(11 years ago)
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Baroness Henig
Baroness Henig (Lab)
My Lords, in moving this amendment I must first declare interests as a former chair of the Security Industry Authority, and as a current adviser to the British Security Industry Association and a Scottish private security company.
At this stage these are probing amendments to try to find out to what extent the Government are retreating from their commitments to the private security industry, first made three years ago by the noble Baroness, Lady Neville-Jones, in this House, and again last autumn by the noble Lord, Lord Taylor, at a Security Industry Authority conference, when he pledged that the Government would introduce business licensing of companies in the private security sector along with individual registration by the end of this calendar year—which is to say, in the next three weeks. The noble Baroness, Lady Neville-Jones, also promised appropriate enforcement powers to back up the new arrangements.
We are in quite a novel situation. An industry is begging the Government to regulate its businesses with a range of proportionate penalties for non-compliance, and despite the promises and the Home Office consultation, which shows that the great majority of representative bodies and companies support that, nothing is happening. How strange, then, that in other arenas the Government are rushing to regulate: trade union activity, to give one example.
In the context of these amendments I must spell out why business licensing of private security companies that work alongside the police and of those that carry out extradition escort duties is so necessary and so important. It is because we need to continue to drive up standards across the industry. That started with individual licensing, which was introduced 10 years ago but which must continue, to protect the public and to win both their confidence and that of the strategic partners with whom private security companies work, such as the Government and the police.
We also need to tackle the continuing influence of organised crime gangs in this important sector and to focus regulation on companies while reducing the burden on individuals. The public need to be able to hold companies to account for failures and wrongdoing, not just individuals. Thus far, the Government have proposed only secondary legislation to introduce a form of mandatory approvals for businesses under existing legislation. They have not, they told industry representatives, identified the opportunity for the necessary primary legislation. Given the wide-ranging nature of this Bill, I am surprised that it has not proved possible to insert into it somewhere along the line business licensing for private security companies.
The need for primary legislation is urgent; the benefits that the change would bring are significant for legitimate businesses and for public safety. Furthermore, the uncertainty created by the failure to bring forward this legislation is having an adverse impact on businesses and industry leaders, because they have to cope with continuing lack of information as to how their industry will be regulated, if and when changes will be made, and how much it will cost. My amendments at this stage seek to ensure that companies working alongside the police, and those involved in extradition escorting must be regulated by the Security Industry Authority. My objective is to ensure that all businesses providing security services in the areas covered by the Private Security Industry Act are licensed and that there are powers available to the regulator to allow effective and proportionate enforcement of the regime.
The question that I want to put to the Minister and the coalition Government is this. Are you still intending to carry through the changes you promised in 2011 and said were so urgent that they had to be implemented by the end of this year, or have you decided to abandon them? If the latter is the case, can you please tell the industry and the regulator, so that we can decide how to respond? If you are still going ahead, please could you come back at Report with some appropriate amendments? If you are not able to do that, I and colleagues will be happy to draft some new clauses for you to adopt. But please make up your minds on this issue, which is very important, not just for the industry but for public protection. I beg to move.
Baroness Harris of Richmond (LD)
I have added my name to this amendment, and refer Members to my former policing interests in the register. I have long felt that it was important to ensure that adequate training was given to anyone from the private security sector who would be working with the general public and, especially, the police.
Many years ago, when I was a member of my police authority in North Yorkshire, we pioneered doorkeepers, who were specially trained and motivated to work in a range of areas, in particular in nightclubs. Up until that time, it was customary to employ hefty and largely untrained men who would quickly get involved in any scuffles that were going on in the nightclub, or outside it, and who escalated the incident more often than not. Eventually, the police felt that they needed to do something about this and proposed that they trained the doorkeepers. They received a certificate at the end of their training, which became the basis of our having properly trained people dealing with potentially difficult situations, with the help and support of police officers who knew their abilities and limitations.
Fast forward a lot of years to the introduction of the Security Industry Authority, which regulated the private security industry and introduced individual licensing, which has proved to be an enormous success and gained, as we have heard, much support from both the public and police, who saw their registration as being a sign that they had been properly trained and accredited. But it should not end there, and this is the purpose of bringing this probing amendment to your Lordships’ attention. Accountability for actions must not be simply laid at the door of individuals. Companies have a great deal of responsibility in this area and they, too, need to be held accountable if they have been lax about ensuring the proper training and professionalism of their operatives.
We have, I hope, gone long past the time when we saw rogue companies getting away with questionable practices, and unless proper regulation is undertaken we may find ourselves once again in a position of trying to fend off organised crime, which will impact on legitimate businesses. You can be sure that the rogue operators will be looking carefully at what is proposed in the Bill so that they can bypass having to regulate their staff and businesses, especially those who will be working with the police.
However, the words in the briefing note—which was kindly sent to me by the Home Office and I thank it for that—do not really give me much comfort. The consultation proposed,
“a phased transition to a new regulatory regime of business licensing, together with some changes to how individuals are licensed to work within the industry. Following the consultation, the Home Office is enacting reforms in two stages, with provisions that require primary legislation being implemented later, so that the industry can begin to benefit from business regulation introduced by secondary legislation as soon as possible. We are working towards businesses being able to apply for a licence from April 2014”.
In the mean time, what has happened? Businesses do not need to bother ensuring that they will be able to comply with the spirit of regulation. The police need to have confidence in the people they are operating alongside. The public also need to be confident that private security personnel are properly registered and accredited and that companies which make a lot of money out of guarding, escorting and handling extremely important items and persons can be held to account for their actions. This was promised and I hope my noble friend the Minister will be able to reassure the noble Baroness, Lady Henig, who has an enormous amount of experience in these matters, that the proposals given to this House previously have not been abandoned.
Lord Stevens of Kirkwhelpington (CB)
I support the noble Baronesses, Lady Henig and Lady Harris of Richmond. I also remember the promises made to this House by Ministers who preceded the noble Lord. There has been a long history in relation to the private security industry and I declare my interest as chairman of Skills for Security, which does all the training for the private security industry. I have been in that position for some time.
The history of this goes way back. The police service has had grave concerns over the past 10 to 15 years about rogue companies in the private security industry, with some issues that were very much into the criminal arena of behaviour. It surely makes sense for there to be an approach that follows the promises made to this House and talks about the responsibility not just of individuals but of companies. Large companies in this country have a responsibility. They do a very good and important job in the private security industry. It makes sense for these companies to be held accountable as an identity rather than individuals within the company. It follows government policy in terms of making companies responsible for the negligent and highly negligent actions of their employees. It would ensure that companies can be held to account and investigated by the IPCC, something we talked about earlier in this House. It would also address the continuing uncertainty that is impacting on business planning, which some of us involved in this area have identified with other people also talking to us about their concerns.
Everyone in this House will know about the increase in organised crime. A number of organised crime gangs operate in this area. Some of them infiltrate companies and some are part and parcel of companies. It makes sense, if that is the case, that companies in general should be held accountable. The other area which is important—and my noble friend Lady Harris of Richmond talked about it—is training. It is something I know a little about, having borne that responsibility for some time. It is essential that when training is done it is done with certainty. That means that if there is accountability, it is there for those people in the company as a whole, whether it be big companies such as G4S or the smaller companies that some of us are involved in.
If this amendment were taken up—it is a probing amendment, of course—it would add to public confidence. The police service in general would know where it stood and government agencies also would know exactly what they were working with and exactly how to tackle some of the difficulties that sometimes happen in the private security industry.
Lord Rosser (Lab)
My Lords, I will be brief. My noble friend Lady Henig indicated that this is a probing amendment which has been tabled as there are doubts about whether undertakings given previously still stand. In view of the obvious importance of this issue, which is clear from the contributions made to this debate, we shall certainly listen with interest to the Minister’s answer.
The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach) (Con)
I thank noble Lords for their contributions and for the concise way in which they have addressed this important issue. I am grateful to the noble Baroness, Lady Henig, for presenting these amendments—not that I am going to accept them—as the SIA is one of my departmental responsibilities within the Home Office. She mentioned commitments that I made last year at the annual general meeting of the SIA. I made similar commitments by video link; unfortunately, I could not be there as I was dealing with a Bill and could not be in two places at the same time.
