also accepted that certain actions in the Immigration Act 2016 explicitly require those exercising coercive powers to act reasonably. However, it is not the case that, in the absence of an explicit reference to that effect, officers are able, through that omission, to act unreasonably. This language is not universally applied, or required, nor is it used elsewhere in legislation which deals with the seizure or retention of nationality documents.
In exercising the powers conferred by Clauses 161 and 162, police and immigration officers must act in accordance with public law principles, which include acting reasonably, or they may be challenged in the courts by means of judicial review. I also note that the wording of these clauses is consistent with that used elsewhere in immigration legislation—for example, Section 17 of the asylum and immigration Act 2004, which uses the same language for similar purposes. Section 17 deals with the retention of documents that come into the possession of the Secretary of State or an immigration officer in the course of exercising an immigration function.
Finally, I should add that operational guidance in respect of these new powers will make it clear to officers the circumstances under which these powers may be exercised. In the light of this further assurance that these powers may be exercised only when an officer has a reasonable suspicion that an arrested person may not be a British citizen, I hope that the noble Baroness will be content to withdraw her amendment.
However, I will just add a couple of things: of course we are very happy to continue to engage with the noble Baroness as our plans for pilots develop; she is also right that Hampshire was one of the places that was suggested for the pilot.
Lord Kennedy of Southwark
Before the noble Baroness sits down, did I hear her correctly say that these powers can be exercised only when an officer has a reasonable suspicion? If that is the case, then I do not see why it should not be in the Act and this amendment accepted.
Baroness Chisholm of Owlpen
We take the view that the police should always act in a reasonable way.
Baroness Hamwee
I think that encompasses our arguments.
With regard to the pilots, I am grateful for the noble Baroness’s assurances, but had there been consultation on the choice of Hampshire, she might have had some useful input.
I do not know whether the noble Baroness is in a position to tell us whether there is a distinction between an immigration officer or constable “suspecting” under these clauses in the Bill and an officer having “reasonable grounds for believing”. Are these different tests? It seems to me that suspecting and having reasonable grounds for believing are not the same, but I think she is telling us that they are. Does she have anything that she is able to add?
Baroness Chisholm of Owlpen
I am slightly muddled by what the noble Baroness is saying. Could she explain that a bit more?
Baroness Hamwee
I take the point that different formulae are used in different parts of immigration law, but the Immigration Act to which I have referred provides for an officer to have “reasonable grounds for believing” something, while under this Bill, he simply has to “suspect” something. “Reasonable grounds for believing” seems to me to be a much tougher test than simply suspecting. The noble Baroness may have something she can share with the House on that.
Baroness Chisholm of Owlpen
Suspecting and believing are slightly different words, obviously. Perhaps I had better write to the noble Baroness with more clarification.
Baroness Hamwee
My Lords, I wonder whether this is something that we can add to the discussion or consultation on the pilots. If one is going to pilot two provisions in the same place, carried out by the same officers and prompted no doubt by the same observations, it would be quite interesting to have them either able or not able to require documents from the same people, but not able to do so because in one case the ground applies and in the other it does not. I realise we are getting into very fine detail, but it will be very real detail in the application. It is not the noble Baroness’s fault, but I can see that we are not going to be able to make further progress on this today. I beg leave to withdraw the amendment.
“(4) The list of offences in subsection (3) is to be read as if it also included the corresponding service offences and, for that purpose, the corresponding service offences are—(a) an offence under an enactment set out in subsection (4A) which is such an offence by virtue of any of the enactments mentioned in subsection (3);(b) an offence under section 32 of 13 Chas. 2 c. 9 (1661) (An Act for the regulation and better government of the navy);(c) an offence under section 29 of 22 Geo. 2 c. 33 (1749) (An Act for amending and consolidating the laws relating to the navy);(d) an offence of sodomy mentioned in, and punishable under, section 38 of the Naval Discipline Act 1860, section 38 of the Naval Discipline Act 1861, section 41 of the Naval Discipline Act 1864 or section 45 of the Naval Discipline Act 1866.(4A) The enactments referred to in subsection (4)(a) are—(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;(f) section 42 of the Naval Discipline Act 1957.”
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, I shall not keep the House long with these amendments. Noble Lords will recall that on Report my noble friend Lord Lexden questioned why the list of service disciplinary offences in what is now Clause 166 did not include all historic enactments criminalising buggery in the Armed Forces. I would like to thank my noble friend for bringing this matter to the Government’s attention. Having examined it further, we agree that the list of naval offences should reach back to the Navy Act 1661. I should stress that the various enactments cited in Amendments 3 to 6 include offences which would still be covered by the criminal law today, notably bestiality. Accordingly, it is important to emphasise again that these posthumous pardons would be granted to a person convicted of an offence only where their actions would not be illegal under current law.
We are aware that that there may be parallel offences that applied to Army personnel which predate the Army Act 1881. In the time available since Report we have not been able to identify all the relevant statutes, but we are continuing to research this issue. If there are further offences to be added to the list, we will explore the best means of achieving this.
The other amendments in this group are minor technical and consequential ones. I beg to move.
Baroness Williams of Trafford
My Lords, the noble Lord, Lord Rosser, has explained his amendment and the reasoning behind it. I am very happy to repeat the assurances that I laid out in my letter so that they now appear in Hansard.
I recognise the important principles behind the amendment and I agree that it is imperative that PCCs afford sufficient time during the consultation process to allow people properly to express their views and to provide sufficient material for them to form a proper opinion. However, it would not be appropriate to prescribe how PCCs should go about their consultation in the Bill; nor would it be appropriate for the Home Office to issue guidance on such matters. PCCs are locally accountable, and it would not be appropriate for Whitehall to dictate matters or fetter local flexibility.
I hope that the noble Lord would therefore agree with me that the points he has raised are properly a matter for guidance rather than for primary legislation—I think that was clear from what he said. As I set out on Report, the circumstances of each local consultation will be different, so we should not unduly fetter local flexibility to put in place proportionate arrangements that recognise the nature of each local business case. The amendment, while well intentioned, risks cutting across the local accountability of PCCs and risks Whitehall dictating matters that should rightly be left to local leaders.
In response to the noble Lord’s important concerns, I can, however, be very clear about the Government’s expectation that the PCC’s consultation will be undertaken in an appropriate manner and of an appropriate duration to allow local people to express their views and for the PCC to have taken them into account. There is plenty of case law relating to consultations of the kind that PCCs will be undertaking on their local business cases, and to discharge their formal statutory duty, PCCs will need to have regard to proper principles of consultation. We would expect PCCs to secure local legal advice prior to commencing a local consultation to ensure that their plans comply with the legal requirements set down by existing case law. On the point made by the noble Baroness, Lady Hamwee, about consistency, I reiterate what I said privately: I think there is consistency.
To further strengthen the advice available to PCCs, we are also working with the Association of Policing and Crime Chief Executives to ensure that its practice guidance on fire governance business cases covers the points that the noble Lord has listed in his amendment today and his previous Amendments 12 and 14. This includes comprehensive guidance on the duty to consult, the manner in which consultation should be carried out, its duration, and what arrangements PCCs should make to publish their response to the consultation.
The Government expect the guidance to address the matters to be covered in the PCC’s business case. By its nature, this must set out the PCC’s assessment of why he or she considers that it would either be in the interests of economy, efficiency and effectiveness, or in the interests of public safety, for a Section 4A order to be made. If the PCC’s proposal is based on the first limb of this test, it would follow that the business case needs to address why other forms of collaboration, outside of a governance transfer, cannot deliver the same benefits in terms of improved economy, efficiency and effectiveness.
The guidance is currently being drafted by a working group that includes representations from fire and rescue authorities and the Local Government Association. The Association of Policing and Crime Chief Executives is aiming to publish the first version in January 2017, shortly after Royal Assent. The document will continue to be updated to reflect the lessons learned from the first PCCs to develop and consult on their proposals. As it will be sector guidance, it will not be subject to any parliamentary procedure but, as I have just explained, it will be in line with the Government’s expectations. I commit also to sharing a copy of the guidance once it is finalised.
I hope that in light of these further assurances the noble Lord will feel content to withdraw his amendment.
Lord Rosser
I thank the Minister for her reply. I take it from what she has said that the guidance will reflect the Government’s expectations, which are that the guidance will fully reflect the issues covered by our Amendments 12 and 14 on Report and our Amendment 12 at Third Reading. Will the Minister confirm that once again?
Baroness Williams of Trafford
I apologise for being slightly distracted by the last thing the noble Lord said, so could he repeat it?
