Policing and Crime Bill
Wednesday 26th October 2016
(8 years, 1 month ago)
Lords ChamberRead Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 55-II(b) Amendments for Committee, supplementary to the second marshalled list (PDF, 62KB) - (26 Oct 2016)
Lord Rosser
“Statutory duty on flooding
The Secretary of State shall make provision for the fire and rescue services in England to lead and co-ordinate the emergency service response to—(a) rescue people trapped, or likely to become trapped, by water; and(b) protect people from serious harm, in the event of serious flooding.”
Lord Rosser (Lab)
My Lords, the amendment requires the Secretary of State to make a statutory provision for the fire and rescue services in England to lead and co-ordinate the emergency service response to serious flooding.
Part 2 of the Fire and Rescue Services Act 2004 sets out the statutory core functions of fire and rescue authorities: fire safety, firefighting, and rescuing people and protecting them from harm in the event of road traffic accidents. The 2004 Act also gives the Secretary of State the power to give fire and rescue authorities functions relating to other emergencies, including outside the fire and rescue authority’s area. This is an order-making power and does not require primary legislation.
There is thus no statutory duty on the fire and rescue services for emergencies arising from flooding, yet flooding is on the increase. Government figures show that in 2007 there were 14,000 flooding calls; in 2011-12 there were 16,000; and in 2013-14 there were 18,000. I also sense that the extent of flooding is becoming more serious. The Greater Manchester Fire and Rescue Service said that on Boxing Day last year it deployed two-thirds of its available resources on flood response. The 2008 Pitt review into the 2007 floods said that a statutory duty would be beneficial and recommended that the Government should urgently put in place a fully funded national capability for flood rescue, with fire and rescue authorities playing a leading role underpinned as necessary by a statutory duty.
The case for a statutory duty on the fire and rescue services is now stronger than it was in 2008, with more and more flood calls but fewer staff, less equipment and fewer fire stations. In parts of the United Kingdom there is already a statutory duty on flooding, namely in Scotland since April 2013 and Northern Ireland since January 2012. A statutory duty would assist in adding to the resilience of fire and rescue services when faced with flooding, assist with strategic planning between fire and rescue services and local resilience forums, and underscore the need to resource fire and rescue services specifically for flooding.
The Government’s approach to date appears to be that there is no need for a statutory duty because the fire and rescue services will turn up as necessary anyway even though it is not a statutory core function. On the basis of that argument one might as well remove all the existing statutory core functions of the fire and rescue services on the basis that they will turn up anyway. The reality is that additions are made to statutory functions to reflect changing circumstances.
The fire service has been rescuing people from road traffic crashes for decades, but it was felt that a statutory duty was needed and the Fire and Rescue Services Act 2004 addressed that. The fire service had been providing fire protection for centuries, but a statutory duty was introduced in 1947. Now is surely the time to introduce a statutory duty on flooding to reflect and recognise the vastly increased role of the fire and rescue services in this area of emergency provision. The Government talk about the need to reform our emergency services and bring them up to date. Perhaps the Government need to do the same for the statutory functions of the fire and rescue services. I beg to move.
Lord Paddick (LD)
My Lords, while I agree with the noble Lord, Lord Rosser, on a statutory core function or a statutory duty on flooding for the fire and rescue service, we are a little concerned about the wording of his amendment which reads:
“The Secretary of State shall make provision for the fire and rescue services in England to lead and co-ordinate the emergency service response”.
It is accepted practice among all the emergency services that the police co-ordinate during the emergency phase of any emergency, whether flooding or anything else, partly because there is a duty on the police to investigate. For example, one can imagine a scenario where flooding is caused by a criminal act. It is generally accepted practice and has been for many years that the police service should lead and co-ordinate in every emergency situation. That is slightly different from what the noble Lord, Lord Rosser, is saying in terms of the fire and rescue services having a statutory core function or duty but we do not believe that that should be to lead and co-ordinate in the case of flooding.
The Earl of Erroll (CB)
My Lords, I know nothing about this but a question suddenly occurred to me. If this is a statutory duty that these services are undertaking, will this help them secure funding to do it properly?
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, like the noble Lord, Lord Rosser, I recognise the sterling work and professionalism of the fire and rescue authorities in providing a brilliant service to the various communities during the significant number of flooding incidents, especially in December and January. The noble Lord talked about the Greater Manchester FRA, to which I pay full tribute. When I visited some of the affected areas, such as Rochdale, Salford and Bury over the new-year period, there was clearly effort from not just the community and police but the fire and rescue service. It provided fantastic input into what was a very successful operation in clearing up various areas.
It is clearly important that a timely and co-ordinated response is provided at these critical incidents. A number of agencies are involved generally in rescuing people from floods, particularly in coastal areas, including the Royal National Lifeboat Institution and the Maritime and Coastguard Agency, as well as fire and rescue authorities and the local charitable organisations that play a vital part in many communities. However, direction rests with local resilience forums for local responders to work out the arrangements that work best in their area. Often, this will be the fire and rescue authority but there may be many valid reasons—as the noble Lord, Lord Paddick, outlined—why they might choose a different responder in different circumstances and if that works locally. We do not want to reduce this flexibility with a one-size-fits-all approach as there may be good reasons why, in some areas and on some occasions, it makes more sense for a different responder to take the lead. The fact that two noble Lords have slightly different views on how that might be is proof of that.
I will give an example. During and in the direct aftermath of serious flooding, it has been vital for other agencies including voluntary groups to provide services to protect people from serious harm and to distribute clean water to those affected. Depending on the extent of the incident, it may be necessary for the Royal Air Force to take a major role, as with the flooding in 2007 when it deployed Sea King helicopters from as far afield as Cornwall, Anglesey and Yorkshire for the rescue of 120 people. There are advantages to a permissive, multi-agency regime where responders have broad powers and local discretion rather than a prescriptive duty for flooding or indeed any other type of critical incident we can identify. There is no question that fire and rescue authorities have the power they need to respond to floods. They have responded to all major flooding events and usually provide the most resources.
I welcome the scrutiny that this amendment provided of the arrangements for the emergency services’ response to flooding. To answer the brief question from the noble Earl, Lord Erroll, in terms of something being on a statutory footing, yes, it would necessitate a funding stream. However, for the reasons I have given and from the experiences I have had, I believe that the existing regime with broad, permissive powers gives both fire and rescue authorities and local resilience forums the flexibility they all need. On that note, I ask the noble Lord to withdraw his amendment.
Lord Rosser
I thank noble Lords who contributed to this short debate, and the Minister for her response. I think she said that the fire and rescue services did respond to all major flooding events, which is certainly my understanding of the situation.
It seems a little odd that even if there may be objections to the precise wording of our amendment, there is no willingness to write in a statutory duty and function in respect of flooding for our fire and rescue services. We know that they play a key role. If I understood the Minister correctly she indicated that, if this was on a statutory footing, the fire and rescue services would of course have to be provided with the resources to carry out that activity. Bearing in mind the issues that fire and rescue services face over resources, one has a suspicion that one reason for the reluctance of government to go down this road may be that it would require that commitment of resources, even though the Government have acknowledged that the fire and rescue services do respond to all major flooding events. Obviously, I am disappointed with the Government’s reply but at this stage I beg leave to withdraw the amendment.