I reiterate our commitment to the SIA. No one knows more than the noble Baroness, Lady Henig, how important that body is, given her distinguished service as its chairman. We also appreciate the points made by the noble Lord, Lord Stevens of Kirkwhelpington, on the importance of business licensing for the development of the industry. We are at one in that aim and we have not been idle on this issue. There has been a public consultation on the process and we have published the Government’s response to it. As the noble Baroness may know, we do not need primary legislation —we do not need to put anything in the Bill—to introduce business licensing. It would be introduced by secondary legislation and would cover issues such as door supervision, security guarding, cash and valuables in transit, close protection, CCTV and public surveillance, and key holding—the traditional areas. However, noble Lords will be aware that one of the consequences of the Leveson report is that private investigators should also come within the ambit of the regulatory body—the SIA. Therefore, there is a lot to do. I reassure my noble friend Lady Harris of Richmond that we are still very much on target.
I turn to the amendments. Amendment 56QA seeks to link the application of the complaints and misconduct framework overseen by the IPCC to SIA-regulated businesses. As the noble Lord, Lord Stevens, said, the police work with the private sector on many different aspects of their work, many of which are outside the security industry and, as such, it was never the intention that the provisions of the Private Security Industry Act would apply. I shall describe the sorts of thing that I am talking about. These include, for example, call handlers in police control rooms or inquiry office staff. In addition, forensic science work, which is, of course, integral to the police service, is regulated by the forensic science regulator, and would be excluded.
The intention behind Clause 121 is to ensure that the oversight of complaints and conduct matters by the IPCC extends to all private contractors, subcontractors and their employees carrying out functions for the police where those functions have been traditionally carried out by police officers and police staff, so that where there has been a move towards the civilianisation of police functions, these should be covered. Police forces are increasingly entering into contracts with private sector organisations—I come from Lincolnshire, a county which probably pioneered that—many of which fall outside the SIA-regulated regime, but which should, none the less, be subject to investigation by the IPCC for wrongdoing. I think that the public would rightly expect this to be the case.
Amendment 95ZA raises similar issues in the context of the transit through the UK of people being extradited from one country to another. Again, I understand the noble Baroness’s concern to prevent untrained and potentially unsuitable individuals being given delegated authority for facilitating these transits.
Although I agree with the intention behind the amendment, I believe that we can achieve all this through other, more workable means. I say that because the Government plan to amend this clause in recognition of similar concerns raised by the Delegated Powers and Regulatory Reform Committee—namely, that the power to specify descriptions of those who might in future facilitate the transit through the UK of persons being extradited from and to another country is cast in wide terms. The committee felt that this should be seen in the context of the powers of authorised officers, which include the power to detain persons in custody, and therefore that the delegated power should either be circumscribed in the Bill or subject to the affirmative procedure.
We have listened to the views of the committee and, in response, have tabled an amendment which will apply the affirmative resolution procedure to this order-making power. This will mean that the only categories of persons able to undertake escort duties will be those approved by both Houses. An example of the type of persons who might undertake this escort role is Border Force officials. Whoever is empowered to carry out the role will be subject to the extradition codes of practice, which are based on the equivalent PACE provisions. I hope that the noble Baroness will be reassured that there will be proper oversight and scrutiny of those who undertake quasi-police functions and exercise police powers, and that she will be content to withdraw her amendment.
In relation to the SIA, the Private Security Industry Act 2001, which underpins the SIA’s regulatory activities, specifically states that licensing requirements do not apply to activities carried out by a detainee custody officer and a prison custody officer, both as defined by the Immigration and Asylum Act 1999. Therefore, the effect of this amendment would be to create conflicting legislation, with a question as to which Act was supposed to apply to these people. The SIA currently has no remit for regulating this type of activity; nor is it the Government’s intention for it to do so in the future.
I hope that the noble Baroness, Lady Henig—I keep thinking of her as “my noble friend”, although, according to the traditions of the House, I should not call her that—will accept my commitment on business licensing and on the determination of the Government to continue their policy objective of advancing the interests of the SIA. We see it as developing an increasingly important role in public protection in this country.
Baroness Henig
I thank the Minister for his response. I listened very carefully and particularly took note of the points that he made about escorting for extradition proceedings. However, I am somewhat disappointed with some of the general points that he made. He said that the Government had not been idle. Three years have passed and nothing has happened. I do not know what definition of “idleness” the Minister is using but in my book three years is quite a long time for nothing to happen. He assured the noble Baroness, Lady Harris, that the Government were very much on target. However, they clearly are not on target, because both the Minister and the noble Baroness, Lady Neville-Jones, said that this whole process was going to be completed by the end of this year. Therefore, how can he say that the Government are very much on target when they patently are not? I am sorry but that is not very reassuring.
There was mention of secondary legislation. I have to say to the Minister that the problem with secondary legislation is that there cannot be a range of enforcement mechanisms; nor can there be appropriate sanctions. The industry has made it clear that to have business licensing without appropriate enforcement mechanisms is a recipe for disaster. It means that the good companies will go along with things and the bad companies will not face any sanctions. To businesses, that is a worse prospect than no legislation. They are very alarmed about that secondary legislation.
I know that businesses will be very disappointed with the Minister’s response. He has offered nothing. He has offered no assurances and has not said that the Government will bring anything back. We have here very appropriate legislation for something far more substantive. I have some sympathy for the Minister who I think would like to move further. I am quite sure that the problems are not necessarily in the Home Office but in other parts of government. None the less, the industry is disappointed because the opportunity is here to take a big step towards what it wants and what obviously would be of benefit to the public, but it is not being taken. I understand, and I sympathise with the fact, that industry leaders, probably even today, have made it clear that they will withdraw from a lot of co-operation with the Home Office because of the disappointment and frustration that they feel at the Government’s inability to take this forward. For the life of me, I cannot understand the problem with going ahead with business licensing in a proper manner through primary legislation.
At this stage, I am happy to withdraw this probing amendment but some of us may want to look at this issue again to see whether there are amendments that we could table on Report, which perhaps might find a more favourable response. I beg leave to withdraw the amendment.
Lord Taylor of Holbeach
Lord Taylor of Holbeach
My Lords, these government amendments implement the recommendation of the Delegated Powers and Regulatory Reform Committee in relation to Clause 126. They ensure that there is parliamentary scrutiny of any decisions to designate countries, police forces and ranks under that clause. It is entirely appropriate, given its role, that the College of Policing should play a central part in the designation process, so the clause continues to require the Home Secretary to act only after receiving its recommendation. It will remain up to the Home Secretary whether she implements the college’s designations. However, by putting the designations in secondary legislation subject to the negative resolution procedure, we are ensuring that there is an appropriate opportunity for Parliament to consider them. I commend these amendments to the Committee.
For the time being, I will listen to what the noble Lord, Lord Blair, has to say about his amendment, which is in this group, before I respond to the debate that is likely to follow.
Lord Blair of Boughton (CB)
My Lords, I draw the attention of the House to my registered interests in relation to policing. Amendment 105 stands not only in my name but also in the names of the noble Lord, Lord Condon, and the noble Baroness, Lady Manningham-Buller. The noble Baroness is not able to be in your Lordships’ House today and has asked me to present her apologies for that. However, I am in a position to say that she remains in firm support of this amendment. Amendment 105 is not affected by, nor affects in any specific terms, the other amendments in this group put forward by the Minister. It is not an amendment to Clause 126 but is about Clause 126. It is actually an addition to the Bill’s last clause, Clause 160—the enactment clause—and can be found at the end of today’s Marshalled List. I am grateful to the Minister for his part in arranging to have it debated now as it is related not to the whole Bill, nor even to the enactment of the whole Bill, but only to the enactment of Section 126.
The amendment is triggered by concerns about how the opening of senior UK police posts will affect those few police chief officer posts that are deeply concerned with UK national security and intelligence. It suggests that the Government should seek the advice of the Intelligence and Security Committee about this point before Section 126 is enacted.
After that, the first thing to say is that neither the noble Lord, Lord Condon—who will be speaking later —nor I have any objections in principle to the appointment of senior officers from abroad, notably those from Commonwealth countries, to UK police positions. That would be hypocritical in that senior UK officers have reasonably often and recently commanded police forces in Commonwealth countries, including Australia.