Lord Rosser
I understand that the Minister confirmed, as stated in the letter that she sent to me, that the guidance will reflect the Government’s expectations and included in those expectations are that the guidance will fully reflect the issues covered by our Amendments 12 and 14 on Report and now repeated in Amendment 12, which we are discussing, at Third Reading. If the Minister will confirm that that is the correct interpretation, I would be very grateful.
Baroness Williams of Trafford
I did just say, but perhaps not very clearly, that it will be both in line with the Government’s expectations and with the points made in the noble Lord’s Amendments 12 and 14—now Amendment 12. I am happy to reissue that reassurance.
While I am on my feet I wonder whether the noble Lord will indulge me because there is one aspect in the points made by the noble Baroness, Lady Hamwee, on reasonableness that I did not address. PCCs would be expected to act reasonably when determining how to consult locally on their proposal and we would expect them to have regard to relevant case law and to practise the guidance issued by the Association of Policing and Crime Chief Executives. If there is a view that the PCC has acted unreasonably when determining what appropriate local arrangements should be, there would be an option to challenge the decision via the local consultation process or ultimately through legal challenge.
Lord Rosser
I thank the Minister for repeating that reassurance. We have taken this matter as far as we can, and in light of her reply, I beg leave to withdraw the amendment.
“( ) In paragraph 28ZA (recommendations by the Commission or a local policing body)(as inserted by this Act), in sub-paragraph (3)(b), after “submission” insert “or completion”.”
Baroness Chisholm of Owlpen
My Lords, as these amendments are purely consequential on various non-government amendments added to the Bill on Report, the Government will not oppose them. We are reflecting on the debates on the amendments put forward on Report by the noble Lord, Lord Rosser, and the noble Baronesses, Lady Royall and Lady Brinton, and we will set out our position when those amendments are considered by the House of Commons on 10 January.
Baroness Williams of Trafford
In moving that the Bill do now pass, I shall not detain the House for long. I have felt the Bill to be a very constructive process, and in particular I thank the noble Lords, Lord Rosser, Lord Kennedy and Lord Paddick, and the noble Baroness, Lady Hamwee, as well as the genius of the noble Lord, Lord Pannick. If I ever need representation, I know where to go, as long as I have a lot of money! I particularly thank the officials, because they are not just from the Home Office; there are officials on the Bill from the Department for Transport, the Department for Culture, Media and Sport and the Ministries of Justice and Defence and the Department of Health. Last but not least, I thank my noble friend Lady Chisholm, without whom I could not have got through the Bill in such a cheerful manner. She has kept me upright sometimes late into the night and has worked so seamlessly with me. It has been an absolute joy. I wish her well. I know that she is not retiring—she is just taking life a bit more sensibly—but I shall desperately miss her by my side in the next Bill that I do.
Lord Rosser
I shall be very brief, but I take this opportunity to thank the Minister and the noble Baroness, Lady Chisholm of Owlpen, for the courteous and open way in which they have listened to and sought to address, within government policy constraints, the issues raised during the passage of the Bill. I seem to have received a deluge of letters, for which I am genuinely very grateful, but it rather tests the statement that somebody, somewhere is waiting for a letter—that may no longer be the case in this instance. Actually, the number of letters that we have received in the light of the debates that have taken place is a reflection that the issues have been raised, considered and responded to, and I am very grateful for that. I thank the members of the Bill team for their help. I also thank all my noble friends, especially my noble friend Lord Kennedy of Southwark, and other Members of this House who have contributed to the debates. We too wish the noble Baroness, Lady Chisholm of Owlpen, a very successful time, presumably on the Back Benches, from where I am sure she will continue to make her views known.
Commonwealth Development Corporation Bill
(Limited Text - Ministerial Extracts only)
Read Full debateTuesday 10th January 2017
(7 years, 3 months ago)
Commons ChamberRead Hansard Text Amendment Paper: Commons Consideration of Lords Amendments as at 10 January 2017 - (10 Jan 2017)
16:21 - The House divided: - Ayes: 246 / Noes: 293 - Question accordingly negatived.
16:35 - The House divided: - Ayes: 244 / Noes: 299 - Question accordingly negatived.
This text is a record of ministerial contributions to a debate held as part of the Policing and Crime Act 2017 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
The Minister of State, Department for International Development (Rory Stewart)
I begin by thanking right hon. and hon. Members. This has been a very instructive process. The new clauses and amendments tabled reflect what was a really good Bill Committee stage. The Government have huge respect for the intelligence, focus and precision of these amendments, and we hope that Members will see that all the concerns that have been expressed are going to be addressed through the strategy that is produced.
Before I address the new clauses and amendments in turn, I pay tribute very strongly to the Members on both sides of the House who have demonstrated their support for international development. I pay particular tribute to the hon. Member for Edinburgh East (Tommy Sheppard), who gave an extremely powerful speech in support of international development and about the importance of standing up and having the courage to defend complex and innovative projects.
Mr Gareth Thomas
At the outset of his remarks, will the Minister explain why the legislation has preceded the strategy?
Rory Stewart
I shall deal with that when discussing the second set of amendments, which relate to that directly, but first I want to continue to pay tribute to other Members of Parliament, from both sides of the House, for their support for CDC. I was struck by the support of the hon. Member for Liverpool, West Derby (Stephen Twigg) for the Virunga project in the Democratic Republic of the Congo, by the in-principle support of the hon. Member for Glasgow North (Patrick Grady), and particularly by the phrase produced by the hon. Member for Edmonton (Kate Osamor) that is absolutely right in guiding us as we go forward: we need to get the right balance between long-term investment and short-term need.
I should just recapitulate the extraordinary work that CDC has done and echo the thanks of the hon. Member for Bedford (Richard Fuller). It has been a really tough time. As Members of Parliament, we are used to being under full public scrutiny and attack. CDC works very hard and has delivered some high-quality projects, and this has been a very tough period for it.
Three types of amendments have been tabled. The first set basically says yes, we should be giving money to CDC, but we should be giving slightly less money to CDC; the second set says that there should be restrictions on the Government’s ability to give money to CDC; and the third set would restrict what CDC itself can do with the money. Essentially, the Government’s position is that these are all good points, but they are better dealt with through the governance mechanisms and the strategy than through statutory, primary legislation.
I shall deal first with amendments 1 to 5 and new clause 10, which essentially say yes, we should give money to CDC, but we should give less money to CDC. Why do we disagree with what was essentially the argument put forward by the hon. Member for Cardiff South and Penarth (Stephen Doughty)? First, because, with respect, I still believe that the hon. Member for Glasgow North is confusing the stock and the flow. The fact is that the money put into CDC will be recycled. For the sake of argument, if an investment was 10 to 12 years in length and CDC had $12 billion in the pot, it would be in a position to maintain the current rate of investment of around $1 billion a year—the money would come back and go bounce again at around $1 billion a year. It is not fair to compare what happens in a capital stock used for equity debt investment with the annual expenditure of a Department.
Secondly, there is the question of demand, which the hon. Member for Cardiff South and Penarth referred to. The demand is almost limitless. It is calculated that $2.5 trillion is going to be required annually by 2030 to meet the sustainable development goals, which is why the relevant question is not the demand for the money but the question of the absorptive capacity, which the hon. Gentleman raised.
Thirdly, the Bill is enabling legislation that sets a ceiling—a maximum limit; it is not saying, “This is the amount of money we are going to give.” Fourthly, the design is for the money to go into patient, long-term investment. The three-year review proposed in one of the amendments simply will not work for investments that are intended to be, on average, 10 years in length.
Mr Ivan Lewis
If the Bill is passed and its consequences are added to the fact that more than 25% of DFID’s spending currently goes through other Government Departments, the result will be that more than 50% of our aid will no longer be spent through DFID. Does it not raise serious questions about the Government’s intentions for DFID to remain as a stand-alone Department with a place at the Cabinet table if more than 50% of its spending will be spent by CDC and other Departments? No other Government Department would come to the House and ask for more than 50% of its resources to be spent via other means.
Rory Stewart
There are two distinct points there: DFID’s spending and the proportion of the spending. The first thing to understand is that CDC is 100% owned by the Department for International Development, which is one reason why a number of these amendments are not appropriate. On the proportion of money spent, as my hon. Friend the Member for Bedford (Richard Fuller) eloquently pointed out, the small increase that we are talking about in terms of the annual amount that CDC will be able to invest will still be much smaller than comparable organisations in Holland, Germany and France. It will be about a third of the amount that the Overseas Private Investment Corporation can invest—OPIC is just one of the US’s development finance institutions that is able to invest—and only about a sixth of what the International Finance Corporation puts out a year. We are not talking—comparatively, globally—about a large amount of money. We are talking about something in the region of 8% at maximum—even if we hit the maximum of official development assistance—and the other 92% will continue to go in the normal way through non-governmental organisations and organisations such as UNICEF for the objectives that we pursue.