Baroness Chisholm of Owlpen (Con)
My Lords, as the way in which policing is delivered evolves, it is important that the powers and remit of Her Majesty’s Inspectorate of Constabulary also evolve to ensure that it remains able to inspect and report on the totality of policing.
As forces rightly place an increasing emphasis on collaboration between emergency services, certain policing functions, such as answering 999 calls, may be delivered by employees of other emergency services without any formal contractual arrangements in place. HMIC must be able to require access to information and premises from these other services when they are related to the delivery of policing functions. That is what these amendments will achieve.
Amendments 165 and 166 extend the definition of a police force for the purposes of an inspection to include non-policing bodies delivering policing functions, even where there is no formal contract in place. In keeping with the scheme provided for in the Bill, such other persons delivering policing services would not be able to appeal against an information notice served on them by HMIC. Amendments 123 and 164 give HMIC and the new inspectors of fire and rescue authorities access to premises in which other services are delivered alongside those that they are inspecting; for example, HMIC would be able to access premises shared by a police force and a fire and rescue service.
I trust the Committee will agree that these are sensible refinements of the inspection provisions in the Bill. I beg to move.
Lord Paddick
Lord Paddick
My Lords, if I say this at the beginning of the afternoon, I hope I will not have to repeat it, but I declare an interest as having been a member of the police service for 30 years. In moving Amendment 124, I will also speak to the other amendment in this group, Amendment 127.
Clause 12 allows a police and crime commissioner—or the Mayor’s Office for Policing And Crime in relation to the Metropolitan Police district, or the Common Council in relation to the City of London police area—to choose to take on direct responsibility for receiving and recording complaints against the police and keeping the complainant informed of progress.
The problem here is that this may further confuse the public about who they should complain to. People are already unsure whether they should complain to a local police station, to the IPCC or to a third party. This change will inevitably mean that in some parts of the country, the complaint needs to be made to the police and crime commissioner—the local policing authority, to use a generic term—who will then deal with the complaint and keep the complainant informed. In other cases, it will be the police service itself, depending on whether the local policing authority takes up the offer provided by the legislation to take on the handling of complaints.
The idea of giving local policing authorities responsibility for complaints against the police, as opposed to the chief officer, is a good one. It will introduce a further element of independence into the police complaints system, but allowing local policing authorities simply the option—and indeed allowing local policing authorities to be persuaded by their chief constable not to take responsibility away from her or him—appears to me to be a fudge. Indeed, the more a chief constable tries to persuade his or her PCC not to take away the responsibility, the more the PCC should resist such pressure, in my opinion. This amendment would require the local policing authority to take over these statutory responsibilities, to ensure independence and clarity for the public.
I turn to Amendment 127. Clause 22 inserts into Section 23 of the Police Reform Act 2002, titled “Regulations”, a new paragraph which gives local policing authorities the power,
“to delegate the exercise or performance of powers and duties conferred or imposed on them”,
in relation to the handling of complaints against police. In a subsequent subsection, which inserts new paragraphs into the Police Reform and Social Responsibility Act 2011, the expression used is to “arrange” for another person,
“to exercise a function that the police and crime commissioner has”.
Although the Explanatory Notes give reassurance that liability remains at the top, Amendment 127 is intended to probe why there is a difference in the wording between the two different subsections and to ensure that the delegation of powers and duties does not include delegation of responsibility. I beg to move Amendment 124.
Lord Bach (Lab)
My Lords, I declare my interest as a police and crime commissioner, for Leicester, Leicestershire and Rutland. I will say a few words about this very interesting amendment, moved by the noble Lord, Lord Paddick, neither to praise it nor to condemn it, but just to tell the Committee something that it is probably aware of anyway. I suspect I speak for other police and crime commissioners as well when I say that as we speak here, we are considering which way to go, given the possibilities that the Bill opens up for us in terms of complaints. It is very interesting that the noble Lord, Lord Paddick, suggests that we should not have that option but should be compelled, as it were, to take all complaints at a low level and consider them. I am not so sure he is right—I do not know. I think there may in the end be a tendency among a number of police and crime commissioners, once the Bill is an Act and this legislation is law, to not take full responsibility for all complaints. I am not quite sure what the Government would like in this case: it may be that they really do not have a preference, and it would be interesting to hear from the Minister whether they do or not.
I have to tell the noble Lord that the chief constable in my patch has done absolutely nothing up until now to try and persuade me not to take the full gamut, but it may be different elsewhere. It is an interesting debate and I look forward very much to hearing what the Minister has to say. I suspect, if the Bill remains as it does up until it becomes an Act, then police and crime commissioners around the country will be doing different things.
Baroness Williams of Trafford
My Lords, I thank the noble Lord, Lord Paddick, and Parliament’s only living breathing PCC, the noble Lord, Lord Bach, for an insight into their views and the opportunity for your Lordships’ Committee to debate the provisions in the Bill that seek to give more responsibilities for handling complaints to local policing bodies.
The Government are committed to reforming the police complaints system so that complaints made against the police are responded to in a way that restores trust, builds public confidence and allows lessons to be learned. The reforms also increase the independence and accountability of the complaints system by enhancing the role of police and crime commissioners and their equivalents in London. The Bill seeks to strengthen local accountability by giving PCCs explicit responsibility for the performance of the complaints system locally and the responsibility for those appeals currently heard internally by forces.
As the noble Lord, Lord Bach, has tried to tease out of the Government, Clause 12 gives PCCs the ability to choose to take on the additional complaints functions of handling low-level customer services issues, the initial recording of complaints and communicating with the complainant throughout the process. Amendment 124 to Clause 12 would remove this ability to choose, instead giving PCCs the mandatory responsibility for all these complaints functions. However, the Government’s intention is to ensure that PCCs can choose the model that would work best for them in their local area. As the noble Lord says, this will look different across the country in future as that local choice is made.
PCCs are very well placed to listen to the concerns of their constituents. The reforms will provide PCCs and forces with the flexibility to deliver a complaints service that responds to the needs of their local area rather than trying to operate within some sort of rigid system that does not reflect operational or community differences. For example, a PCC might wish to give his or her force the ability to deliver a more customer- focused complaints handling system before making a judgment on taking on additional responsibilities. However, the Government have acknowledged the concerns raised with regard to different models operating across the country. This is why the Bill enables PCCs to choose to take on only specific duties within a reformed and streamlined framework. Responsibility for the formal handling of complaints will remain with forces or, in the more serious and sensitive cases, with the IPCC.
Lord Bach
I am very grateful to the Minister for giving way. I should have mentioned this and asked her the question in my earlier remarks. A lot of police and crime commissioners want to know, if they decide to extend their powers—I know they will be extended to some extent anyway, but if they are fully extended—whether resources will follow. That is quite an important issue for them, and I wonder whether the Minister can help us.
Baroness Williams of Trafford
My Lords, I will correct this if I am wrong. While I am not guessing, I am assuming that, particularly where you have the model with a mayoral PCC as well, the mayoral precept will enable some of those mayoral functions. On the additional resources, I would like to write to the noble Lord before Report as I would not want to say something to the Committee now that simply was not true.
Amendment 127 to Clause 22 relates to the ability of PCCs to delegate their complaints-related function. The amendment seeks to clarify the difference in language in the subsections of the clause, and I am happy to do that.