However, it is pertinent to note that no UK officer has ever been considered to command the Australian Federal Police or for appointment to be director of the FBI or the commissioner of the NYPD for a particular reason. Those posts are concerned with the national security of the United States or Australia, and the postholders routinely share secret intelligence with their national security services. Here our amendment comes to the point. There are similar posts in the UK. There are senior police officers intricately involved in the security and intelligence arrangements of the UK. The amendment picks out four of them and seeks to understand how the Government foresee that these posts can be held by non-UK citizens. It is not easy to see how that would be possible.
The first two of the four we have selected are: the Commissioner of Police of the Metropolis, who is responsible to the Home Secretary for overall national co-ordination of police counterterrorism activity in the whole of the UK, excluding Northern Ireland; and the deputy commissioner, who holds the full powers and duties of the commissioner in the absence of him or her. That is why these two posts alone are royal appointments on the recommendation of the Home Secretary and are not appointed and never have been by a police authority, the police and crime commissioner or even the Mayor of London.
The third post is one of the currently four assistant commissioners of the Met currently described as assistant commissioner specialist operations, appointed by the commissioner to have full-time, day-to-day responsibility for national counterterrorism policing and liaison with the security services. As an assistant commissioner, he or she—it is currently a she—is one of the most senior chief constables in the UK. He or she chairs the ACPO committee on terrorism, ex officio, and has executive jurisdiction throughout the UK except for Northern Ireland. Counterterrorism is not a devolved matter. General policing is, but not counterterrorism, which is what makes these posts so special.
The fourth post is that of the director-general of the new National Crime Agency. We have included this post partially because the NCA has been selected recently by the Government as a potential successor to hold the Met’s current CT responsibilities. But in any event, he or she will already handle secret material in relation to organised crime and child pornography, both of which have significant international dimensions.
All these postholders must be security cleared to the very high level known as developed vetting. The first requirement for DV, as it is known, is that, as far as I and the noble Baroness, Lady Manningham-Buller, can recall, the individual must be a UK citizen and must have lived in the UK for a decade. If that is not true or has been changed, it would be useful to know, so I hope the Minister can tell the Committee.
It is extremely difficult to imagine these postholders being able to carry out their roles without access to the full range of CT intelligence, which a person will not have if they are not DVed. Furthermore, particularly in the case of a US rather than perhaps a Commonwealth citizen, it is possible that a foreign postholder would inevitably have mixed allegiances. Many counterterrorist operations are highly international and fast moving, being briefed upwards to Prime Ministers and Presidents. It is inevitable that, during a near crisis, different Governments will have different security priorities at different times. COBRA, in which the commissioner and the assistant commissioner specialist operations sit, battles with this regularly.
The noble Lord, Lord Condon, will return to this matter. He will also speak about the fact that the Metropolitan Police Commissioner is responsible for the protection of the monarch and her heirs and successors, as well as the Prime Minister, some Ministers and some foreign ambassadors. We understand that appointments like these will not be undertaken lightly and that they will be political—in the best use of the word—decisions involving senior Ministers. The Government have a clear duty to lay out what mechanisms they would use to mitigate the difficulties I have outlined. In the second section of the amendment we make a proposal which provides a parliamentary solution to the problem. This suggests a delay to the enactment of Clause 126—and only that clause—until such time as the Secretary of State has sought and received advice from the Intelligence and Security Committee on the viability of appointing foreign nationals to these four posts and has ensured that the committee’s findings have been laid before both Houses of Parliament.
This is not a frivolous amendment. It is about a very serious national security issue. The fact that all four noble Lords who have held the office of Metropolitan Police Commissioner are sitting here at this time of night is an indication that there may be something we need to consider. There are no vacancies at present in any of these four posts. A referral to the ISC would create no delay. If that is not what the Government wish to do, what does the Minister propose to do to mitigate this situation?
Lord Condon (CB)
My Lords, I put my name to Amendment 105, not seeking to undermine Clause 126 in any way. I supported Clause 126 at Second Reading and spoke of the example of a Canadian Governor of the Bank of England. I am certainly not against, in principle, the notion of exceptional overseas candidates leading police forces in the UK. Like my noble friend Lord Blair, I am merely seeking to explore the additional challenges and hurdles of appointing an overseas candidate to one of the posts mentioned in the amendment. In particular, I would like to explore the challenges of appointing an American citizen to the post of commissioner. Without overpersonalising it, I believe we got reasonably close to an attempt to appoint an American the last time there was a vacancy for that post.
An American citizen has an unequivocal duty, first and foremost, to the laws, constitution and interests of the United States of America. Imagine an American appointed to the post of commissioner who finds himself or herself in the Cabinet Office briefing room with the Prime Minister and heads of the security services at a time of national crisis. This country and the United States of America might have subtle, or even significant, policy differences and interests at that time. In the recent past, for example, extraordinary rendition, Irish terrorism and mega-data collection have all led to subtle or significant differences between our country’s policy approach and that of the United States of America, one of our oldest allies. There are additional challenges which are not insurmountable but it is important to place on record that these issues must be taken account of at some stage when the Prime Minister and Home Secretary of the day get close to appointing an overseas candidate.
In addition, the commissioner has a personal role in protecting the monarch and those in the line of succession, whether they are in this country or anywhere in the world. I had the honour of holding the post of commissioner for seven years and swore an oath of allegiance to Her Majesty the Queen. There will be times in the future when there may be subtle or significant differences over protection arrangements for our monarch and the line of succession when they find themselves in other parts of the world. Again, these are not insurmountable challenges but they are important considerations to have on record. No other country, as my noble friend Lord Blair has said, has even come close to considering a foreign national in an equivalent security-sensitive senior police post.
Lord Stevens of Kirkwhelpington
My Lords, I, too, support my noble friends Lord Blair and Lord Condon and have little to add to what they have said. However, I would flip the coin on to the other side and ask the Minister and the Government what the strong reasons are for doing this. If there are strong reasons, let us hear them.
Lord Elystan-Morgan (CB)
My Lords, I am sure that it will come as no surprise to the Minister that I take exactly the same view as that put forward with so much restraint and moderation by the three noble Lords who have spoken. I considered the appointment of police and crime commissioners a tremendous mistake on the part of the Government and the Opposition. Both parties, I think for the best reasons in the world, believed that there had to be some supervision of the police force that would satisfy certain doubts and fears rampant among the public at the time. I believe with all my heart and conviction that they were wrong. It was wrong to consider that a commissar—for that is really what a commissioner is—could be introduced into a force that has a structure of disciplined hierarchy without defeating the very basic element of discipline in that force. You could not do it in the armed services unless it happened to be the Red Army or the army of the People’s Republic of China. You would not think of doing it in the armed services. It has the effect of eating like acid into the morale of the police—we have already seen very many instances of how the life of a chief constable can be made absolutely impossible by a commissioner, and we will see worse.
I am no prophet or son of a prophet but I am sure that as time runs on and the period of a commissioner’s tenure comes towards its end, where that person gave huge promises and undertakings as a candidate that have not been delivered, he will turn round and say, “This is all due to the chief constable. This man”—or this woman—“has to be removed”. I cannot imagine anything that would eat into the morale of the police service in a more destructive way than that. If my noble friends had proposed cancelling the powers in Clause 126, I would have supported them. I would support anything that diminishes the authority of a commissioner and, for that reason, I support this amendment.
I say, with great humility, that my attitude has everything to do with what I conceive a police service to be. I had the very high honour—believe it or not, 45 years ago—to be police Minister in the other place, serving under James Callaghan. James Callaghan would say very often, “Do you know what the police service is, as far as I am concerned? It is a case of citizens in uniform”. The powers that the ordinary constable has today have been increased over the past 45 years but they are still moderate in relation to the general powers and responsibilities that the ordinary citizen has. The powers of arrest are not immensely greater, but I am not here to lecture the House on that matter.
I will say that the concept of a commissioner was wrong. Anything that can dilute those powers will be right and anything that would give him the power that is possibly inherent—there is dubiety about the matter—in the execution of Section 126 is to be very much welcomed.
At the moment we have a clutch of scandals in relation to the police. It gives me no pleasure at all to make that point. The situation was not very different in the early 1960s, when the royal commission under Sir Henry Willink was set up. The work that was done was brilliant and imaginative. It led to the Police Act 1964, which was one of the most progressive advances made in relation to policing in the United Kingdom. I think that such a study is due again, and should examine very carefully whether we need the office of a police commissioner.