Stephen Doughty
It would be helpful if the Minister clarified the time period over which this increase, if it was granted, would be played out with CDC. The explanatory notes to the Bill say very clearly that the £6 billion is intended to be used in this spending review to accelerate CDC’s growth. Is that his view, and what about the £12 billion? Is that spread over a 10-year period, a 20-year period or a five-year period? Can he give us a ballpark figure?
Rory Stewart
Let me clarify this. The £6 billion represents an additional £4.5 billion, because CDC already has £1.5 billion. We anticipate that that would cover the next five-year period to enable CDC, at maximum—we do not expect it to draw down the maximum amount—to be able to make the kinds of levels of investment that it made last year. The next £6 billion—it is not an additional £12 billion, but an additional £6 billion—would apply to the next five-year period. We are looking at a steady state allocation, which might, at maximum, allow CDC to meet the kind of expenditure levels that it gets next year.
Let me move on now to new clauses 2, 5 and 6 and amendment 6. Essentially, these are a series of measures that restrict the power of the Government to give money to CDC. They do that either by saying that they should not be able to boost the amount of money that CDC has through delegated legislation, or through asking for a strategy to be put in place before the money is disbursed. Again, these measures are not appropriate. The role of Parliament as specified for CDC in the Overseas Resources Development Act 1948 and the Commonwealth Development Corporation Act 1999 quite correctly relates to two things: the setting up of this body and the creation of a cap on the amount of money that this body is given.
However, it is not normal for Parliament to get involved in the detailed implementation of specialist business cases. That is true in everything that the legislature does in its relationship to the Executive. The money allocated to our Department in general through the Budget, which this House votes on, is then delegated to civil servants and to the Government to determine how it is spent. The same will be true here, but the strategy that will come forward will reflect very closely the arguments that have been made at the Committee stage and on Report. We will continue to remain in very close touch with Members of Parliament, and we will be judged by our ability to deliver, through that strategy, something that will address those concerns—above all, through the development impact grid and the development impact assessments on the individual business cases, which will address these particular issues.
Mr Gareth Thomas
Will the Minister specifically comment on the use of tax havens by CDC, and will he and other Ministers in his Department echo previous statements by the Secretary of State and instruct CDC to desist from using tax havens for future investments?
Rory Stewart
That is an invitation to move on to the last group of amendments, which comprises new clauses 8, 9, 3 and 7, one of which relates to the issue of offshore financial centres. These are restrictions on what CDC itself can do. There is a suggestion that there should be an annual obligation on ICAI to produce reports on CDC. Then there are restrictions on the routes through which CDC can put its money, and there are attempts through the new clauses to restrict the sectors and the countries in which CDC can invest. Let me take them in turn.
On ICAI, we are very open to scrutiny. The CDC has been scrutinised by the International Development Committee, the National Audit Office and the Public Accounts Committee. We expect it to be scrutinised in that way and to be scrutinised by ICAI. We welcome scrutiny from ICAI. However, we do not think it is for the Government to impose obligations on an independent regulator. It should be for ICAI to determine its priorities and where it thinks the problems are, and to be able to apply its scrutiny accordingly. It may determine that an annual scrutiny of 10-year investments does not make sense and decide to do it more frequently, but that should be for ICAI, not for statutory legislation of this House.
Rory Stewart
I beg to move, That the Bill be now read a Third time.
I would like to begin by reiterating my thanks and the tribute we owe to right hon. and hon. Members on both sides of the House for their shared belief in the importance of international development. At the absolute core of the Bill is our moral obligation to some of the very poorest and most vulnerable people in the world. I pay tribute to right hon. and hon. Members for the important points raised, which will be reflected in the new strategy as it comes forward.
I will briefly lay out once more why believe that this is a good Bill. At its core is our understanding that there is extreme poverty and suffering in the world and that economic development will play an important part in addressing it. There is enormous demand in the poorest countries of the world for well-paid jobs. It is one of the first things that any of us discover when we go to Africa and other developing regions. As the Chairman of the International Development Committee, the hon. Member for Halton (Derek Twigg) said, 90% of the growth and employment in the poorest countries of the world is currently driven by the private sector. As he also said, Africa requires 15 million more jobs a year. Every one of those well-paid jobs is an opportunity for a family to deliver the stuff we all care about—for parents to provide education for their children and the healthcare their families need. Above all, it is through the revenue these jobs generate for Governments that a long-term sustainable future can be maintained. That is what allows a Government to pay for their education and healthcare systems and, if there is an earthquake or some other natural disaster, to access the resources to address it. In the end, the only long-term sustainable path is through the generation of that economic development and growth.
Why CDC? We have chosen CDC because it brings together two important things: on the one hand, the rigour of the private sector and its ability to work out whether investments make sense—are there genuine markets for these goods; can these jobs really be sustained? —and, on the other hand, the values of the public sector. The latter are what ensure we go into the hardest countries in the world—for example, that we do renewable energy in Burundi or the Central African Republic or get into Sierra Leone when Ebola happens—and, above all, ensure that investments are not about short-term commercial returns but are patient, long-term investments of the kind that the commercial sector will often not deliver.
Why CDC? Well, having been established in 1948, it is the longest-serving, as well as the best, development finance institution in the world. It proved it in the 1960s, through its investments in Kenya, and, much more recently, since 2012, with its fantastic reforms, which we have talked about at all stages of the Bill, on salaries, transparency, offshore financial centres, the geography of investments and the sectors in which we invest, all of which is summed up in the development impact grid. That is what answers a lot of the points made in the discussion today, and that is what allows us to make sure that every investment focuses on the areas that generate the most jobs and on the countries where investment is most difficult, where the least capital is available and where GDP per capita is lowest.
We can see this in the real world: in the 17 million indirect jobs created by CDC; in its investments in places such as Burundi and the Central African Republic; in the hydroelectric investment in eastern Democratic Republic of the Congo—not an easy place to invest in—which the Chairman of the International Development Committee referred to; and, actually, in the Globeleq investment, where CDC’s investment will help to generate 5,000 MW of power in Africa over the next decade. To put the latter in context, Africa managed only 6,000 MW over the previous decade, so that is almost the entire generation of Africa over the previous decade being driven by a single company supported by CDC. Moreover, there is value for money for the taxpayer because the money is recycled, and the need is absolutely there, as we can see from the fact that we need $2.5 trillion of investment by 2030.
In conclusion, our Department will do many other things besides CDC. Much of the money will continue to flow through NGOs such as Save the Children, CARE and Oxfam. Many of our investments will be with valued partners such as UNICEF. More than 90% of the money we will spend through overseas development assistance will continue to go to health, education and humanitarian assistance. Within that, not all the money in economic development will go through CDC. It will also go through our investments that will take place through support to Governments and technical assistance. However, that CDC investment, combining the rigour of the private sector, the focus on markets and the values of the public sector, reflects the values of the British public who care about poverty and show in their own philanthropic giving how much they care about some of the most vulnerable people in the world. We are showing our respect for the British people by pushing forward with a proven model that will provide the sustainable growth required to address some of the most vulnerable and poorest people in the world. This is our moral obligation.
Tuesday 10th January 2017
(7 years, 3 months ago)
Commons ChamberRead Hansard Text Amendment Paper: Commons Consideration of Lords Amendments as at 10 January 2017 - (10 Jan 2017)
18:38 - divided: - Ayes: 299 / Noes: 196 - Question accordingly agreed to.
18:55 - The House having divided: - Ayes: 297 / Noes: 202 - Question accordingly agreed to.
19:13 - The House having divided: - Ayes: 298 / Noes: 198 - Question accordingly agreed to.
This text is a record of ministerial contributions to a debate held as part of the Policing and Crime Act 2017 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
The Minister for Policing and the Fire Service (Brandon Lewis)
I beg to move, That this House disagrees with Lords amendment 24.
Mr Deputy Speaker
With this it will be convenient to discuss the following:
Lords amendment 96, and Government motion to disagree.
Lords amendment 134, Government motion to disagree, and Government amendment (a) in lieu.
Lords amendment 136 to 142, and Government motions to disagree.
Lords amendment 159, and Government motion to disagree.
Lords amendment 302, and Government motion to disagree.
Lords amendment 305, Government motion to disagree, and Government amendment (a) in lieu.
Lords amendment 307, and Government motion to disagree.
Brandon Lewis
This first group of amendments includes 10 new clauses added to the Bill in the House of Lords against the advice of the Government. It covers four separate issues: part 2 of the Leveson inquiry; the funding of legal representation for bereaved families at inquests where the police are an interested person; the maximum sentence for the offence of stalking involving fear of violence or serious alarm or distress; and the rights and entitlements of victims of crime.