The reason for the difference in language between the subsections is that it aims to replicate the language already used in the corresponding Acts. Although subsection (1) uses different language to that in subsections (2) to (4), the policy intention and result is the same. Local policing authorities should and will be able to delegate their complaints-related functions. Regardless of whether any complaints-related functions have been delegated, the local policing body will retain ultimate responsibility for the complaints performance in its area. This follows the same model as chief constables delegating their complaints responsibilities to more junior ranks, where the chief constable is still ultimately responsible for the outcome.
I hope that those comments have reassured noble Lords and that the noble Lord will feel happy to withdraw his amendment.
Lord Paddick
I am grateful to the Minister for that explanation on Amendment 127, which is a probing amendment. I am not as enthusiastic about her response to Amendment 124, and I am grateful that we have the noble Lord, Lord Bach, here as a living, breathing police and crime commissioner who can bring his experience to this. I have to say that, bringing my experience as a police officer, I believe that there would be great benefit if there was one system that members of the public knew and could rely on. For example, it would be of great benefit to the public if the decision on whether complaints were investigated was taken out of the hands of the police.
The Minister said that the purpose of the new provision was to restore trust. If the purpose is to restore trust and a PCC decides not to take up the offer, what are the constituents in a PCC’s area to think about that? However, at this stage, I beg leave to withdraw the amendment.
Lord Paddick
Lord Paddick
My Lords, I fear it will be like this for the rest of the afternoon. Amendment 124A is in my name and that of my noble friend Lady Hamwee, and I shall speak to the other amendment in the group, Amendment 124B.
Clause 14 amends Part 2 of the Police Reform Act 2002 in relation to keeping complainants—people who have complained about the police—informed of the progress of the investigation of their complaint. Subsection (3) substitutes the matters contained within it for those matters that subsection (3) of the 2002 Act required the complainant to be kept informed about. Basically, subsection (3) sets out what the complainant needs to be kept abreast of. One of the matters in the 2002 Act was to keep the complainant informed of,
“any provisional findings of the person carrying out the investigation”.
This requirement is no longer listed in the new subsection (3), and the amendment is to probe why it is no longer a requirement. Amendment 124B relates to the substitution of subsection (9) in Section 21 of the 2002 Act made by Clause 14(7), which again omits “any provisional findings” from the requirements in the 2002 Act. I beg to move.
Lord Harris of Haringey (Lab)
My Lords, I understand absolutely the objective of the amendment moved by the noble Lord, Lord Paddick, and I have a lot of sympathy with what he is trying to get at. However, perhaps there is also need to look at the extent to which the public who have been victims of crime are also kept informed of the progress of investigations into those crimes. In exactly the same principles that the noble Lord, Lord Paddick, has outlined in terms of complaints against police officers, ought they perhaps also be applied to people who have been victims of crime?
Lord Blair of Boughton (CB)
I am slightly concerned about the phrase “provisional findings”, because it does not define when that is in an investigation. I should declare an interest that I was head of the complaints investigation branch of the Metropolitan Police Service, the subtitle for whom was the “Prince of Darkness”. One knew the provisional findings, but one had that word “provisional” in front. It slightly worries me that we are pushing a process forward where the complainant is given information that new information then changes. It feels an odd thing to be doing. I would like to know why it has been withdrawn in this Bill, as it may have been withdrawn on quite sensible grounds.
Baroness Chisholm of Owlpen
My Lords, the current process for keeping complainants and other interested persons updated on the handling of their complaint is overly complicated, with Sections 20 and 21 of the Police Reform Act 2002 heavily prescriptive on what exactly a force, or as the case may be the local policing body or IPCC, must do and when. This often results in a box-ticking process and perverse outcomes rather than any genuine consideration of what is best for the complainant.
The Bill simplifies this process. Clause 14 amends Sections 20 and 21 of the 2002 Act to create a broad statutory duty on forces to ensure that they keep relevant parties updated on the progress of the handling of the complaint, the outcome of the complaint, and any right of review. This allows for many of the various notification duties on appropriate authorities currently scattered throughout Schedule 3 to the 2002 Act to be consolidated into one place, and for Sections 20 and 21 of that Act to be extended beyond just complaints where there was an investigation.
This broad requirement is in line with the wider changes to the complaints system where the various routes for resolving a complaint—for example, disapplication, discontinuance and local resolution—have been replaced with a general duty to consider the reasonable and proportionate response to a complaint. Greater discretion for forces in deciding how to keep the relevant parties updated on progress reflects the wider intention to trigger a culture change in forces in the handling of complaints. We want a system that encourages proper consideration to be given to the needs of the complainant, rather than officers simply following a very set procedure regardless of the nuances of the case.
I want to reassure the noble Lord that the Government fully expect that where there has been an investigation into a complaint, updating complainants on the progress of the handling of the complaint will include forces informing them of any provisional findings of that investigation. In keeping with the overall intention to simplify the complaints system and to empower forces in how they deal with complaints, this is not something we consider is necessary to prescribe in primary legislation. Instead, it is for the IPCC to consider whether what is meant by updating on the progress of the complaint is better explored in IPCC statutory guidance. Guidance may be able to better reflect best practice and the principle that all cases need to be treated slightly differently.
The noble Lord, Lord Harris, asked about keeping victims of crime informed on progress. He makes a valid point about victims of crime, but this is not a matter for these clauses. We have a later amendment about the rights of victims of crime.
Lord Paddick
My Lords, I am very grateful to noble Lords for their contribution to this short debate. I agree with the noble Lord, Lord Blair of Boughton. It could be that giving “provisional findings”, which are not the ultimate findings, could create a false sense of expectation in the complainant and so forth. However, the question was around not whether that should be there but the reason for it being there. As the noble Lord, Lord Blair, said, there may be a sensible reason for taking it out in the new legislation, but I failed to hear a sensible reason for why it was formerly in primary legislation but will no longer be. Perhaps between now and Report we may be able to unearth that reason. I beg leave to withdraw the amendment.
Lord Paddick
“(aa) the complainant (who must be questioned as to whether he wishes the complaint to be recorded) does not indicate a wish that it not be recorded, or”
Lord Paddick
My Lords, Amendment 125 is tabled in my name and that of my noble friend Lady Hamwee. I shall speak also to Amendment 126. In Schedule 5, Part 1 of Schedule 3 to the Police Reform Act 2000 is amended after sub–paragraph (6) by inserting a new sub-paragraph (6A) in relation to when a complaint against police must be recorded. It states that a complaint must be recorded if,
“at any time the complainant indicates a wish for the complaint to be recorded”.
Our amendment adds a requirement that the complainant must be asked whether he wishes the complaint to be recorded and states that unless he positively indicates that he does not wish the complaint to be recorded, it must be recorded.
From a wealth of personal experience in this area, I know that it is very easy for a complainant to be misled, albeit unintentionally, about whether his complaint will be formally recorded or even to be dissuaded from having a legitimate complaint recorded. The current wording gives the police or the local policing body, if it takes over responsibility, the ability not to record a complaint unless the complainant specifically asks that it be recorded. If the police inspector at the front counter tells the complainant not to worry but to leave it to him as he will have a word with the officer concerned and there is no specific request that the complaint be recorded, it could result in a complaint not being recorded when the complainant believes that it has been. This amendment is designed to reduce the chance of that happening.