I will end with an edited quotation from Oliver Cromwell, to his Long Parliament: “Consider that you may yet be wrong”.
Lord Imbert (CB)
My Lords, I support my noble friends Lord Blair and Lord Condon. As we know, they were both commissioners of the largest, most envied and most copied police service in the western world, the London Metropolitan Police, as was I for six years from 1987 to 1993.
The amendment is about Section 126 of the anti-social—and, it seems, in some respects anti-police—Bill that is before us. No, I have not made a mistake. This Bill and other legislation that the Government have brought forward in the past few years accurately reflect their disdain for the police service in this country. Indeed, it reflects the contempt in which the Government hold the service that other Governments and police services throughout the world hold as the example and model, and which every country I visited during my career wished to emulate.
These countries include in particular the USA, where they wanted to know about the British way; Russia, where I was asked to speak to senior personnel about policing in a democracy; South Africa, Malawi, Kenya and other African states; France, Italy, Germany, Australia, Japan and Argentina. I shall not go into detail at this stage as I do not wish to detract in any way from the articulate, intelligent, sensible and persuasive way my noble colleagues have put the case for this amendment, on serious—indeed, very serious—security grounds.
If your Lordships do not care about the future security of this country, or the essential exchange of vital security intelligence with other countries and their security services around the world, you will reject the amendment.
If you leave the clause unamended, you may well be closing the door to the exchange of vital intelligence and information, which is likely to spell danger to this country and make impossible the duty facing our security services and police in their task of keeping us free, or as free as they possibly can, from terrorism and serious, violent and organised crime.
I therefore implore all noble Lords to take note of what my noble friends have said and accept this most important amendment. In my opening remarks, I said that this and other legislation brought forward by this Government reflected the disdain and contempt in which the ruling political party holds the police in this country. I cannot, like many thousands of serving police officers, whose morale is at the lowest ebb since the 1950s, refrain from concluding that some clauses are there because someone has said, “Yes, go on. Put that in. That will give them a bloody nose and show who’s running the show”.
Your Lordships may not be surprised that the first example of that disdain—forgetting about the “f” word being used by a senior member of the Government in a disgraceful incident at the gates of Downing Street—was the Police Reform and Social Responsibility Bill, which made provision for the election, at enormous cost, of so-called police and crime commissioners. The noble Lord, Lord Elystan-Morgan, referred to those persons as commissars. It was intended that those individuals would hold the chief constable to account and have the power to dismiss the chief officer and appoint someone of their choice—even someone of his political party—as the chief constable. Shades of the situation in Nazi Germany in the early 1930s, when traditional policing had to give way to political chief officer appointments. We know how that progressed. It could not happen here, of course, could it?
I speak as a Cross-Bench Member of your Lordships’ House, but I admit to being a failed Conservative. The first step on that path to failure was during the time of the YouGov poll at the same time as your Lordships were discussing the Police Reform and Social Responsibility Bill, designed to bring about the appointment of police and crime commissioners, together with a large staff and not inconsiderable salaries. Although no less than 65% of those polled did not want the system and only 15% did, the Government took no notice of that demonstrable public opposition. At the same time as the NHS closed a number of accident and emergency departments on the grounds of cost, the Government somehow earmarked £100 million for the introduction of the PCCs.
The Government remained unmoved although, on the day when the public were given the opportunity to vote for their PCCs, we found that the majority of the electorate decided not to vote—most of those who I know, as a protest, they said. That was a clear indication of the public’s mood which the Government laughingly put down to bad weather keeping those entitled to vote at home. Or was it that the Government did not care what the public thought? Was that yet another example of the Government’s intransigence, demonstrating that they are the ones who make the rules? If they want the rules changed, they change them. After all, they are the governing party and we are mere constables or PCs.
There have certainly been mistakes with the introduction of these ill advised and unbelievably costly, unwanted and unnecessary schemes. Let us not make further mistakes which will not only be costly but may well be a danger to the public—those whose protection should be of paramount importance to any Government. I therefore urge your Lordships to support and accept the amendment tabled by my noble friends.
Lord Paddick (LD)
My Lords, as the other ex-police officer in the House this evening, it would be remiss of me not to add my comments to those of other noble Lords. I fully support the amendment tabled by the noble Lords, Lord Blair of Boughton and Lord Condon. I believe the arguments they have made to be powerful and compelling. I do not think that the noble Lord, Lord Stevens of Kirkwhelpington, spoke for long enough to have that accolade but we obviously agree as well. I also agree with a lot of what the noble Lord, Lord Imbert, said but as a member of a party which is part of the coalition Government, perhaps I should not go as far as he has done.
Unlike my former colleagues, who say that they have no argument in principle with Clause 126 and the appointment of foreign nationals to senior police posts, in that it would be hypocritical as some UK police chiefs have taken posts in foreign forces, never having applied for such a post I do not feel myself to be hypocritical if I go against that principle. My argument is about the culture of policing. As in many professions and businesses, there is a major division between workers and bosses. It is even more marked in the police service than in other professions. That may be because rank and file officers perform shift-work—they go out at night and are on the streets—whereas we senior officers are comfortable in our offices and work more reasonable hours.
Whatever the reason, there is a divide, particularly between Association of Chief Police Officers’ ranks and those of the federation. However, the one thing that binds us together is that we all, without exception, performed the role of a patrol officer—a constable on the beat—at some stage. We could honestly say when we were ACPO officers that we knew and understood what those officers were facing, at least to some extent. If a foreign officer was appointed, I do not know whether they would have that credibility with rank and file officers.
The second issue is the uniqueness of police leadership. Almost uniquely, police officers perform the overwhelming majority of their duties without any direct supervision. Their leaders are almost never directly present when those officers are out on the street. Police officers therefore have to have far more credibility than other leaders in the eyes of their subordinates, if those subordinates are to follow the instructions of their leaders. While it may not be impossible, it would be very difficult for a foreign national who has not served as a patrol officer, or a bobby on the beat, in the UK—a country with a unique tradition of being almost exclusively unarmed and which has a tradition of policing by consent—to have credibility in the eyes of rank and file officers. We therefore need to think very carefully about appointing foreign nationals as police chiefs in this country, notwithstanding what message that sends to the excellent police leaders who we have in this country as it is.
Lord Hope of Craighead (CB)
My Lords, perhaps it might help if I could balance out the contributions from the Cross Benches by speaking as someone who has never been a police officer or had any responsibility for policing in this country. I approach this amendment by looking at it on its own terms as something which is directed to Clause 126, on the assumption that the clause remains part of the Bill. I make no comment on Clause 126 itself, but I see merit in the amendment for one particular reason.
I have no reason to doubt the proposition that the Government care deeply about considerations of national security and intelligence. Approaching this matter from the sidelines, I would be very surprised if considerations of that kind did not cross the mind of those who were considering making these appointments; let us assume that as a given, in favour of the Government. The value of the amendment is that it counters the suspicion that some may have that these considerations are not in the mind of the Government. It also has a disciplinary effect, because the exercise that is being proposed here will, of course, be carried out in advance of any of these appointments being made. It will help to focus the mind and lay on the table the considerations which one would assume the Government will take into account in making these appointments.
If one thinks of the acceptability of the appointment through the entire police force, the fact that these considerations were on the table and so can be assumed to have been taken into account would add considerable weight to the appointment and the respect in which the appointment-holder would be entitled to be held. Purely from that standpoint, as a former judge and not as somebody who has any experience in the detail of the matter, I respectfully see value in the amendment.
Lord Rosser
My Lords, I will resist the temptation to go beyond the amendment that we are principally discussing, Amendment 105. We acknowledge that the Government appear to have a strong wish to bring personnel into the police from overseas, but there is an obvious concern that has been powerfully expressed tonight over the implications for the security responsibilities of the posts mentioned in Amendment 105 and their access to the highest classification of intelligence. The question has been powerfully raised of whether it is appropriate that the positions indicated in Amendment 105 should be held by a non-UK national on national security grounds. The strength of the amendment, as the noble Lord, Lord Hope, has indicated, is that it does not say no, but it requires that written advice be sought from the Intelligence and Security Committee as to whether there are any considerations of national security and intelligence that would need to be examined in relation to the appointment of a non-UK national to the posts mentioned in the amendment. Obviously, there is also the requirement that Section 126 would not come into force until the views of the Intelligence and Security Committee had been obtained and given to the Secretary of State and,
“a copy of those findings has been laid before both Houses of Parliament”.