Chris Bryant (Rhondda) (Lab)
The consultation closed 17 minutes ago. The truth of the matter is that the Government promised that there would be one inquiry with two parts. As far as I can see, the Minister is effectively saying—nudge, nudge; wink, wink—“We are not going to proceed with part 2.” If that is the case, he should be straightforward and tell us so now.
Brandon Lewis
With great respect, the hon. Gentleman should look at Hansard when it is published. That is not what I said at all. I made it very clear that we have been seeking the views of the public and interested parties and that we have to look at what is appropriate, proportionate and in the public interest.
The consultation sought views on whether proceeding with part 2 of the Leveson inquiry is still appropriate, proportionate and in the public interest. As the last of the relevant criminal cases has only recently concluded, the Government believe that this is an appropriate time to take stock and seek views on the various options, as the then Home Secretary outlined 18 months ago. Submissions to the consultation will be important in helping to inform the Government’s thinking.
As hon. Members may also be aware, an application has been made to judicially review the consultation. Although I cannot comment on the current legal proceedings, the Government have committed not to take any final decisions relating to the consultation until the legal proceedings have concluded. Given the consultation and the ongoing related legal proceedings, I respectfully suggest to the House that this is not an appropriate matter for further legislation at this moment.
Sir Gerald Howarth (Aldershot) (Con)
I hope the Government will not be intimidated by a campaign the press are waging at the moment to try to deter them from implementing the Leveson recommendations. May I just tell the Minister that yesterday I submitted my monthly article for the Aldershot News & Mail, as I had been invited to do—[Interruption.] May I say to hon. Members on both sides that it is normally very good reading? The article was about press freedom. I received an e-mail yesterday evening saying that the paper was sorry that it would not be publishing it because it was “contradictory” to its stance on “a free press”. It is extraordinary that the Aldershot News & Mail, owned by the Daily Mirror group, feels it is so vulnerable that it cannot accept an article by me—my hon. Friend the Member for North East Hampshire (Mr Jayawardena) is the other contributor. Leaving aside my criticism of the Aldershot News & Mail, with which I was pretty robust this morning, may I say to the Minister that this illustrates a real paranoia in the media about this issue and it is our responsibility, as parliamentarians, to be straightforward and recognise that what we are seeking to do is to protect not ourselves but ordinary people?
Brandon Lewis
As always, my hon. Friend makes an important point. However, let me make it clear again that the Government will make a decision on this once we have had a chance to review the outcome of the consultation and in the light of the legal proceedings, and not before the legal proceedings have concluded.
Bill Wiggin (North Herefordshire) (Con)
But will it not be awkward for the Government if they completely ignore the Press Recognition Panel’s submission? After all, independently overseeing press regulation was what it was set up to do, and it is unequivocally calling for section 40 to be implemented.
Brandon Lewis
As I say, the Government will review the consultation, and I know the Secretary of State will look carefully at that. We are committed to not making decisions until the completion of the judicial proceedings. Hon. Members will also be aware that the Speaker has certified this amendment as engaging financial privilege. Our view is that amendment 24 is, at this time, unnecessary, inappropriate and ill-timed.
The Government fully understand the reasoning behind Lords amendment 96, which seeks to provide public funding for legal representation for bereaved families at inquests. It may be almost seven months since this House lasted debated this issue on Report, but the Government’s position has not changed. Our view remains that we should await the report, expected this spring, from Bishop James Jones on the experiences of the Hillsborough families. The Opposition have argued that this issue goes beyond Hillsborough. I do not dispute that, but the experiences of the Hillsborough families will have significant relevance for other families facing different tragic circumstances, and the issue of legal representation at inquests will undoubtedly be one aspect of those experiences. Bishop James’s report will provide learning that could be of general application, so it is entirely right that we do not now seek to pre-empt his review, but instead consider this issue in the light of his conclusions. For that reason, I put it to the House that this amendment is premature. As with the other Lords amendments we are debating, we must take into account the potential significant financial implications of amendment 96. Of course, the resource implications of the amendment are just one consideration, but it cannot be ignored, and, again, the Speaker has also certified the amendment as engaging financial privilege.
Finally, Lords amendments 136 to 142 seek to make further provision in respect of victims’ rights and entitlements. These amendments ignore the extensive reforms and modernisation we are undertaking to transform our justice system, and to protect vulnerable victims and witnesses, and, where appropriate, spare them the ordeal of appearing in court, through an increased use of video link systems and by rolling out pre-recorded cross-examination. The amendments would result in an unstructured framework of rights and entitlements that is not founded on evidence of gaps or deficiencies in what already exists, or even of what victims of crime want and need. Some amendments are unnecessary because they duplicate existing provisions and practices, or are being acted on by the Government already.
Liz Saville Roberts (Dwyfor Meirionnydd) (PC)
When will the Green Paper considering the need for a victims’ law, which was first mooted in February last year, actually be published?
Brandon Lewis
We are committed to introducing measures to strengthen further the rights of victims, and it is important that we have taken the time to get this right. We will announce our plans in due course. It is important to be clear that Lords amendments 138 and 139 are, therefore, similarly unnecessary, as the training of all staff in the criminal justice system is taken very seriously.
On Lords amendment 141, on quality standards, the Victims’ Commissioner’s role already encompasses encouraging good practice in the treatment of victims and witnesses, and the operation of the victims code, which is a detailed set of victims’ entitlements. In addition, police and crime commissioners, who commission local victims’ services, enter into grant funding agreements with the Secretary of State for Justice to receive the funds to do so. Those agreements set out a range of minimum standards for the services provided. We are currently reviewing existing standards relevant to victims’ services to make sure that we have the best possible framework in place.
The amendments, individually and taken together, are un-costed, vague and duplicative. They could impose significant obligations and financial burdens on the criminal justice system.
On Lords amendment 142, it is not clear what the purpose of directing a homicide review would be. In any case, it is unnecessary. There is already a statutory requirement for a review to identify the lessons to be learned from the death in domestic homicide cases.
Putting aside the many difficulties we have with the detail of the amendments, the Government are already looking at what is required to strengthen further the rights of victims of crime. We are looking at the available information about compliance with the victims code and considering how it might be improved and monitored. We are focused on making sure that we get this work right. We will ensure that any future reform proposals are evidence-based, fully costed, effective and proportionate.
As I have indicated, the intention behind many of the Lords amendments is laudable. On Lords amendment 134, we are persuaded that the case has been well made for increasing the maximum sentence for the more serious stalking and harassment offences involving fear of violence. I congratulate my hon. Friends on the work they have done on that.
As for the other Lords amendments, as a responsible Government we do not want to adopt a scattergun approach to legislation. Nor can we afford to be free and easy with taxpayers’ money by incurring substantial new spending commitments without offering any indication as to where the additional resources are to come from.
Mr Jim Cunningham (Coventry South) (Lab)
What are the Government going to do about strengthening protection for victims, particularly when they have to give evidence in court? Very often elderly people are frightened to go and confront the person they have accused.
Brandon Lewis
I noticed that the hon. Gentleman was trying to intervene before I made that comment. Hopefully he will be satisfied that we are looking to strengthen victims’ rights, but we want to do so in a proper, proportionate and appropriate way.
Mr Alistair Carmichael (Orkney and Shetland) (LD)
Taking at face value the criticisms that the Minister levels with regard to the provisions for victims of crime, can he tell the House why the Government have not introduced amendments in lieu, instead of just asking us to disagree with the Lords amendments? After all, strengthening victims’ rights was in the Conservative manifesto at the most recent election; how much longer do we have to wait?
Brandon Lewis
As I said just a few moments ago, we do want to look at strengthening victims’ rights, but we want to make sure that we do so in a correct, appropriate and proportionate way. I want to do that work, and in due course we will come forward with those proposals and ensure that we are doing it properly. Taking into account the work we are doing, Lords amendments 24, 96 and 136 to 142 are at best premature and at worst confused, unfocused and unnecessary. As such, we argue that they should be rejected by this House.
Lyn Brown (West Ham) (Lab)
Happy new year to you, Mr Deputy Speaker, and to the Minister.
We support Lords amendments 24, 96 and 136 to 142, along with consequential amendments 159, 302 and 307, and we will vote to retain them in the Bill. We also supported the original amendment 134, with consequential amendment 305. We are glad to see that the Government have changed their position, so we will not oppose their amendment in lieu of Lords amendment 134.
I thank those in the other place who have worked to bring these issues to our attention, particularly Baroness O’Neill and Baroness Brinton. I congratulate my noble Friends Lord Rosser and Baroness Royall, whose determination and outstanding advocacy for the most vulnerable in our society has led to the Government accepting our amendments to the stalking code. Each of the substantive issues before us is deserving of a full debate in its own right, but we have only a short amount of time. I will deal with each in turn.