Amendment 126 relates to a different issue: the conduct of chief officers of police. Part 3 of Schedule 5 is intended to require the referral of all complaints and matters concerning the conduct of chief officers to the Independent Police Complaints Commission by inserting new paragraphs into Part 3 of Schedule 3 to the Police Reform Act 2002. They provide new powers to enable the Secretary of State to specify in regulations that the IPCC must independently investigate all complaints, recordable conduct matters, and deaths and serious injury matters which relate to the conduct of a chief officer or the Deputy Commissioner of the Metropolitan Police.
Assistant commissioners of the Metropolitan Police wear the same badge of rank as, and are considered to be at least the equivalent of, chief constables or chief officers. In fact, they are paid at the highest rate of chief officer, with the exception of the commissioner and deputy commissioner of the Met, a salary equivalent to that of the chief constables of the Police Service of Northern Ireland, Police Scotland, the West Midlands Police and Greater Manchester Police. The assistant commissioner of the City of London Police wears the insignia of, and is considered equivalent to, a deputy chief officer and is outside the scope of this provision and the amendment. Will the Minister explain why assistant commissioners of the Metropolitan Police are not included with the deputy commissioner of the Metropolitan Police as officers complaints about whom must be referred to the IPCC? Our amendments would add assistant commissioners of the Metropolitan Police to the list of compulsory referrals. I beg to move.
Baroness Williams of Trafford
My Lords, I am grateful to the noble Lord, Lord Paddick, for explaining the purpose of the two amendments. The handling of complaints about the police must be customer-focused, simple to understand and transparent throughout. It is widely accepted that the current system is confusing, complicated and, in many cases, unclear. Through the reforms made in the Bill, we are ensuring that cases are dealt with quickly and effectively, for the benefit not just of the public but of officers who have done nothing wrong. Many forces already currently operate customer service teams through which all complaints about the force are filtered and whereby they try to resolve quality-of-service issues as soon as possible. The reforms in the Bill explicitly provide for that sort of model and try to make it as bureaucracy free and straightforward as appropriate.
The evidence is that this approach works. In Derbyshire in 2014-15, for example, 47% of issues raised about the force were handled outside of the formal complaints system. In Northumbria, where the triage team sits in the office of the police and crime commissioner, 36% of issues raised about the force in the first six months of 2014 were handled in this manner, with 92% of complainants happy with how their issue was handled—and this is increasing. The Government want to encourage forces and local policing bodies such as PCCs to adopt this more customer-focused approach and to resolve as many complaints as possible quickly, simply and to the complainant’s satisfaction through this route. Amendment 125 would require complainants explicitly to confirm that they were content for the force or PCC to seek a customer service solution to their issue outside of the formal complaints system. I put it to the noble Lord that this approach risks limiting what forces can achieve through informal resolution.
The Government believe that this confirmation process would lead to fewer issues being dealt with in this way and, contrary to the policy intent, increase the number dealt with in the formal system. We think it right that, unless the complainant has offered an alternative view or the complaint falls into one of the categories outlined in the legislation for why this form of resolution is inappropriate—I shall discuss the safeguards shortly—the force or PCC should first have the opportunity to draw on their experience to seek to resolve the matter through its own customer service processes. I reassure the noble Lord that the Bill includes extensive provisions to ensure the complainant is in control in this process and that forces can resolve issues outside of the complaints system only when it is appropriate to do so.
There is a clear expectation on PCCs, with their new explicit responsibility for oversight of the complaints system locally, as provided for in Clause 21, to ensure clear communication is provided to complainants about their rights when they make a complaint and how the process will work. This includes explaining that, if at any point a complainant wants his or her complaint to be recorded, it will be recorded. If the force pursues a customer service solution that falls short of the complainant’s view on what constitutes a satisfactory resolution, they can request that the complaint be recorded and handled formally. There is a statutory duty at the outset of a complaint to contact the complainant to understand how the complaint might be best resolved. Statutory guidance will also make clear that, 10 days after receipt of a complaint, it should be formally recorded, even if a customer service approach may have been proportionate. This is to ensure that this form of resolution is limited to only those issues that can be resolved quickly. Beyond that, if there is any indication that the complaint might result in disciplinary or criminal proceedings, or might meet the criteria for mandatory referral to the IPCC, it must be recorded.
Finally, there will also be a requirement on forces, to be detailed in regulations or secondary legislation, to keep some information on the issues they resolve outside of the formal complaints system—the name of the complainant, the issue, and how it was resolved. This will allow PCCs locally to scrutinise those data and HM Inspectorate of Constabulary to inspect the robustness of the decision-making of forces in deciding what is suitable for an informal resolution. Given these safeguards, we are satisfied that there is no need for an explicit requirement that the complainant must agree at the outset to an issue being resolved informally. Ultimately, the priority for most complainants is that their complaint is dealt with to their satisfaction and as quickly as possible.
I turn to Amendment 126. The complaints and discipline system is designed on the premise that, unless matters are of exceptional seriousness and sensitivity and are therefore referred to the IPCC, they should be dealt with—in accordance with the legislation—within the force’s chain of command. The exception is where there is no ultimate senior officer, such as would arise where a complaint is made against a chief constable. In these cases, most complaints are investigated by the IPCC but some may end up being investigated by chief constables of other forces. In his independent review of the police disciplinary system in England and Wales, Chip Chapman recommended that all such investigations should be undertaken by an independent body. The Government agree with this recommendation and that is why the Bill introduces a new regulation-making power that will require complaints regarding the conduct of chief officers to be referred to the IPCC to determine whether it should conduct an independent investigation or direct an investigation. However, although the rank of Assistant Commissioner of the Metropolitan Police Service is one of the highest ranks in England and Wales, there is no need to include it in the proposed measure because it can be reasonably expected that the commissioner or deputy commissioner will oversee any investigation. I hope that this clarifies the matter and that, on the basis of my explanation, the noble Lord will feel free to withdraw his amendment.
Lord Paddick
My Lords, I am grateful to the Minister. As far as Amendment 125 is concerned, I have no issue with a complainant being offered the option of informal resolution or a “customer service solution”—I never heard of that when I was in the police service; it shows how things have moved on—or a formal complaint. The problem we keep encountering in this House is the Government saying, “Well, it’s going to be be in statutory guidance and of course, in practice, if it’s a serious complaint or something that should be recorded, it will be recorded”. Unfortunately, the real world is not quite as ideal as the Minister makes out.
As far as Amendment 126 is concerned, I was with the noble Baroness until she said that matters needed to be referred to the IPCC where there was no ultimate senior officer. Quite clearly, in the case of the Deputy Commissioner of the Met, which is a specific rank for which any complaints have to be referred to the IPCC, there clearly is an ultimate senior officer: the Commissioner of the Met. Unfortunately, the explanation given by the noble Baroness does not help me to understand why the Deputy Commissioner of the Met is specifically mentioned.
Baroness Williams of Trafford
Perhaps I can explain a bit further. While new paragraph 5(1)(a) of Schedule 3 to the Police Reform Act 2002, inserted by Schedule 5 to the Bill, does cover the Deputy Commissioner of the Metropolitan Police Service, this is because, in the Police (Conduct) Regulations 2012, the deputy commissioner is treated in the same way as the commissioner. The Secretary of State is responsible for appointing the investigator of any conduct matter relating to both the commissioner and deputy commissioner. There is no mechanism to allow investigations into the deputy commissioner to be conducted internally. I hope that I have not confused the noble Lord further; I am just seeking to clarify the position.