I always say, “subject to what the Minister has to say, since he might persuade me otherwise”, but it seems to me that, in view of the concerns that have been raised— which seem legitimate—Amendment 105 is eminently reasonable. It is not giving an answer to the question, but it is saying that surely the issue is of sufficient importance that advice should be sought from the Intelligence and Security Committee. We will await the Minister’s response with interest, particularly on whether they have already assessed the security implications of a non-UK national filling one or more of the positions listed in Amendment 105 and have come to the conclusion that there are no national security considerations.
Lord Taylor of Holbeach
My Lords, this has been an interesting debate. One or two things have been said that I would have to refute. I disagree with the view of the noble Lord, Lord Elystan-Morgan, on police and crime commissioners, and they are not really the subject of this amendment or this debate. With the greatest respect, I have to say that I disagree with the noble Lord, Lord Imbert, on the views of this Government about policing. There is no way in which any member of the Government who I know holds the police in disdain, and there is no sense that the Bill is in any way about getting at the police, as the noble Lord implied. I must put that on the record because I owe it to all my colleagues to do just that.
There is a serious issue in these amendments and I am grateful to noble Lords for addressing them and to the noble Lord, Lord Blair, for bringing them to our attention. I am also grateful to the noble and learned Lord, Lord Hope of Craighead, for being a non-policing lay person who wishes to contribute to this debate. I hope that I can reassure the noble Lord, Lord Rosser, as well on this issue.
I understand the concerns that the noble Lord, Lord Blair, has raised, and I am grateful for the experience and knowledge of policing that he and his colleagues have brought to bear on this important issue. I agree that it is essential that those who are appointed as police officers undergo vetting appropriate to the role that they undertake. In the case of posts that have responsibility for counterterrorism policing, such as those that are pointed out in the amendment, it is of course vital that very stringent checks can be carried out.
Of the posts mentioned in the amendment, though, only the post of the Metropolitan Police Commissioner would be affected by the proposals in Clause 126. All the others are not mentioned in this clause or indeed relevant to it. Clause 126, as the noble Lord says, removes the requirement for an applicant to have served as a constable in the UK before being appointed as a chief constable or as the commissioner—where they have certain alternative relevant experience, which is important to emphasise as well. I have to say that there is no requirement under law to have served as a constable in the UK before being appointed as a deputy or assistant commissioner. With regard to the Metropolitan Police Commissioner, it will be for the Home Secretary to decide whether to include further restrictions beyond those set out in primary legislation in advertising for the role when a vacancy arises.
That is the same position as now. As things stand, no policing posts are restricted to British nationals by legislation. I recognise that there will be some posts that will require UK nationals only. However, we do not feel it necessary to start specifying this in legislation. We have not done so up to now; why should we start? The Home Secretary has the ability to impose nationality requirements for the commissioner post if necessary, as indeed she did when the post was last advertised. Similarly, the Home Secretary can also impose this requirement when appointing the deputy commissioner and the director-general of the National Crime Agency. It is for the Commissioner of the Metropolitan Police to make the decision when it comes to assistant commissioners—they are not a Home Office appointment.
The noble Lord, Lord Blair, has explained why he does not believe that this is a sufficient safeguard, and that the Home Secretary and Parliament must be required to consider the advice of the Intelligence and Security Committee. However, it would be more appropriate for the Home Secretary to take advice from whom she thinks relevant when she is in the position to make these appointments, so that it is current and pertinent to the role being recruited at that time. However, I reassure noble Lords that, whatever nationality restrictions are imposed, no appointment would be made by this or any future Home Secretary that would put national security at risk. We would always expect the successful candidate to undergo the appropriate vetting procedures. If an applicant cannot be vetted, they will not be appointed.
I shall inform the House about current vetting requirements. The UK has reciprocal agreements with Governments of some EU and NATO countries whereby we recognise their vetting as equivalent to ours. Decisions will need to be made on a case-by-case basis. There is currently no bar to foreign citizens undergoing developed vetting, nor is there a requirement to have a British parent, but 10 years’ residency is usually required.
While I accept and acknowledge the expertise in the ISC, I do not believe we need to be obliged by law to refer this matter to it. I am satisfied that there are sufficiently robust vetting arrangements in place for these sensitive posts—they are, indeed, sensitive posts. Any change in the law to exclude foreign nationals being appointed to them would be introducing a requirement that has not hitherto applied. With these assurances, I hope the noble Lord will be content not to move his amendment.
Lord Blair of Boughton
The Minister has puzzled me about the idea that the deputy commissioner and the assistant commissioners of the Metropolitan Police are not chief constables. They are chief constables. You have to be a chief constable to be an assistant commissioner or the deputy commissioner. At least, that is my understanding of the matter, and I am getting various nods from my colleagues. Titles in the Metropolitan Police are different, as the Minister knows. To say that the deputy commissioner and the assistant commissioners are not chief constables when they are the most senior chief constables in the land is an oddity. Would the Minister care to reflect on that?
Lord Taylor of Holbeach
I shall certainly reflect on it. I am speaking from my notes. While they acknowledge the deputy commissioner role, they make quite clear that there is no requirement to have served as a constable in the UK before being appointed as a deputy commissioner or assistant commissioner. I say that on the information that I have been supplied. If it proves to be wrong, I will certainly write to the noble Lord and inform the House by placing that letter in the Library.
Lord Blair of Boughton
I am grateful to all noble Lords who have spoken in this debate. I and colleagues will reflect on what the Minister said and what he has and has not agreed. I think it will come as a general surprise to the holders of the deputy commissioner and assistant commissioner posts that they are not chief constables, but we will come to that in due course. I reserve the right to return to the matter on Report and will be grateful for any further information the Minister can provide.
Lord Taylor of Holbeach
“(1D) The College of Policing must recommend to the Secretary of State matters to be designated under this paragraph.
(1E) The Secretary of State may make regulations under this paragraph only if they give effect to a recommendation under sub-paragraph (1D).””
“(3D) The College of Policing must recommend to the Secretary of State matters to be designated under this section.
(3E) The Secretary of State may make regulations under this section only if they give effect to a recommendation under subsection (3D).””
Lord Rosser
Clause 129(4) gives the definition of anti-social behaviour. It is that it,
“causes or is likely to cause harassment, alarm or distress”,
rather than the nuisance or annoyance definition that relates to Clause 1 for the power to grant injunctions. That is the IPNAs. In Clause 94(6) on out-of-court disposals, anti-social behaviour is also defined as harassment, alarm and distress rather than nuisance or annoyance. I am not particularly expecting the Minister to give me an instant answer. If he is unable to do so, which I think may well be the case, I would be very grateful if he could subsequently let me know why there is a distinction and why it refers to the definition as being “harassment, alarm or distress” in Clause 129, which is different from the definition given in Clause 1 but is the same as the definition given in Clause 94(6).
Lord Taylor of Holbeach
My Lords, I will not seek to give an off-the-cuff answer to that question. If the noble Lord is happy for me to write to him I will do so, particularly as I am sure we wish to expedite the business. I hope that we can agree that Clause 129 should stand part of the Bill.
Lord Ahmad of Wimbledon
“Information about guests at hotels believed to be used for child sexual exploitation
(1) A police officer of at least the rank of inspector may issue a notice under this section to the owner, operator or manager of a hotel that the officer reasonably believes has been or will be used for the purposes of—
(a) child sexual exploitation, or(b) conduct that is preparatory to, or otherwise connected with, child sexual exploitation.(2) A notice under this section must be in writing and must—
(a) specify the hotel to which it relates;(b) specify the date on which it comes into effect and the date on which it expires;(c) explain the effect of subsections (4) and (5) and sections (Appeals against notices under section (Information about guests at hotels believed to be used for child sexual exploitation)) and (Offences).(3) The date on which the notice expires must not be more than 6 months after the date on which it comes into effect.