Lords amendment 24—Lords amendment 159 is consequential to it—is a new clause that requires the Government to commission an independent inquiry into the way in which the police handle complaints relating to allegations of corruption between the police and newspaper organisations. It is commonly known as the Leveson 2 amendment, because it is similar in scope to the proposed second part of the Leveson inquiry. As was announced by Judge Leveson on 14 September 2011, this is a proposed examination into
“whether the police received corrupt payments or were otherwise complicit in misconduct”
and into any failure of the police and others properly to investigate allegations relating to News International and other news organisations. In 2012, the then Prime Minister, the right hon. David Cameron, said:
“When I set up this inquiry, I also said that there would be a second part to investigate wrongdoing in the press and the police, including the conduct of the first police investigation.—[Official Report, 29 November 2012; Vol. 554, c. 446.]
Yet the Government’s consultation, which ends today, as we have heard, could be seen as a weakening of that commitment. That underlines the need for the clarity that this amendment would provide.
Jess Phillips (Birmingham, Yardley) (Lab)
I had not intended to come along today, but it is a real pleasure to follow the hon. Member for Cheltenham (Alex Chalk), who rightly spoke about the real progress that is being made with the Stalking (Sentencing) Bill. There is no need to have a sort of ping-pong about who has done more about domestic violence, sexual violence and stalking because, frankly, we should all be trying to do everything we can, and I do not care who does it as long as it gets done.
The legislation and the amendments before us —particularly on stalking—represent real legislative progress, but that will mean absolutely nothing if, in practice, the legislation is not realised. As somebody who has worked on the frontline, I am afraid to say that so often we make brilliant rules in this place—beautiful, fancy written rules, still on all the fancy goatskins—and it means absolutely naff all to victims because of issues to do with resources and how things are properly realised by the different agencies. That is why I wanted to talk about the victims code and the amendments to the victims’ Bill that was introduced by my hon. and learned Friend the Member for Holborn and St Pancras (Keir Starmer). I urge the Government to consider the amendments and to consider making a more robust framework for the victims code, which is a brilliant piece of regulation. I have no doubt that every single person in here is totally committed to making things better for victims. I do not sign up to the idea that you are baddies and we are goodies. We all come to this place because we want to make something better.
I was the victims’ champion for Birmingham and did a huge piece of work on the victims code and victims’ legislation alongside the Government’s Victims’ Commissioner, and I have to say that if Members can find me a victim who knows what the victims’ code is, I will give them some cash now. People do not realise that they have this many days to ask for something, and they do not realise that they can have a victim statement. Only 30% of people remembered even being asked for one. I ask hon. Members to think back to the day that the murderer of our friend and colleague Jo Cox was sentenced. The thing that we do not remember from that day is that man. The thing we remember is Brendan Cox standing and making the victim statement outside the court that he had made inside the court because he knew that he had the rights to do it. That is rare but it was so powerful in that case.
It is imperative that we look at the amendments that relate to the victims’ law and see how we can strengthen them, because I am telling you now—not you, Mr Speaker, of course, but everyone—that at the moment the victims code is a hope as far as victims of crime are concerned, and the Opposition amendments would definitely make it stronger, especially for victims of stalking and sexual violence. I ask the Government to think again.
I want to make a quick point about the amendments regarding the equality of arms in cases where the state is an actor. I speak for the victims of the Birmingham pub bombings, who are not just my constituents but my friends. We have a matter of weeks to answer their plight. Currently, the Chief Coroner agrees with them that they have not been provided with an equality of arms, so an adjournment has taken place before their inquest can be reopened. We have until February to right that wrong. At the moment, I see nothing that tells me that that will change. I ask Government Members to look at the amendments and think about how they would feel if it concerned the families in their constituency.
Brandon Lewis
With regard to the Birmingham situation, I am very happy to have a conversation with the hon. Lady outside the Chamber. I think that she may have slightly misunderstood what is happening, and I am happy to give a bit more detail about what is happening with the legal aid process.
Jess Phillips
I am only too aware that the Minister will almost certainly tell me that the legal aid, through the Legal Aid Agency, has been granted to two of the seven families of complainants. Although I am more than happy to meet the Minister outside of here, I am going to wager that I know a bit more about it than perhaps he does. I would be delighted to be proven wrong—in fact, the Home Office has heard our requests for Hillsborough-style funding—and, if I am, I will stand on every single platform I can to say that I was wrong and the Minister knew more than me. So I look forward to that!
I will conclude by saying that we all want something better and we all want victims to be treated better, and the hon. Member for Cheltenham has shown with passion how that can be realised. But unless we make sure our regulations are enacted, what we do in this place is slightly for nothing, so I ask the Government to look again at the amendments around victims’ rights.
Brandon Lewis
I beg to move, That this House agrees with Lords amendment 1.
Madam Deputy Speaker (Natascha Engel)
With this it will be convenient to take Lords amendments 2 to 23, 25 to 95, 97 to 133, 135, 143 to 158, 160 to 301, 303, 304 and 306.
Brandon Lewis
I am conscious that this group covers approaching 300 Lords amendments, even if many are of a technical nature, and I appreciate that hon. Members would no doubt like me to go through all 300, but time is short, so, tempting as it might be, I will confine my remarks to the most significant amendments, so that other hon. Members may have an opportunity to speak.
On Report, way back in April and June of last year, a number of my hon. Friends tabled amendments worthy of further consideration. The Lords amendments follow up on that work. My hon. Friend the Member for Cannock Chase (Amanda Milling) argued that when a police and crime commissioner took over the governance of a fire and rescue authority, the title of their office should be amended to reflect their new and expanded responsibilities. Lords amendment 215 provides that in such circumstances the legal title of the PCC will become police, fire and crime commissioner. My hon. Friend the Member for The Cotswolds (Geoffrey Clifton-Brown) proposed a number of sensible further improvements to our firearms licensing regime, and I am pleased to say that Lords amendments 111 to 113 give effect to three of his helpful suggestions.
My hon. Friend the Member for Selby and Ainsty (Nigel Adams) highlighted the dangers to music festival goers as a result of the irresponsible discharging of fireworks, flares and smoke bombs in the often confined space of a festival venue. Lords amendment 114 would tackle such reckless behaviour by making it an offence to possess a pyrotechnic article at a qualifying musical event. As my right hon. Friend the Secretary of State for Culture, Media and Sport indicated in April, we will ensure that this new offence is in force for this year’s festival season. My right hon. and learned Friend the Member for Harborough (Sir Edward Garnier) sought to strengthen police powers to require the removal of disguises where there was a threat to public order. Lords amendment 94 will enable the required authorisation by a senior officer for the exercise of such powers to be given orally where it is impractical to confer the authorisation in writing.
Other Lords amendments respond to points raised by Opposition Members. The hon. Member for West Ham (Lyn Brown) expressed concerns about PCCs taking on the governance of fire and rescue authorities. In response to similar concerns raised in the Lords, amendments 193 to 199, among others, strengthen the process by which a PCC brings forward a proposal for the creation of a PCC-style FRA to ensure that it is as robust and transparent as possible. She separately argued for a strengthening of the Licensing Act 2003 by putting cumulative impact assessments on a statutory footing. We agree, and Lords amendment 117 does just that.
Lords amendments 30 to 33 deliver on the commitment given by my predecessor on Report to amend the Bill to allow disciplinary action to be taken against former police officers outside the normal 12-month period following retirement or resignation in the most serious and exceptional cases. Lords amendments 36 to 42, among others, respond to representations from the Independent Police Complaints Commission and, indeed, from Opposition parties that the reformed organisation should retain the word “Independent” in its title. As a result of these amendments, the reformed IPCC will henceforth be known as the Independent Office for Police Conduct. This will help to reinforce public confidence that the reformed organisation will be fully independent of those it regulates.
On Report, the hon. Member for Stockport (Ann Coffey) argued that the current law requiring a coroner’s inquest in every case where a person dies under a deprivation of liberty safeguard, even where the death was from natural causes, caused unnecessary upset to bereaved families.
Dame Rosie Winterton (Doncaster Central) (Lab)
I wish to say how welcome amendment 135 is. As the Minister said, my hon. Friend the Member for Stockport (Ann Coffey) was particularly aware of the pressures this was placing not just on coroners but on social services. I am also extremely glad that my hon. Friend the Member for West Ham (Lyn Brown) on the Front Bench is, as I understand it, supporting the amendment as well.
Brandon Lewis
I thank the right hon. Lady for her remarks. Yes, we agree, and amendment 135 therefore removes the automatic requirement for a coroner’s investigation in such cases. There will be a continued duty on a coroner to investigate any death where there is a suspicion that it might have resulted from violence or unnatural causes or where the cause of death is unknown.