Lord Bach
I hope that the noble Lord will forgive me for asking the noble Baroness about something that she said in her summing up a little while ago about the position of chief constables. She said that any complaint against them would automatically go to the IPCC. There is a view that says that this is slightly harsh and is not necessary and will mean more work for the IPCC in some cases than is necessary. What is the view of the IPCC on that proposal? It seems to some of us that the IPCC is overburdened and overworked. Does it really want the most trivial complaint against a chief constable—they do exist, it has to be said—to have to go to the IPCC without investigation? Is that not too extreme a measure?
Baroness Williams of Trafford
I think I said in my summing-up—if I missed it, I apologise—that most complaints are investigated by the IPCC but some may end up being investigated by chief constables from other forces. I am guessing that those will be the more low-level investigations. Therefore, not absolutely everything has to go to the IPCC. I do not know the IPCC’s view on this but Chip Chapman has recommended that all investigations should be undertaken by an independent body.
Lord Blair of Boughton
Perhaps I may intervene again—and again I declare my interest as a former commissioner. The mailbox of the Metropolitan Police is pretty large and contains lots of complaints about the fact that the commissioner has failed to do something. The commissioner is probably blissfully unaware of thousands of complaints. Is it being suggested that, every time somebody says, “I wish to complain about the Commissioner of Police of the metropolis because Constable Such and Such did not put a ticket on a car outside my house”, that is a complaint against the commissioner? It would be the same for chief constables.
There is a sense here that we are losing sight of the scale of the mailbox. There is a famous story of one of my predecessors who came from outside the force finding out that not all letters that were addressed to the commissioner came to his office. A week later, he realised why—when the mailbags fell in through the door. There has to be a level of reasonableness and, at the moment, I am not hearing that reasonableness. I am hearing the idea that everything will be sent to the IPCC or investigated by another chief constable. We could block the entire system unless we get a degree of reasonableness—and I am not sure where that is going to appear. I put that surmise to the Minister.
Lord Swinfen (Con)
Will my noble friend look at the practicality of the matter, which has been so well explained?
Lord Paddick
My Lords, I am very grateful to those who have contributed to this short debate and to the Minister. As regards the comments of the noble Lord, Lord Blair, my reading of this is that it concerns complaints against the commissioner himself rather than vicarious liability responsibility—which, of course, the commissioner carries for all his officers. The clue lies in the fact that the legislation goes on to talk about “death or serious injury” matters—not that the commissioner is known for using physical violence against people.
Lord Bach
I am so sorry to interrupt again. I wonder whether there is a proper distinction between a complaint per se and a complaint that may be laid vicariously at the commissioner’s or chief constable’s door. Who will make that distinction when the complaint comes in? It will add to the existing bureaucracy and is another reason for listening very carefully to what the noble Lord, Lord Blair, suggested a minute or two ago.
Lord Paddick
I am very grateful to the noble Lord, Lord Bach, and I will leave it to the Government to respond. The deputy commissioner of the Met was, at least at one stage, considered to be a first among equals among assistant commissioners. I will have to read the second part of the Minister’s explanation on that issue. As regards the other matter, again, I will want to read carefully what the Minister said—but at this stage I beg leave to withdraw the amendment.
Lord Paddick
Lord Paddick
My Lords, in moving Amendment 126A, which is also in the name of my noble friend Lady Hamwee, I will speak to Amendment 165A in this group.
Clause 18 deals with sensitive information received by the IPCC and restrictions on disclosing that information. It amends Part 2 of the Police Reform Act 2002 by inserting new Clause 21A, subsection (3) of which defines sensitive information as including,
“information obtained from a government department which, at the time it is provided to the Commission or the paragraph 18 investigator, is identified by the department as information the disclosure of which may, in the opinion of the relevant authority … cause damage to national security, international relations or the economic interests of the United Kingdom or any part of the United Kingdom”.
When this House recently considered the Investigatory Powers Bill, where matters were considered to be related to the economic interests of the United Kingdom it was made explicit that these were only where the economic interests were directly linked to national security. Amendment 126A would insert the wording,
“so far as those interests are also relevant to the interests of national security”,
to make it explicit in this Bill as well as in the Investigatory Powers Bill. Amendment 165A makes a similar change to the term “economic interests” in Clause 35, which amends Schedule 4A to the Police Act 1996 in relation to the restriction on disclosure of sensitive information acquired by Her Majesty’s inspectors of constabulary. I beg to move.
Baroness Williams of Trafford
My Lords, Clause 18 increases the protections afforded to any sensitive information that is obtained by the Independent Police Complaints Commission in the course of its investigations or by a police or National Crime Agency investigator conducting an investigation under the direction of the IPCC. Clause 18 ensures that where the IPCC or investigator receives “sensitive information” it must not disclose that information without the consent of the “relevant authority”, as defined in the clause. To assist the IPCC or investigator in fulfilling this requirement, Clause 18 places a duty on the person providing the information to make the IPCC or investigator aware that the information is sensitive and to provide enough detail to permit the identification of the appropriate “relevant authority”. Clause 35 does likewise in respect of sensitive information received by Her Majesty’s Inspectorate of Constabulary.
“Sensitive information” in this context means: first, that provided by or that which relates to the security and intelligence services; secondly, information derived from interception; and thirdly, information provided by a government department which may, if disclosed, cause damage to national security, international relations or the economic interests of the country or any part of it. In such instances, the government department must identify it as such when it provides the information to the IPCC or investigator. Amendments 126A and 165A seek to narrow the third part of this definition by carving out information which may cause damage to the economic interests of the UK or part of the UK, unless there is a national security link. In effect, this would mean that the IPCC, investigator or HMIC would not need the relevant authority’s consent to disclose certain economically sensitive information that could, if disclosed or handled inappropriately, have a negative economic impact on the country. The drafting approach taken in the Bill in relation to the definition of “sensitive information” is not new. The drafting simply replicates the existing definition in paragraph 19ZD of Schedule 3 to the Police Reform Act 2002, which these provisions replace.
I stress that the primary purpose of Clauses 18 and 35 is not to prevent sensitive information being provided for legitimate reasons, such as to the CPS in the event of criminal proceedings, but, rather, to protect that information and ensure that it is handled appropriately. Simply because a piece of information falls under the definition of “sensitive information” in Clauses 18 or 35, the relevant authority cannot unreasonably withhold its consent to its disclosure; it is a matter of public law that decisions made by the relevant authorities must be both reasonable and rational. The Government are simply closing a gap to provide additional certainty and reassurance around the handling of sensitive information, not to prevent any greater disclosure than is absolutely necessary.
I hope that that has clarified the matter for the noble Lord and that he is content to withdraw his amendment.
Lord Paddick
I am very grateful to the Minister for that lengthy explanation, but it does not answer the question that I asked. The drafting may not be new but my understanding is that it is inconsistent with the Investigatory Powers Bill. We sought clarification and the Government agreed to put it on the face of the Bill that economic interests meant economic interests that are likely to impact on national security. It may be consistent with previous legislation but my understanding is that it is not consistent with the most recent legislation. That is the question that I hoped she would answer. I understand and accept everything that she has said; it is what is missing that is key.
Baroness Williams of Trafford
Perhaps I can provide further clarification, although I am not sure that it will clarify matters much better. Clause 18 talks about,
“the economic interests of the United Kingdom or any part of the United Kingdom”.