(4) A constable may require a person issued with a notice under this section to provide the constable with information about guests at the hotel.
(5) The only information that a constable may require under subsection (4) is—
(a) guests’ names and addresses;(b) other information about guests that—(i) is specified in regulations made by the Secretary of State, and(ii) can be readily obtained from one or more of the guests themselves.(6) A requirement under subsection (4)—
(a) must be in writing;(b) must specify the period to which the requirement relates;(c) must specify the date or dates on or by which the required information is to be provided.The period specified under paragraph (b) must begin no earlier than the time when the requirement is imposed and must end no later than the expiry of the notice under this section.(7) In this section—
“child sexual exploitation” means conduct that constitutes an offence listed in subsection (8)(a) or (b), or an offence listed in subsection (8)(c) against a person under 18;
“guest” means a person who, for a charge payable by that person or another, has the use of a guest room at the hotel in question;
“hotel” includes any guest house or other establishment of a similar kind at which accommodation is provided for a charge.
(8) The offences are—
(a) an offence under any of the following sections of the Sexual Offences Act 2003—sections 5 to 8 (rape and other offences against children under 13);
sections 9 to 13 (child sex offences);
sections 16 to 19 (abuse of position of trust);
sections 25 and 26 (familial child sex offences);
sections 47 to 50 (abuse of children through prostitution and pornography);
(b) an offence under section 1 of the Protection of Children Act 1978 (indecent photographs of children);(c) an offence under any of the following sections of the Sexual Offences Act 2003—sections 1 to 4 (rape, assault and causing sexual activity without consent);
sections 30 to 41 (persons with a mental disorder impeding choice, inducements etc to persons with a mental disorder, and care workers for persons with a mental disorder);
section 59A (trafficking people for sexual exploitation);
section 61 (administering a substance with intent);
sections 66 and 67 (exposure and voyeurism).”
Lord Ahmad of Wimbledon (Con)
My Lords, child sexual exploitation is an abhorrent crime and we are determined to stamp it out. In the past, all too often these crimes were largely hidden, but now child sexual exploitation is rightly centre stage as an issue that we must tackle. We are strengthening the system of civil orders used to manage the risk of sexual offences through Part 9 of the Bill, which noble Lords have already considered in Committee. The provisions in this group of government amendments provide an additional power to tackle the problem from a different angle. They will make it harder for child sex offenders to be able to use the anonymity of hotels and similar venues to commit offences against young people and children. A number of recent high-profile cases, such as in those in Oxford and Keighley, have shown that offenders have used the cover of hotels and bed-and-breakfast accommodation to commit sexual offences against children. By introducing these new powers, we will help the police to tackle child sexual exploitation where there are reasonable suspicions that offending has taken place or will take place.
Already, police forces are actively tackling this issue, as evidenced by the increasing number of cases that the police are bringing before the courts and the significant sentences being handed down to perpetrators. In addition, on a national level, we have strengthened the response to this issue through the inclusion of child sexual exploitation within our strategy to combat organised crime. The newly established National Crime Agency is strengthening the UK’s capability to combat child abuse online with some 4,000 specialist officers. We have also set up a Home Office-led national group through which agencies are working together to better identify those at risk and create a more victim-focused culture within the police, health and children’s services. Whether exploitation is happening now or has happened in the past, we will continue to ensure that victims are not left to suffer in silence and that those who exploit them are rightly brought to justice.
The Government want to support the police in their efforts to vigorously pursue perpetrators of this despicable crime. Targeted new powers of the kind that we are proposing will provide additional help to law enforcement agencies by allowing the police to obtain information about guests staying at hotels, guest houses and B&Bs where they suspect sexual exploitation could be taking place. If there is a reasonable suspicion that premises are being used for child exploitation, a police officer of at least inspector rank may issue a notice to the owner, operator or manager. That person would then be required to provide the police with information over a specified period of up to six months about guests who check in on and after the date on which the notice takes effect. This could include information such as the name, age, address and relationship of guests, which would be used for vital intelligence and evidence-gathering. Where there is information that a child is potentially at risk, police would use existing powers to protect the child and pursue offenders in the normal investigative process.
It is essential that this new power is taken seriously and can be enforced. That is why it will be an offence for a person served with a notice to fail to comply, and they will be subject to a maximum penalty of a level 4 fine, currently £2,500. However, clearly there should be safeguards. An offence will not have been committed if the person has a reasonable excuse for failing to comply or if reasonable steps were taken to obtain or verify the required information, and an appeal against the notice can be made in a magistrates’ court. The intention of the new power is to create a proportionate and targeted tool that will be used in an intelligence-led way to help prevent abuse, and I commend these amendments to the Committee.
Lord Rosser
My Lords, as we know, hotels do not require a specific licence to operate unless they are licensed to sell alcohol, and they certainly have no specific duties to report suspected child abuse. Clearly we are at one in wanting to eliminate child sexual exploitation as far as is possible, which is the objective of these amendments. However, I will raise one or two questions.
In the information that the Minister sent us, he said that it is not expected that this targeted power will be used more than 10 times a year, and that,
“as such, the impact on business is expected to be minimal”.
I do not ask him to tell me why he thinks that the figure is 10 rather than nine or 11, but it would be helpful if he could give some indication as to roughly where that figure of 10 came from.
Amendment 56YA defines “hotel” as,
“any guest house or other establishment of a similar kind at which accommodation is provided for a charge”.
I imagine that it must be possible to find some accommodation that is provided which is similar to a guest house but with no charge—something might conceivably be run by a charity. I want to confirm—and this is not particularly a criticism—that the wording would mean that that kind of establishment was excluded from the provisions of that clause.
The view of the Delegated Powers and Regulatory Reform Committee is that it considers that regulations specifying additional categories of information should be subject to the affirmative procedure. I understand that the Government do not envisage that. If I am correct in making that assertion, perhaps the Minister could say why. If I am wrong, and it will require the affirmative procedure, I will be very pleased indeed.
On this requirement under the clauses we are discussing, to provide information, for example in relation to addresses of guests at the hotel, is it the Government’s intention—I assume that it is but just want to clarify it—that it will apply only in relation to this particular kind of offence? One can think of situations in which a hotel was used by individuals to perpetrate other forms of quite serious crimes. Child sexual exploitation is obviously very much at the top end, but a hotel could be used to enact or plan other forms of crime. Do the Government intend that this provision will apply over a wider field than child sexual exploitation, which obviously we all accept is a very serious crime?
On the information about guests that might be gleaned, if that information does not result in a charge or a successful prosecution, for how long can it be retained by the police? Can it be retained in perpetuity or will it have to be given up or destroyed after a certain period of time? Since I do not think that that is indicated in the Bill—I am sure that if I am wrong, I will be corrected—for what purposes may the police use any information obtained about guests, and are there any restrictions on possible use of information provided to the police under these clauses?
Lord Ahmad of Wimbledon
My Lords, I will turn to some of the issues—if not all, I will certainly write to the noble Lord in that respect. On the issue of the Delegated Powers Committee’s recommendation that the order-making power in Amendment 56YA should be subject to the affirmative procedure, that report has come today, we are considering it and we will respond to the committee’s report in advance of Report stage.
The noble Lord raised the issue of the application of these particular proposals just for child sexual exploitation. It is their primary aim to target that particular heinous crime. I am sure that all noble Lords would agree that this is something that needs to be tackled head-on.
As for the figure that the noble Lord asked about in the briefing, that was a matter that I raised, too. This figure is indicative; one would hope that it was zero. That is the sentiment that I would express from the Government, but it is an indicative number only.
The noble Lord, Lord Rosser, asked about accommodation provided for a charge. The provision is aimed at hotels and bed-and-breakfasts; it would not cover accommodation provided for free, such as accommodation run by a charity. I trust that that has answered most, if not all, of his questions, but if there is anything pending I shall write to him.
Lord Ahmad of Wimbledon
“Appeals against notices under section (Information about guests at hotels believed to be used for child sexual exploitation)
(1) A person issued with a notice under section (Information about guests at hotels believed to be used for child sexual exploitation) may appeal against it to a magistrates’ court.
(2) An appeal must be made within the period of 21 days beginning with the day on which the person is issued with the notice.