Last, but certainly not least, and importantly, Lords amendments 124 to 132 would right the wrongs suffered by gay and bisexual men who were for centuries persecuted under homophobic laws for conduct that society now regards as normal activity. These amendments will confer an automatic pardon on deceased individuals convicted of certain consensual gay sexual offences that would not be offences today, and 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.
The amendments will also enable the disregard scheme to be extended, by regulations, to cover other abolished offences used to target homosexual activity, including the offence of solicitation by men under section 32 of the Sexual Offences Act 1956. These provisions will extend to Northern Ireland as well as to England and Wales, with the Scottish Government having separately announced its intention to bring forward legislation in the Scottish Parliament.
At this point, I want to take the opportunity to apologise unreservedly, on behalf of the Government, to all those men who will receive a pardon. The legislation under which they were convicted and cautioned was discriminatory and homophobic. I want to make sure that all who were criminalised in this way and had to suffer society’s opprobrium, and the many more who lived in fear of being so criminalised because they were being treated in a very different way from heterosexual couples, actually understand that we offer this full apology. Their treatment was entirely unfair. What happened to these men is a matter of the greatest regret, and it should be so to all of us. I am sure it is to Members across the House. For this, we are today deeply sorry.
This is an historic and momentous step, one of which we can all be justly proud. I pay particular tribute to the Under-Secretary of State for Justice, my hon. Friend the Member for East Surrey (Mr Gyimah), who is the Minister responsible for prisons and probation, for the work he has done in government to make this happen. For his campaigning from the Back Benches, I would particularly like to mention, among others, the hon. Member for East Dunbartonshire (John Nicolson).
These Lords amendments improve and enhance the Bill, so I wholeheartedly commend them all to the House.
Ms Diane Abbott (Hackney North and Stoke Newington) (Lab)
I rise to speak to this large group of amendments. In moving on to making what I hope will be brief remarks, I have to say how disappointed I am that the Government were not willing to move on the question of parity of funding, which is an issue not just for groups of families involved in Hillsborough, but, as the hon. Member for Broxbourne (Mr Walker) pointed out, for individual families whose family members die in police custody. This relates to the previous group of amendments, but I wanted to make that point.
Some amendments in this group are welcome. We support the new emphasis on the independence of the new Office for Police Conduct, given the central role it will play in ensuring that the police are held to appropriately high standards. I am glad this has finally been recognised by the Government, and I pay tribute to the work of my noble Friend Lord Rosser.
We are also pleased that anonymity for victims of forced marriage will now be extended to Northern Ireland, following the request by the Northern Ireland Minister of Justice. There is also a number of sensible and straightforward improvements to the regulation of firearms, including a clarification of the laws around antique firearms, and alterations of the definition of airsoft guns that should improve public safety.
I also welcome the Government’s support for amendments to clause 28 that make it possible for investigations into the most serious misconduct to take place more than a year after the relevant officers have left the service. Credit is due in particular to my right hon. Friend the Member for Leigh (Andy Burnham) for his consistent arguments in favour of this reform. Families and communities who have been the victims of injustices in the past can be reassured that, in future, time need not run out on the service’s own disciplinary procedures.
Amendments 94 and 300 grant police officers the power to order a person to remove an item of clothing that is disguising their identity if a senior officer gives them oral permission to do so. This is obviously a practical measure, but we want some reassurance that this power will not be applied indiscriminately to Muslim women who are simply observing their religious beliefs, yet get caught up in the investigation of a crime. We would like the Government to consider ensuring that it is made absolutely clear in police training that the sole proper use of this power is to remove items of clothing that are purposely worn as a disguise. I ask the Government to look again at the language of the 1994 Act and to clarify to prevent such abuse.
The amended Bill also contains provisions for posthumous pardons for the victims of unjust laws that have subsequently been repealed. The Minister made a gracious reference to the work of the hon. Member for East Dunbartonshire (John Nicolson), who has tabled a private Member’s Bill on the issue. There is much to welcome in this set of amendments. My noble Friend Lord Kennedy, along with Lord Sharkey, Baroness Williams and others, played a key role in the debate. Lord Cashman made the amendments more comprehensive in scope by including the many men who had been unjustly targeted, and Lord Lexden supported the extension of the legislation to Northern Ireland. Those contributions would have enormously enriched any legislation on this topic.
Labour Members are pleased that the Government have apologised, and support the pardons for wrongfully convicted gay men who have now died. Placing an unnecessary bureaucratic burden on victims of injustice was clearly wrong. We also praise the expertise that has featured in the process and the debate. Although we believe that the Government could have gone further—especially in relation to the issue of pardons for people who were convicted under sexual offences legislation in the past purely because they were homosexual—we do not oppose their amendments.
Mindful of the fact that this is the last group of amendments we shall discuss before the Bill returns to the other place, I want to pay particular tribute to the expert views that have contributed to its progress. Many retired and serving police officers have made excellent contributions both here and in the other place, along with many learned members of the judiciary, and that has been reflected in the quality of the debate. It is important to note the expert nature of those contributions because in recent months some disdain has been expressed for expertise, although when it comes to police and criminal policy, expertise does not go amiss.
Nigel Adams (Selby and Ainsty) (Con)
I want to speak briefly about Lords amendment 114. Let me take this opportunity to thank the Minister, the current Secretary of State in her former guise as a Home Office Minister, and the Prime Minister in her previous role as Home Secretary for the work that they did with me in making the amendment possible. Provision for parity in law between people who let off fireworks, flares and smoke bombs at football matches and people who do so at music festivals is a step in the right direction. Every year hundreds of people are maimed and injured by flares, and I appreciate all the Government’s efforts. The amendment provides a good example for any Member who is thinking of trying to introduce a ten-minute rule Bill. It proves that laws can be changed in that way, as long as Members work closely with Ministers—and, in this case, Home Secretaries.
Brandon Lewis
I am grateful to my hon. Friend for thanking all who have been involved. He should be thanked as well, not just for the work that he did on his own account but for his work in bringing organisations together, so that they could act constructively to produce a workable provision.
Nigel Adams
I think it extremely important to work with industries when introducing new laws, to prevent any unintended consequences that might have a knock-on effect on them.
This is very positive news. During the next festival season, people will be able to go and enjoy themselves, and parents sending their kids off to festivals around the country will be safe in the knowledge that throwing flares is an offence. I hope that the amendment will discourage the lunatics from doing that next year, and, once again, I thank Ministers for all their work.
Wednesday 18th January 2017
(7 years, 3 months ago)
Lords ChamberRead Hansard Text Amendment Paper: HL Bill 91-I Marshalled list for consideration of Commons reasons and amendments (PDF, 109KB) - (17 Jan 2017)
This text is a record of ministerial contributions to a debate held as part of the Policing and Crime Act 2017 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
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Baroness Williams of Trafford
That this House do not insist on its Amendments 24 and 159, to which the Commons have disagreed for their Reason 24A.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, as the House is aware, Amendment 24 would require the Prime Minister to proceed with what is commonly referred to as the Leveson 2 inquiry into the relationships between the police and the media. When the House last debated this issue at Report stage on 30 November, I drew the House’s attention to the likely financial implications of the new clause, given that part 1 of the Leveson inquiry cost in excess of £5 million. In disagreeing with Amendments 24 and 159, the House of Commons has done so on the basis of financial privilege. This was the second occasion on which the Commons has rejected—both times by a substantial majority—an amendment to the Bill on this issue. The Companion to the Standing Orders makes it clear that in such cases the Lords do not insist on their amendment.
To that extent, I therefore welcome Motion A1 in the name of the noble Baroness, Lady O’Neill, but while Amendment 24B is clearly different in terms to Amendment 24, it none the less still seeks to bind Ministers’ hands and effectively compels the Government to proceed with part 2 of the Leveson inquiry. This is not how the Inquiries Act 2005 is intended to operate, and it is difficult to see why we should make special provision for one particular inquiry established under that Act. The 2005 Act already includes provision for changes to be made to the terms of reference of an inquiry and for the termination of an inquiry. Under the Act, the responsible Minister must consult the chair of the inquiry before changing the terms of reference or terminating the inquiry and must then notify Parliament.
In the same way as a Minister of the Crown is best placed to decide whether to establish an inquiry under the 2005 Act, we believe that the responsible Minister is also best placed to determine the public interest both for and against the continuation of an inquiry. Accordingly, we should not now be putting in place additional hurdles over and above those already set out in the 2005 Act.
I want to stress that, in putting forward Motion A, the Government’s case goes wider than simply one of cost. As I argued on Report, the Government are firmly of the view that, given the extent of the criminal investigations related to this issue that have taken place since the Leveson inquiry was established, and given the implementation of the recommendations following part 1, including reforms within the police and the press, it is appropriate that we now consider whether proceeding with part 2 of the inquiry is appropriate, proportionate and in the public interest.