Clause 62 of the Investigatory Powers Bill says,
“in the interests of the economic well-being of the United Kingdom so far as those interests are also relevant to the interests of national security”.
There is a variation in the drafting of the two Bills because the provisions serve entirely different purposes. It is right that where authority is being sought to obtain communications data or to issue warrants for the purpose of the economic well-being of the UK, it should be done only where it is also relevant to the interests of national security. In Clause 18 of this Bill, the definition of “sensitive information” is intended to provide a safeguard to ensure that, whenever the IPCC handles particular types of information that originate from the security services or from government departments, it checks with the relevant authority before disclosing that information. The noble Lord does not look convinced but I hope that that has provided further clarification.
Lord Paddick
I need to improve my poker face skills. I am very grateful to the Minister for that explanation. I will read it to see whether I can get the answer to my question from what she has said, but at this stage I beg leave to withdraw the amendment.
Lord Paddick
Lord Paddick
My Lords, in moving Amendment 128 in my name and that of my noble friend Lady Hamwee I will speak also to the other amendments in the group—Amendments 129 and 130. These are probing amendments that relate to which bodies can be designated as being eligible to bring super-complaints against the police.
Bodies are to be designated by the Secretary of State through regulations. Clause 25 inserts a new Section 29B into Part 2A of the Police Reform Act 2002. Subsection (5) of new Section 29B states:
“The Secretary of State must, before making regulations under subsection (3) or (4), consult such persons as the Secretary of State considers appropriate”.
However, it does not require the Secretary of State to consult on subsection (1). Adding in reference to subsection (1) means that the Secretary of State would have to consult before making the regulations that designate which bodies should be capable of bringing super-complaints. Those regulations presumably will set out the criteria referred to in subsections (3) and (4). That means that there will be consultation on those as well.
Amendment 129 lists the three bodies—the Law Society of England and Wales, the National Council of Voluntary Organisations, and Citizens Advice—that, along with others as specified by the Secretary of State, would be made “authorised” persons for the purposes of subsection (2)(d). That gives them a role in designation, as they are likely to know the territory and issues involved, know their members and know which the good non-governmental organisations are, and so on.
Amendment 130 is intended to ensure that the first regulations made under subsections (1), (3) and (4) of new Section 29B are subject to the affirmative resolution process. I beg to move.
Lord Kennedy of Southwark (Lab)
My Lords, this section of the Bill gives the power to designated bodies to make super-complaints to Her Majesty’s Chief Inspector of Constabulary. The complaints can be made where, in the opinion of those bodies, a feature of policing is harming the public and needs to be looked at.
The noble Lord, Lord Paddick, listed three organisations to make these super-complaints to be put on the face of the Bill. I have some sympathy with the amendments that have been put forward, but I understand that they are probing amendments. I hope that when the noble Baroness replies she can give us some indication of the organisations likely to be designated to make these complaints under the regulations. It is important that, when creating these new powers, we have some idea of what the organisations are likely to be. Are those listed in the amendment likely candidates to be designated when this comes into force, or are there others?
Baroness Chisholm of Owlpen
I am grateful to the noble Lords, Lord Paddick and Lord Kennedy, for the opportunity to debate the provisions in the Bill that will create a new system of policing super-complaints.
There are currently three extant super-complaints systems, having been originally created in the Enterprise Act 2002. These systems exist in the commercial sector, the financial system and in payments regulation. All relate to systemic issues affecting consumers relating to private sector organisations. The police super-complaints system, although based on the success of these antecedents, will be the first such system to address issues in the public sector.
A super-complaint is defined in Clause 24 as a complaint that,
“a feature, or combination of features, of policing … by one or more than one … force is, or appears to be, significantly harming the interests of the public”.
Only bodies designated for the purpose of these provisions will be able to make a super-complaint, but any body can be designated if it meets the relevant criteria. Those criteria for designation will, following consultation, be laid out in regulations. The system will be “owned” by the HM Chief Inspector of Constabulary, so as to be sufficiently independent of government. Ultimately, this system will allow charities and advocacy groups to raise systemic issues they identify in policing in a more effective way, leading to the improvement of policing in England and Wales.
I turn now to the noble Lord’s amendments which focus on the regulations relating to designated bodies and the designation process contained in Clause 25. The designated bodies able to make a super-complaint will be set out in regulations. Amendment 128 would require the Government to consult on such regulations. We have provided in Clause 25 for consultation on the regulations setting out the criteria for designation, but we do not believe that it is appropriate to consult each and every time a new body is given designation status. Any body that is so designated will have been assessed as meeting the criteria for designation. The Government believe that the criteria are the key to getting the right bodies involved in the system. This is why it is the criteria rather than the bodies themselves that will be subject to consultation. Following consultation on the criteria, further consultation on the resulting list of designated bodies would be unnecessary and, if conducted every time a body is designated, would be burdensome.
On Amendment 129, the Government agree that the nature of the bodies involved in the super-complaints system is key to its success. That is why we shall be consulting widely on the criteria for designation. Furthermore, the Government intend to include a requirement in the criteria for designated bodies to act as umbrella bodies for smaller organisations. This will ensure that any bodies that notice a systemic issue with policing, but are not designated, are still able to raise an issue through another organisation.
We have engaged with a number of key bodies, including Citizens Advice, in the development of this policy. We will continue to work with these bodies throughout its implementation to ensure that the system works in the public interest. It will of course be open to Citizens Advice, the Law Society and the National Council for Voluntary Organisations to apply for designated body status, but that decision is a matter for them. The Government would welcome the input of your Lordships on any particular bodies or organisations that may work towards the improvement of policing through becoming designated bodies.
Amendment 130 would require the first regulations made in relation to designation to be subject to the affirmative procedure. The Government set out the rationale for applying the negative procedure to these regulations in their delegated powers memorandum. That memorandum has been considered by the Delegated Powers Committee which did not take issue with the application of the negative procedure whether on the first or subsequent exercise of these powers. The negative procedure is consistent with the legislative framework applicable to existing super-complaints systems and I see no good case for departing from it here.
Having given these provisions in the Bill the airing they deserve, I hope that the noble Lord will be content to withdraw his amendment.
Lord Kennedy of Southwark
The noble Baroness has talked about consultation on the regulations. Is there a timescale for when that will take place because obviously the Government will complete their consultation and make a decision before the regulations come into force? Can she give us some idea of when it will be?
Baroness Chisholm of Owlpen
If there is a timescale that we know of, I will write to the noble Lord, but I do not have it here in my notes.
Lord Harris of Haringey
My Lords, it is clear that the Government have given a great deal of thought to the concept of super-complaints. Have they made any assessment of how many such super-complaints might be presented and what proportion of the time of Her Majesty’s Inspectorate of Constabulary is likely to be devoted to looking into such matters?
Baroness Chisholm of Owlpen
We do not know how many super-complaints will be made because it is difficult to judge that. The point about the super-complaints is that they will make an enormous difference to the way things are done. It was interesting to note that in March this year the then shadow Home Secretary, Andy Burnham, held a seminar with the noble Baroness, Lady Lawrence, which brought together groups that are still campaigning for justice, such as the Shrewsbury 24 campaign, the Orgreave Truth and Justice Campaign, and Justice 4 Daniel. A common thread runs through all of these groups but the way the system works at the moment forces them all to plough their own furrow; it does not allow them to join forces. The super-complaint proposal will rebalance the system in their favour and mean that they can join together.