(3) Where there is an appeal against a notice under section (Information about guests at hotels believed to be used for child sexual exploitation), then until the appeal is finally determined or withdrawn—
(a) no requirement may be imposed under subsection (4) of that section in relation to the premises in question;(b) any such requirement already imposed is of no effect.(4) A magistrates’ court hearing an appeal against a notice under section (Information about guests at hotels believed to be used for child sexual exploitation) must—
(a) quash the notice,(b) modify the notice, or(c) dismiss the appeal.”
“Offences
(1) An offence is committed by a person who fails without reasonable excuse to comply with a requirement imposed on the person under (Information about guests at hotels believed to be used for child sexual exploitation)(4).
(2) An offence is committed by a person who, in response to a requirement imposed on the person under section (Information about guests at hotels believed to be used for child sexual exploitation)(4), provides incorrect information which the person—
(a) did not take reasonable steps to verify or to have verified, or(b) knows to be incorrect.(3) A person does not commit an offence under subsection (2)(a) if there were no steps that the person could reasonably have taken to verify the information or to have it verified.
(4) A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 4 on the standard scale.”
The Deputy Chairman of Committees (Baroness Gibson of Market Rasen) (Lab)
To move Amendment 56YD, the noble Lord, Lord Taylor of Holbeach.
Amendment 56YD
Lord Ahmad of Wimbledon
“Power to take further fingerprints or non-intimate samples
(1) In section 61 of the Police and Criminal Evidence Act 1984 (fingerprinting)—
(a) in subsections (5A) and (5B), for the words after “investigation” in paragraph (b) there is substituted “but(i) subsection (3A)(a) or (b) above applies, or(ii) subsection (5C) below applies.”;(b) after subsection (5B) there is inserted—“(5C) This subsection applies where—
(a) the investigation was discontinued but subsequently resumed, and(b) before the resumption of the investigation the fingerprints were destroyed pursuant to section 63D(3) below.”(2) In section 63 of that Act (non-intimate samples)—
(a) at the end of subsection (3ZA)(b) there is inserted “, or(iii) subsection (3AA) below applies.”;(b) in subsection (3A)(b), for “insufficient; or” there is substituted “insufficient, or(iii) subsection (3AA) below applies; or”;(c) after subsection (3A) there is inserted—“(3AA) This subsection applies where the investigation was discontinued but subsequently resumed, and before the resumption of the investigation—
(a) any DNA profile derived from the sample was destroyed pursuant to section 63D(3) below, and(b) the sample itself was destroyed pursuant to section 63R(4), (5) or (12) below.””
Lord Ahmad of Wimbledon
It was always my great desire to be the noble Lord, Lord Taylor of Holbeach. My ultimate aspiration has today been achieved twice over.
These amendments are designed to improve the use of DNA and fingerprints in criminal investigations. I shall begin with Amendment 56YD, which allows the retaking of DNA and fingerprints if an investigation is restarted. At present, the Police and Criminal Evidence Act 1984 allows DNA sampling and fingerprinting of an arrested or charged person only once in an investigation. If the police or the Crown Prosecution Service decide not to proceed against an accused person, that person’s DNA and fingerprints must be deleted, unless they have previously been convicted, or charged with a qualifying offence. If the investigation is later restarted, there is no power to retake the DNA and fingerprints. The CPS has now introduced a new procedure, the victims’ right to review, under which a decision not to proceed may be reviewed and the case restarted. If DNA and fingerprints have already been taken and destroyed, there is currently no power to take them again if the case is restarted. Amendment 56YD provides for such a power.
Amendment 56YE ensures that the retention of a person’s DNA is determined by considering their entire criminal history. If a conviction in that history would allow retention, it is important that a DNA profile can be retained, regardless of whether the arrest in connection with which the profile was obtained was itself followed by a conviction. This is important because, normally, when a person has had a DNA sample taken on a first arrest, DNA is not taken on any later arrests, because that would incur unnecessary costs to obtain the same profile. However, without this amendment, there is a danger that the DNA from the first arrest would be deleted from the database if there was no causal link between the taking of DNA on a first arrest and a conviction obtained following a later arrest. Amendment 56YE makes the position clear, thereby ensuring that a DNA profile can be retained indefinitely whenever someone has a previous conviction or caution for a recordable offence, irrespective of the fact that they were not proceeded against for the offence in respect of which the DNA sample was taken.
Finally, Amendment 97 to Schedule 9 to the Bill is consequential on amendment 56YD and amends Schedule 2A to PACE, which allows the police to require people to attend at a police station for the purposes of having their fingerprints or DNA taken. It duly applies the existing time limits for imposing such a requirement to the new provisions that I have described. Under existing legislation, if a person is arrested or charged then released without having had their DNA or fingerprints taken, the police may take them later, but only within the following six months. The amendments to Schedule 9 apply this principle to the scenario involving retaking, putting a time limit of six months from the restarting of the investigation on the power to retake DNA or fingerprints. These amendments are sensible measures to improve the use of DNA and fingerprints which I commend to the Committee.
Lord Beecham (Lab)
My Lords, I note the Minister’s recidivist tendencies in terms of his aspirations to be the noble Lord, Lord Taylor of Holbeach, and congratulate him on his judgment in that respect.
This is a classic case of legislating in haste and repenting at leisure, because the problems that these amendments seek to address were highlighted by the Opposition when the Government originally legislated. We pointed out that the Government should have taken the greatest possible steps they could in acknowledging the legal requirements set down under European court judgments to maintain the retention of DNA so that it could be used to define and catch criminals who had committed crimes or could potentially commit further crimes. This was argued during the passage of the Protection of Freedoms Act, and the argument was not accepted at the time by the Government. Now, not untypically in an era of rapid U-turns, they have made a U-turn, although it has taken some time. It is clearly right that the Government should act in this way. It is notable that on this occasion they are not following the practice of the Conservative Party in making sure that their records are consigned to history rather than being kept available. That is welcome, although perhaps we may see a U-turn in that respect as well.
So far as this legislation is concerned, there is still an issue around the retention of information. The Minister referred to the fact that samples would have to be taken within six months. I do not understand the rationale for that. DNA samples can be taken and kept for long after the event. I recently read an interesting history book called The Isles in which DNA samples were taken from a cave in Cheddar Gorge from remains going back some thousands of years. Yet with those DNA samples they managed to trace somebody living in the 21st century in that area. These things can last. Crime is not just a short-term matter—I understand that an estimated 20,000 to 23,000 people could have committed crimes within a span of six years—so I do not understand the rationale for the six-month period. While we welcome the progress made so far, perhaps we could have an explanation of why six months is being insisted on rather than a longer period. My honourable friends in another place were suggesting that a period of six years would be appropriate. After all, we are talking here about potentially serious crimes; we would not be bothering with DNA samples if we were not. There is no rationale, in my judgment, for the period the Government have selected.
Lord Ahmad of Wimbledon
My Lords, I thank the noble Lord for his broad support and support in principle for what we are seeking to do here. I also listen with great care whenever he talks about history and literature. Today he combined both. I am forever learning from the noble Lord.
On the specific question of why six months, it is our view that there must be a limit otherwise people who have been arrested and then had proceedings against them dropped for lack of evidence would never actually know whether they were free of the risk of having their DNA and fingerprints taken. Six months has been regarded as the reasonable limit in legislation passed by this Government as well as the previous one. The noble Lord mentioned the Protection of Freedoms Act, namely that the DNA of a person who has not committed any offence should not be retained indefinitely. He used that as a premise for saying perhaps that the Government are U-turning. This is not a U-turn. I always regard these things as progression and I think we have moved in the right way and I am glad that the noble Lord respects that.
Lord Ahmad of Wimbledon
“Power to retain fingerprints or DNA profile in connection with different offence
(1) For section 63P of the Police and Criminal Evidence Act 1984 (section 63D material obtained for one purpose and used for another) there is substituted—
“63P Retention of 63D material in connection with different offence
(1) Subsection (2) applies if—
(a) section 63D material is taken (or, in the case of a DNA profile, derived from a sample taken) from a person in connection with the investigation of an offence, and(b) the person is subsequently arrested for or charged with a different offence, or convicted of or given a penalty notice for a different offence.(2) Sections 63E to 63O and sections 63Q and 63T have effect in relation to the material as if the material were also taken (or, in the case of a DNA profile, derived from a sample taken)—
(a) in connection with the investigation of the offence mentioned in subsection (1)(b),(b) on the date on which the person was arrested for that offence (or charged with it or given a penalty notice for it, if the person was not arrested).”(2) The amendment made by subsection (1) applies even where the event referred to in subsection (1)(b) of the substituted section 63P occurs before the day on which this section comes into force.”