It is for this reason that we launched a consultation on 1 November to help inform our further consideration of this issue. That consultation closed on 10 January, and it is estimated that we have received more than 140,000 individual responses as well as a petition estimated to contain more than 130,000 signatures. Noble Lords will be aware that an application has been made to judicially review the consultation. While I cannot comment on the ongoing legal proceedings, the Government have committed not to take any final decisions relating to the consultation until these legal proceedings have concluded.
Given the process that we have set in train for considering whether to proceed with Leveson part 2, and the fact that further legislation is not required should we decide to proceed with the inquiry, I put it to noble Lords that there are further good grounds for not continuing to press these amendments. As I have said, the elected House has already rejected an amendment on this issue on two separate occasions. I put it to noble Lords that we should not now send back to the Commons a revised amendment which would simply invite a further rejection. I beg to move.
Motion A1 (as an amendment to Motion A)
Lord Lester of Herne Hill (LD)
When I was young at the Bar there used to be a judge whose concurring judgments were commendably brief—he would simply say, “I agree”. I can say that about the speech of the noble Lord, Lord Pannick—I agree with him—and would add a few words. I declare an interest because I have given evidence in the consultation on why Section 40 is, in my view, arbitrary, discriminatory and contrary to freedom of speech and should not be brought into force. I have not given evidence on the other question in the consultation to which the noble Lord, Lord Pannick, referred, upon which many views have been expressed. I agree with what the noble Lord said about that.
As I have said again and again in debates in this House, Parliament has not shown itself to be fair minded in the way it amended two Bills in order to create a scheme to bully the newspapers into entering a regulatory framework other than the one now being admirably well conducted by Lord Justice Moses—IPSO. Contrary to what the noble Baroness, Lady O’Neill, has said, we now have an effective system of voluntary press regulation and the state and politicians ought to give it breathing space. I wish to make that clear.
When I was young I began believing in the philosophy of John Stuart Mill. That is why I am a Liberal. I remain a Liberal today, and that is why I am sympathetic to the Government’s position.
Baroness Williams of Trafford
My Lords, I shall respond first to the point made by the noble Lord, Lord Pannick. He is right to assert that Sir Brian Leveson will be consulted formally in due course in his role as the inquiry chair before any decision is taken. The noble Lord also made a point about the cost and other issues that have already been addressed. Lord Justice Leveson said:
“Before leaving the Ruling, I add one further comment … If the transparent way in which the Inquiry has been conducted, the Report and the response by government and the press (along with a new acceptable regulatory regime) addresses the public concern, at the conclusion of any trial or trials, consideration can be given by everyone to the value to be gained from a further inquiry into Part 2. That inquiry will involve yet more enormous cost (both to the public purse and the participants); it will trawl over material then more years out of date and is likely to take longer than the present Inquiry which has not over focussed on individual conduct”.
On the point made by the noble Baroness, Lady O’Neill, about Parliament voting on part 2 of the inquiry, in fact Parliament did not vote on part 2; the inquiry was established by Ministers under the powers of the 2005 Act. Parliament voted on Section 40, but in this Motion we are talking not about Section 40, but about Leveson 2.
On the point made by the noble Lord, Lord Rosser, about the Government already deciding to abandon part 2, as I hope I have explained, we have not made a decision on this; we want to take a view on it as part of the ongoing consultation. It is five years since the inquiry was established and since the scope of part 2 was set. We think a consultation is needed before a decision is made on whether proceeding with part 2 of the inquiry, on either its original or its amended terms of reference, is still in the public interest. In response to the point from the noble Lord, Lord Pannick, as I said, we will consult with Sir Brian Leveson formally in his role as the inquiry chair before any decision is taken.
Baroness O'Neill of Bengarve
My Lords, I thank the Minister for her reply and other noble Lords who have helped illuminate the issue we recur to. The noble Lord, Lord Lester, is perhaps a little optimistic in imagining that IPSO is a model of self-regulation. Perhaps he meant to say a model of self-interested regulation. The point is that Leveson provides not regulation, but an audit of the standard of self-regulation. As we all know, IPSO has refused to have its process audited. Its so-called independent review of what it did was to terms of reference that it provided and funded by itself. Just as we think a free market requires companies that are—
Baroness Williams of Trafford
That this House do not insist on its Amendments 96 and 302, to which the Commons have disagreed for their Reason 96A.
Baroness Williams of Trafford
My Lords, when we last debated what is now Amendment 96 on Report in December, I pointed to its potentially significant financial implications. The House of Commons has disagreed with the amendment on the basis of financial privilege. Given the normal conventions of your Lordships’ House, I trust that noble Lords will not insist on it.
However, let me assure noble Lords that this is by no means the end of the matter. While, in the usual way, the House of Commons has cited financial privilege as the only reason for disagreeing with the amendment, it has never been our contention that this is the sole ground for our believing that the new clause should not be added to the Bill. The Government’s view remains that the amendment is premature in that it pre-empts the outcome of the review by Bishop James Jones into the experience of the Hillsborough families and the Government’s subsequent consideration of Bishop Jones’s findings.
The noble Lord, Lord Rosser, and others have argued that the issue goes wider than Hillsborough. We do not dispute that, but the experience of the Hillsborough families, which will include the issue of legal representation at the original and subsequent inquests, is highly relevant to the broader question and it is right therefore that we take Bishop Jones’s current review into account in deciding this question.
As noble Lords may have seen, the review’s terms of reference were published earlier today. They state:
“The Review and Report will cover the history of the Hillsborough families’ experiences throughout the whole period, ranging from the conduct of past police investigations, through their engagement with public authorities, to the current investigations”.
The report will therefore cover a wide range of issues, including, as I have said, the families’ experiences of the various legal proceedings. Bishop James Jones will present his final report to the Home Secretary, including any points of learning that he may choose to highlight for the Home Secretary’s consideration.
It is envisaged that Bishop Jones will complete his review and produce his report in the spring of this year. I can assure the House that the Government will then give very careful consideration to his conclusions and any points of learning contained in his report.
In the knowledge that this issue remains firmly on the Government’s agenda and that there will, I am sure, be opportunities to debate it further in the light of the report, I invite the House to agree to Motion B. I beg to move.
Lord Rosser
I accept that the Commons Speaker has also certified the Lords amendment on this issue of parity of funding as engaging financial privilege and that the Commons reason for disagreeing with the amendment is that it would involve a charge on public funds. I want nevertheless to raise one or two points with the Government in light of what the Minister has said.
During consideration of the amendment in the Commons last week, the Minister there referred to the report by Bishop James Jones and said:
“Our view remains that we should await the report, expected this spring, from Bishop James Jones on the experiences of the Hillsborough families. The Opposition have argued that this issue goes beyond Hillsborough. I do not dispute that, but the experiences of the Hillsborough families will have significant relevance for other families facing different tragic circumstances, and the issue of legal representation at inquests will undoubtedly be one aspect of those experiences. Bishop James’s report will provide learning that could be of general application, so it is entirely right that we do not now seek to pre-empt his review, but instead consider this issue in the light of his conclusions”.—[Official Report, Commons, 10/1/17; col. 249.]
Those words make it pretty clear that Bishop James Jones has not been asked to look at the general issue of representation and funding at inquests where the police are represented, which was the subject of the Lords amendment. He has been asked to look at the experiences of the Hillsborough families. The Minister in the Commons stated that the report would provide learning that could be of general application.
Will the Minister say quite clearly one way or the other whether the Government consider that the terms of reference which Bishop James Jones has been given require him also to look at the issue of representation and funding at inquests generally where the police are represented? Alternatively, if the Government consider the terms of reference to be ambiguous on this point, has Bishop James Jones now been asked by the Government to address in his review the issue of representation and funding for families generally and not confine himself to the experiences of the Hillsborough families? Bearing in mind the way the Government have used the existence of the Bishop James Jones review and the forthcoming report as an argument for not going down the road of the amendment that was passed in this House, which deals with the position at inquests generally, I think there will be some concern if, when the report comes out, it is clear that it relates only to the experiences of the Hillsborough families and that the issue of whether it should or could have wider implications for representation and funding for families at inquests generally has not been considered. I would be grateful for some very clear and specific answers from the Government to all the questions I have just asked.
Lord Faulks (Con)
My Lords, the noble Lord, Lord Rosser, seemed to suggest that the Government are using the Bishop Jones report as some sort of excuse to not respond to what is suggested by the amendment. Of course, I will hear what my noble friend has to say, but as I understand the position, the question is being considered very seriously by the Government but it would be rather strange not to consider a report of this magnitude dealing with the best-known example of a series of inquests with improved legal representation before coming to the conclusion, to which they may or may not come, that a response to the amendment is appropriate.