Lord Kennedy of Southwark
My Lords, perhaps I may pursue the point about the regulations one more time. The noble Baroness has said that there is no timescale but that she will write to me if she can find out if there is. I should say to her that this issue is very important to the campaigns she has just listed. If this legislation gets on to the statute book without us knowing where we are with the regulations, of course it cannot come into force. I hope that she will take back to the department and her ministerial colleagues that the consultation should be done with the utmost urgency. There is no point in passing the legislation if people cannot actually make their complaints.
Baroness Chisholm of Owlpen
I do not have a timescale. I do not want to give the noble Lord false information, so it is only fair that I write to him.
Lord Paddick
My Lords, I am very grateful to noble Lords who have contributed to the debate, and for the response given by the Minister. I have a confession to make: I did not write the amendments. I am glad to see that everyone fell into the same trap I did. The intention of Amendment 128, whether or not it would be the effect, is for there to be consultation on the regulations, not each time an organisation is designated. It could be that it is a mistake in the drafting—I can say that because I did not draft them.
The organisations listed in Amendment 129 are suggestions as to who authorised persons should be under the Act, not who the designated bodies should be. The authorised persons are those who can make representations to the Secretary of State to have a particular body designated or removed from the list of designated bodies. That is what I believe I explained when I introduced the amendment. The list that includes the Law Society and so forth is not a list of bodies that we think should be designated, but a list of people who should be authorised persons who can then ask the Secretary of State to add or remove people from the list of designated bodies.
I will read again the view of the Delegated Powers Committee so far as Amendment 130 is concerned, but at this stage I beg leave to withdraw Amendment 128.
Lord Rosser
“Police complaints and the media
(1) Subject to subsection (3), the Prime Minister must commission an independent inquiry into the operation of the police complaints system in respect of relationships between the police and media.(2) The matters that are the subject of the inquiry shall include, but shall not be limited to—(a) how adequately police forces investigate complaints about police officers dealing with people working within, or connected to, media organisations;(b) the thoroughness of any reviews by police forces into complaints of the type referred to in paragraph (a);(c) in those cases where a complaint of the type referred to in paragraph (a) led to a criminal investigation, the conduct of prosecuting authorities in investigating the allegation;(d) whether any police officers took illegal payment to suppress investigations into complaints about relationships between police officers and people working within, or connected to, media organisations;(e) the implications of paragraphs (a) to (d) for the relationships between media organisations and the police, prosecuting authorities, and relevant regulatory bodies, and recommended actions.(3) The inquiry may only start once the Secretary of State is satisfied that it would not prejudice any relevant ongoing legal cases.”
Lord Rosser
My Lords, the amendment would provide for the Prime Minister to commission an independent inquiry into the operation of the police complaints system in respect of relationships between the police and media. It also states that the inquiry may start only once the Secretary of State is satisfied that it would not prejudice any relevant ongoing legal cases.
The objective of the proposed new clause set out in the amendment is to seek to hold the Government to their promise to the victims of press intrusion to hold a second stage of the Leveson inquiry to look at the culture of relations between the police and the press. In November 2012, the then Conservative Prime Minister reminded the victims of press intrusion that when he set up the Leveson inquiry he had also said there would be a second part to investigate wrongdoing in the press and the police, and that his Government remained committed to the inquiry as it was then established. He then went on to say:
“It is right that it should go ahead, and that is fully our intention”.—[Official Report, Commons, 29/11/12; col. 458.]
However, real doubts about the Government’s willingness to honour that promise have arisen. Ministers have subsequently used language that suggests it is no longer a question of when the inquiry will go ahead, but rather of whether it will go ahead.
Police-press relations is a significant area still to be addressed. We have yet to start to make changes to properly put right, once and for all, the kind of wrongs that have now come to light, for example, following the Hillsborough tragedy. Briefings by the police in the immediate aftermath of the tragedy had a profound adverse impact, not just on the families who had lost loved ones, but on thousands who had been at the match and returned home in a state of some trauma, only to read a few days later that the police were blaming them for the deaths of their friends and family. It surely cannot be right that a police force is able, unattributably or otherwise, to brief damning and unproven information to a newspaper. The extent and reasons for such practices, both previously and more recently, must be investigated independently and openly and those practices brought to an end.
Lord Paddick (LD)
My Lords, I support the amendment in the name of the noble Lord, Lord Rosser. The second stage of Leveson is a very important stage of the investigation into the conduct of the police and the media. It is essential that it is carried out as soon as possible, bearing in mind that there may be outstanding criminal cases that need to be dealt with first.
It is understandable that a slightly one-sided picture has been given of the relationship between police and press. There are many entirely appropriate relationships between the media and press which are beneficial to the public interest. For example, appeals for witnesses to a serious crime can receive the wide publicity sometimes required only with the co-operation of the media and local press. There are searches for missing persons, where an appeal needs to be made nationally to try to identify where a vulnerable person might be. Clearly, there are examples of the opposite. Hillsborough is one. Another rather common example is where, sadly, the police brief the media casting doubt on the character of those who died at the hands of the police.
I am not saying that it is entirely a positive relationship but it is necessary for the police to have a relationship with the media. It is important to differentiate between positive and appropriate relationships and negative and entirely inappropriate ones, particularly, as happened with the phone hacking case, where there was at least the opportunity for critics of the police to suggest that their lack of enthusiasm initially to investigate phone hacking by the media might have had something to do with that too-close relationship. For those reasons, I support the amendment.
Lord Kennedy of Southwark
My Lords, I, too, support the amendment moved by my noble friend Lord Rosser. I agree with the comments of the noble Lord, Lord Pannick. I very much support the police. They do a fantastic job for us and put their lives on the line every day to keep us safe.
The noble Lord is right when he talks about the need for an appropriate relationship between the media and the police, and how important that is. Equally, as my noble friend Lord Rosser said, there are obviously times when things go wrong. Clearly what happened at Hillsborough was an absolute tragedy. Can you imagine losing a loved one on that day and then having to endure the abuse in the media which has clearly now been shown not to be true? We should pay tribute to the steely determination of the Hillsborough families to get justice for their loved ones. They not only lost them but saw their names dragged through the mud.
It is important that we get to the point where the Government can clarify that they will proceed with the second stage of Leveson. There are some nuances between the statement we had from the previous Prime Minister and what we had from this Dispatch Box more recently. That difference might just be a few words which mean nothing at all, but we need to be clear that this should go ahead and that the Government are determined that any prosecution dealing with this will proceed.
Baroness Williams of Trafford
My Lords, I thank all noble Lords who contributed to this debate. I join the noble Lord, Lord Kennedy, in paying tribute to the victims of the Hillsborough disaster, which took place not far from where I live.
As the noble Lord, Lord Rosser, explained, this amendment would require the Prime Minister to establish what is colloquially referred to as the Leveson 2 inquiry into the relationships between the police and the media. It is worth noting that the drafting of this amendment goes beyond the terms of reference of the Leveson inquiry. Part 1 examined the culture, practices and ethics of the media; if it goes ahead, Part 2 is to examine wrongdoing in the press and the police, including the failure of the first police investigations into phone hacking and the implications for police and press relations.