Lord Rosser
“Review of provisions to address stalking
The Home Secretary shall carry out a review of progress and implementation of the provisions used by the police to address stalking.”
Lord Rosser
My Lords, in the discussions on the Protection of Freedoms Bill a cross-party alliance argued that stalking should be made an offence, which led to the Government accepting the point. However, there now appears to be a need to monitor the implementation of the new law and the progress of training provisions for the police. This is why we have tabled this amendment, which asks the Home Secretary to carry out a review of progress and implementation of the provisions used by the police to address stalking.
We have called for national standards on police training for domestic and sexual violence, including stalking. Victims repeatedly say—fairly or unfairly—that police officers do not understand stalking and are not aware of the new laws and, as such, are reluctant to intervene. Police information notices—often referred to, perhaps wrongly, as harassment warnings—are apparently sometimes being handed out rather as a matter of course in stalking cases to victims and the alleged perpetrators alike, which certainly victims regard—again, rightly or wrongly—as a failure properly to investigate the complaints.
As I understand it, the number of arrests in the first six months of stalking being an offence was just over 300. This is in marked contrast to the situation in Scotland. In the 30 months since its law was introduced, it had just over 1,400 detections recorded, and, of those, just under 1,050 had commenced prosecution. Of that figure of just under 1,050, 450 had resulted in convictions and 315 still await prosecution. This suggests that the figures for England and Wales are well below expectations taking into account the massive difference in population with Scotland, which has only approximately one-tenth of the population of England and Wales. Therefore, these figures are surprising and do not appear to reflect the seriousness of stalking.
Case material that has apparently been received by the National Stalking Advocacy Service shows outstanding training needs, particularly understanding the nature of the new laws, the need to consider all stalking behaviour when victims complain and the serious nature of this criminal stalking behaviour. Even though the Government have made stalking an offence, which obviously is major progress, this alone is not enough to make it work. Given some of the evidence that is now coming to light, there appears to be a case that a review is needed on the implementation of the provisions used by the police to address stalking, and that is what Amendment 56YF seeks to achieve.
Baroness Brinton (LD)
My Lords, I was one of those who spoke on a number of occasions during the passage of the then Protection of Freedoms Bill on the issue of stalking. Like others, I welcome the implementation of that Act.
I endorse the points made by the noble Lord, Lord Rosser, but wish to add two or three more. In addition to the worry about the numbers of arrests and charges, the geographical data are also very patchy. There have been 133 arrests in the Met area but none in Gloucestershire. Lancashire has had 36 arrests, there have been 20 in the Thames Valley, 14 in Suffolk, 12 in Bedfordshire but just two in Merseyside. These disparities are also reflected in the actual charge rates, should the issue progress to that. What these data seem to be saying is that some forces have trained and prepared their officers for the new offence but others have not. When the stalking clauses were discussed during the passage of the then Protection of Freedoms Bill, there was cross-party agreement that there would not be real change in stalking offences until the culture not just in the police but in the criminal justice system changed and they understood the new law and how to implement it. It is good news that the College of Policing will cover this training in the future, but can the Minister say where and how much training has been undertaken in the past 18 months since the legislation was concluded, so that those areas not implementing the new law are prodded into action?
Lord Taylor of Holbeach
My Lords, this proposed new clause provides an opportunity for me to update noble Lords on the work that has been done since the commencement of the new offences in the Protection of Freedoms Act 2012 on 25 November 2012 to tackle stalking.
We agreed that there was a gap in the law and, on that basis, introduced two new offences of stalking and stalking where there is a fear of violence, serious alarm or distress. These sit alongside the existing offences of harassment and putting people in fear of violence in the Protection from Harassment Act 1997. The stalking offences recognise that the fixated and obsessive nature of stalking differs from harassment.
Crown Prosecution Service figures show that in 2012-13 prosecutions were commenced for more than 8,000 harassment offences, and 91 prosecutions were in relation to the new stalking offences. One has to understand that these figures represent the number of prosecutions initiated within a relatively few months of these offences being introduced. I think that all noble Lords will agree that it takes time for prosecutions to progress through the criminal justice system. We will certainly be monitoring official data and we expect to see an increase in the number of prosecutions and convictions. Police and other professionals need to ensure that they are equipped to make the distinction between harassment and stalking in these complex cases. Official data from the Ministry of Justice on convictions and sentencing will be available in May 2014.
I reassure both my noble friend Lady Brinton and the noble Lord, Lord Rosser, that there is obviously a difference in the situation in which Scotland finds itself compared with England and Wales, in that the legislation in Scotland has had time to bed down longer than it has here. The overall position in Scotland is positive, which suggests that the legislation is useful and we can learn from its experience.
Legislation, of course, is not sufficient on its own. We acknowledge that there is still more to do and I am pleased to have the opportunity to outline the steps that we are taking to ensure that the legislation is used to maximum effect. We need to ensure that police and prosecutors have the training necessary to tackle this type of crime. All newly qualified police officers, uniformed officers and investigators and public protection officers are expected to complete the training developed by the College of Policing as part of their continuous professional development. Since October 2012, the stalking and harassment training package has been completed 44,844 times, which is a rather nice number for anyone who is interested in beautiful numbers.
In addition, the Crown Prosecution Service developed an e-learning module to further support prosecutors in prosecuting cyberstalking, non-cyber stalking and harassment. This new e-learning module was launched in November 2012 to coincide with the commencement of the new stalking offences and has been mandatory for all prosecutors since June. More than 1,000 Crown Prosecution Service lawyers have completed the training since it became mandatory.
The national policing lead for stalking and harassment and the Director of Public Prosecutions wrote jointly to all chief constables and chief Crown prosecutors as recently as last month, identifying areas where the police and the Crown Prosecution Service will work together to improve the response to stalking. They intend to address these issues in a joint national protocol between the police and the Crown Prosecution Service, which is expected to be published next spring.
My noble friend Lady Brinton asked why certain police forces have trained a low number of officers on stalking offences. There is differential between some police forces and others. Chief constables have responsibility for ensuring their officers are effectively trained. Priorities for forces are informed by the plans of their police and crime commissioner. That is why the Home Office is engaging with police and crime commissioners to raise their awareness of violence against women and girls issues, including stalking. The noble Baroness also asked about sentencing guidelines. The Sentencing Council plans to start work on the new public order guideline in 2014 and consideration will be given to including guidance on the new stalking offences as part of this work. I am grateful to my noble friend for mentioning that issue.
I share the desire of the noble Lord, Lord Rosser, and my noble friend to ensure the new legislation is effective. We will be happy to update the House on the progress of our work in this area in due course, and the Government of course expect to be held to account through the usual parliamentary channels. I am not inviting Parliamentary Questions but I am sure that they will follow if I do not keep the House properly informed. However, I am not convinced that these provisions should be singled out in a particular way by imposing a duty to review the progress and implementation of the provisions used by the police. As noble Lords will know, all legislation is reviewed on a regular basis in any event. On the basis of my response to this debate, I hope that the noble Lord will withdraw his amendment.
Baroness Brinton
I thank the Minister for that comprehensive answer on training, but one area that was not covered was the judiciary and magistrates. Perhaps the Minister could write to me with that information at a later date.
Lord Rosser
I thank the noble Baroness, Lady Brinton, for her contribution and for the information that she gave. Of course, she drew attention to the significant geographical discrepancies, the question of whether it was harassment or stalking that was being pursued and whether it was the right charge in each case. That is a significant point.
I understand why the Minister asks, “Why pull out this particular offence and treat it differently as far as a review is concerned?”. But when discussions were taking place in 2012, there was a strength of feeling about this which led the Government to make the decision that they did. It is understandable that, having partially achieved what was wanted—namely, it is in legislation—the next part is to see whether anything is being done with that legislation.
We will want to reflect on what the Minister said before deciding whether to pursue this at a later stage of our discussions on the Bill. I beg leave to withdraw the amendment.