Baroness Williams of Trafford
I thank noble Lords who have made points on this Motion. My noble friend Lord Faulks is absolutely right that the whole point of establishing an inquiry or a review—one of such magnitude on an event that will be ever seared on people’s minds; that is, the horrors of Hillsborough—is to learn the lessons of that event so that they can be applied to similar cases in the future. The noble Lord, Lord Laming, is not in the Chamber, but I was reflecting on the lessons that local authorities learned from the terrible death of Victoria Climbié at the hands of her relatives. These reviews always have that wider learning that can be applied in the future. The terms of reference do not require Bishop Jones to look wider but the learning from the review will have wider application.
I understand the point made by my noble friend Lord Hailsham about the coroner. We talked at length both in Committee and on Report about an independent assessment of these matters. Of course, for me to respond about whether or not that is the right way would pre-empt the review so I will not go there. But I hope that noble Lords find those comments helpful.
Baroness Williams of Trafford
Moved by
That this House do not insist on its Amendments 134 and 305, and do agree with the Commons in their Amendments 134A and 305A in lieu.
(1) In the Protection from Harassment Act 1997 —
(a) in section 4 (putting people in fear of violence), in subsection (4)(a), for “five years” substitute “ten years”;
(b) in section 4A (stalking involving fear of violence or serious alarm or distress), in subsection (5)(a), for “five years” substitute “ten years”.
(2) In the Crime and Disorder Act 1998, in section 32 (racially or religiously aggravated harassment etc), in subsection (4)(b) (which specifies the penalty on conviction on indictment for an offence under that section which consists of a racially or religiously aggravated offence under section 4 or 4A of the Protection from Harassment Act 1997), for “seven years” substitute “14 years”.
(3) The amendments made by this section apply only in relation to an offence committed on or after the day on which this section comes into force.
(4) Where the course of conduct constituting an offence is found to have occurred over a period of 2 or more days, or at some time during a period of 2 or more days, the offence must be taken for the purposes of subsection (3) to have been committed on the last of those days.”
Baroness Williams of Trafford
My Lords, the House will recall that Amendment 134 sought to increase the maximum penalty for the more serious stalking offence, where the behaviour of the offender puts a person in fear of violence, from the current five years to 10 years. The amendment would also increase the maximum penalty for the racially or religiously aggravated version of the offence from the current 10 years to 14 years. I would like to thank the noble Baroness, Lady Royall, but she is not in her place so I thank her in her absence, for introducing that amendment and explaining her concerns about the current maximum penalties during the debate on this amendment on Report.
The Government have reflected carefully on that debate and wish to ensure that the criminal justice system deals with these offences properly. The Government continue to keep maximum penalties under review and are ready to increase them where there is evidence that they are not sufficient to protect victims. Current sentencing practice suggests that, in the majority of cases, the maximum penalty of five years is sufficient to deal with serious stalking. In a small number of the most serious cases, however, courts have sentenced near to the current maximum. For those most serious cases, we are persuaded that judges should be able to pass a higher sentence than the current five-year maximum. This would afford greater protection to victims and be commensurate with the serious harm caused by these cases. The Government therefore tabled Amendment 134A, to which the Commons agreed, which replicates with some fine tuning the provisions of the noble Baroness’s amendment.
However, we are going further. As I said during debate on Report, we are keen to retain consistency between penalties for related offences. The Commons amendment in lieu will also therefore increase the maximum penalty for the related Section 4 harassment offence of putting a person in fear of violence. In line with standard practice, Amendment 134A also provides that the increase in maximum penalties for these offences will apply only to crimes committed on or after the date of commencement. As the Commons amendment in lieu builds on Lords Amendment 134, I trust that in the absence of the noble Baroness, Lady Royall, the whole House will be content with the substitution. I therefore beg to move.
Viscount Hailsham
My Lords, I am sorry to say that I really disagree with my noble friend on this matter. There is absolutely no justification for increasing the maximum sentence, and I have two reasons for saying that. First, I do not believe that the increase will provide an additional deterrent. Either the person in question is rational, in which case a maximum sentence of five years is a sufficient deterrent, or they are not rational, in which case it will make precious little difference. I note my noble friend’s point that the judges have rarely sentenced at the higher end of the existing maximum. My other point is a general one. I am very concerned about overcrowding in prisons. There has been a tendency to increase the sentences imposed by the courts. The newspapers and Parliament are responsible for that in part, and I do not wish to see Parliament increasing the pressure on our prisons. This is a small contribution to that, and I am bound to say I am against it.
Baroness Williams of Trafford
My Lords, to address the point made by my noble friend Lord Hailsham about the maximum penalties and overcrowding in prisons, the prison population has remained relatively stable since 2010. The Justice Secretary is clear that she wants to see more early intervention and a reduction in reoffending. To that end, we have launched a White Paper outlining our plans to make prisons places of safety and reform, and we have announced a comprehensive review of our probation system.
On the point that the noble Lord, Lord Pearson of Rannoch, made, I fear I will disappoint him again. It is a matter for the court and the CPS to determine the points that he makes.
Baroness Williams of Trafford
That this House do not insist on its Amendments 136 to 142 and 307, to which the Commons have disagreed for their Reason 136A.
Baroness Williams of Trafford
My Lords, the elected House has disagreed with these Lords amendments by a substantial majority of 100. In inviting this House not to insist on these amendments, the Government recognise that there are legitimate concerns about the operation of the victims’ code—I stress that—and that there is scope for improvement, but I put it to noble Lords that seeking to shoehorn these new clauses into the Bill when they have not had the benefit of detailed scrutiny either in this House or in the other place is not an appropriate way forward. This House rightly prides itself on its effective scrutiny of legislation. In the case of these amendments, however, we have had what amounts to, at best, a short Second Reading-style debate on the case for strengthening victims’ rights.
While the underlying objective of these amendments—namely, improving the experience of victims and witnesses in the criminal justice system—is one we can all wholeheartedly support, the Government continue to have serious concerns regarding their substance. I welcome the fact that the noble Baroness, Lady Brinton, now wishes to focus on just two amendments rather than on all seven new clauses added to the Bill on Report but, as with the others, we foresee a number of problems with Amendments 137 and 138. I thank her for meeting me yesterday, together with the noble Lords, Lord Paddick, Lord Rosser and Lord Tunnicliffe, but, as we discussed in relation to Amendment 137, the victims’ code—a statutory code of practice—includes a wide range of entitlements for victims of crime, including being entitled to receive information on their case. For example, under the code, victims should be informed about: the police investigation, such as if a suspect is arrested and charged and any bail conditions imposed; if a suspect is to be prosecuted or given an out-of-court disposal; the time, date, location and outcome of any court hearings; and any appeal by an offender against his or her conviction or sentence.
Lord Rosser
My Lords, we, too, support the objectives behind the amendment that was moved so eloquently by the noble Baroness, Lady Brinton, for the reasons that she herself set out. We also associate ourselves with the comments made by the noble Baroness about Jill Saward.
The issue is that the current victims’ code is not legally enforceable and there is clear evidence that it is not being applied and acted on by the relevant agencies to the extent that was clearly intended—to the detriment of the victims it was intended to help. The amendment provides for victims’ rights to be placed on a statutory footing and for the Secretary of State to address the issue of training for all relevant professionals and agencies on the impact of crime on victims.
I share the view that the Government, in the statement made by the Minister today, have been considerably more helpful and constructive in their response than they were during consideration of the Lords amendment in the Commons last week.
Finally, I, too, express my thanks to the Minister for her willingness to meet us. I hope that we have reached a stage at which there will be some accord on this issue.
Baroness Williams of Trafford
My Lords, I do not think that there was a lack of accord. In fact the whole way through these discussions I felt that we were seeking the same ends; it was just a matter of how we got there. I add my tribute to that of the noble Baroness to Jill Saward. I read about her the other day, and what she went through was absolutely heart-breaking as well as devastating while her father and then fiancé were downstairs. How she gathered the strength to not only waive her right to anonymity but help so many other people is quite inspiring and not something that everybody would feel able to do.
Following discussions today, yesterday and previously, we have reached a consensus on this and I hope that the words that I read out have given noble Lords confidence as we move forward to publishing this strategy within the next 12 months. I thank all noble Lords for their part in this debate.
Baroness Brinton
I thank all noble Lords who have spoken in this debate, and thank again the Minister for the words that she said from the Dispatch Box, which meet my concerns at the moment. I shall be interested to see the result of the review and consultation. If we feel that there is not strong enough legislation coming through afterwards, I suspect that more amendments will appear in further course. In the meantime, I beg leave to withdraw the Motion.