This amendment would, for example, extend the remit of Leveson 2 to cover how the police investigated any complaints about their dealings with people connected to the media, and to the conduct of the CPS where complaints led to criminal investigations. This is well outside the scope of the current inquiry terms of Leveson 2. The Government are of the view that it is not necessary to legislate to require Leveson 2 as it is already set up under the Inquiries Act 2005. As the noble Lord will be aware, there are still ongoing criminal cases relevant to the subject matter of the Leveson inquiry. I welcome the fact that subsection (3) of the proposed new clause recognises the importance of not prejudicing those outstanding criminal proceedings. We have always been clear that these cases, including any appeals, must conclude before we consider part 2 of the inquiry. Given this, and the fact that we already have an appropriate legal framework in the Inquiries Act, it is not an appropriate matter for further legislation. There is an established process in place for taking this matter forward. On that basis, I hope the noble Lord will withdraw his amendment.
Lord Rosser
The Minister referred to subsection (3) in the amendment, which states:
“The inquiry may only start once the Secretary of State is satisfied that it would not prejudice any relevant ongoing legal cases”.
She also made reference to Leveson 2. Is it the Government’s position that once ongoing cases have been determined, the second stage of Leveson will take place, or—as I think the Minister said on behalf of the Government—that once outstanding cases have been resolved, the Government will only consider whether to proceed with the second stage of Leveson? Can the Minister clarify what she said? Are the Government saying that once outstanding cases have been resolved, Leveson 2 will take place, or is the Minister simply confirming what now appears to be the Government’s stance—unlike the promise that was given—that they will only consider whether to move to the second stage of Leveson?
Baroness Williams of Trafford
It is the latter. We will make a decision on Leveson 2 once the outstanding cases have been concluded.
Lord Rosser
Can the Minister say why the position has changed from the very clear and specific commitment given by the previous Prime Minister that the second stage of Leveson would take place?
Baroness Williams of Trafford
My Lords, both the current Prime Minister and the previous Prime Minister were very clear that all the cases of Leveson 1 should be concluded before Leveson 2 is considered.
Lord Rosser
Is the Minister saying on behalf of the Government that the previous Prime Minister did not give a commitment that the second stage of Leveson would take place? Is she really saying on behalf of the Government that the previous Prime Minister gave a commitment only to consider whether the second stage of Leveson should take place?
Baroness Williams of Trafford
My Lords, I would have to look at the exact words that the previous Prime Minister used before I contradicted the noble Lord. I certainly do not want to contradict the noble Lord. In terms of the process, both the current Prime Minister and the previous Prime Minister were clear that Leveson 2 could not proceed until Leveson 1 was concluded.
Lord Rosser
I find the Government’s response most unsatisfactory but at least the Minister has confirmed that there has been a complete shift in the Government’s stance. I will say what I think: the Government have now gone back on the very clear undertaking that was given by the previous Prime Minister that the second stage of Leveson would take place.
Baroness Williams of Trafford
My Lords, I hope I did not make it clear that we have gone back on the decision but we will make a decision on Leveson 2 once those outstanding cases have been concluded, which is rather different from going back on what was said.
Lord Rosser
The promise that was given was that there would be a second stage of Leveson. If the Government are now saying that once the outstanding cases are concluded they will only consider whether they should move to a second stage of Leveson, that is going back on the promise that was given. It is no longer specific. Does the Minister not agree?
Baroness Williams of Trafford
I think we are going to have to agree to differ that we have not gone back but we will consider it once those cases have concluded.
Lord Rosser
I accept that the Committee will not want me to continue with an argument over the difference in wording, but I will simply restate my stance that for the Government now to say that they will only be considering a second stage of Leveson is not what the previous Prime Minister said in the promise he gave to the victims of press intrusion. I strongly regret the answer that we have received from the Government today, but nevertheless beg leave to withdraw the amendment.
Lord Paddick
Lord Paddick
My Lords, in moving Amendment 132 I will speak also to our Amendments 135, 136 and 137 in this group and in support of Amendments 133 and 134, in the name of the noble Lord, Lord Rosser.
Clause 27 relates to investigations by the IPCC of concerns raised by whistleblowers and inserts a new Part 2B into the Police Reform Act 2002. If we were asking for this clause to not stand part of the Bill, it would be a case of 2B or not 2B—but that is not what we are asking for. I am just checking to see whether noble Lords are awake. New Section 29D of the 2002 Act defines a whistleblower as a person who,
“raises a concern … about a police force or a person serving with the police”,
and who is,
“under the direction and control of a chief officer of police”,
at the time. However, it does not cover cases where the whistleblower is currently under the direction and control of a chief officer. One potential scenario is where the whistleblower is a witness to an incident that happened before he or she joined the police service, and wishes to draw the matter to the attention of the IPCC. Our Amendment 132 would legislate for that scenario.
I move on to Amendments 135, 136 and 137. New Section 29I of the 2002 Act allows the Secretary of State, by regulations, to set out the circumstances where the identity of the whistleblower may have to be disclosed. This may be done only for permitted disclosure purposes, one of which is,
“the institution or conduct of criminal proceedings”.
Our concern is that a whistleblower may not realise that his or her identity may be revealed if the investigation turns into a criminal one, and that the whistleblower should be informed at the outset that this might be the case, so that they can withdraw the concern if they are worried by that prospect. Amendment 135 addresses that issue.
New Section 29E of the 2002 Act sets out the actions of the IPCC if it chooses not to investigate, including making recommendations in the light of the concern. Subsections (4) and (5) allow the Secretary of State to make regulations in relation to such a scenario, including, in (5)(a), to,
“describe the kinds of recommendations that the Commission may make”.
Our Amendment 136 is aimed at ensuring that the IPCC is not restricted as to what recommendations it can make by adding that the Secretary of State,
“may not specify an exclusive list of recommendations”.
In new Section 29L of the 2002 Act, the Secretary of State is required to consult various bodies before making regulations about whistleblowers. We believe that organisations representing police officers and staff should be included in the list of groups who must be consulted. Our Amendment 137 makes this change. We also support, as I mentioned, Amendments 133 and 134, in the name of the noble Lord, Lord Rosser. I beg to move Amendment 132.
Lord Kennedy of Southwark
My Lords, this section of the Bill deals with whistleblowing and investigations by the IPCC. It provides a new power for the IPCC to investigate matters raised by a police whistleblower without the matter having to be raised with the police force concerned, and provides further powers to protect the identity of the individual or individuals concerned. All the amendments in this group are in the names of the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee, with the exception of Amendments 133 and 134 in the name of my noble friend Lord Rosser.
Amendment 132 seeks to provide as much clarity as possible and allows for the eventuality that the person making a complaint could still be under the direction and control of a chief officer of police. This amendment raises an interesting point, which was highlighted by the noble Lord, Lord Paddick, when he presented his scenario to the House a few moments ago. I hope that when the Government respond they will be as clear possible in their reasoning if they do not think the amendment is necessary.
The amendments in the name of my noble friend seek to add clarity to this section of the Bill by making clear that these provisions cannot be used if the matter is subject to an ongoing investigation. Amendment 134 would allow for whistleblowing protections to be applied to police witnesses. These are good amendments that would strengthen what is proposed by the Government.
When reading and thinking about Amendment 135, I was not completely convinced that it was either necessary or should in fact be there. Having said that, I listened to the points made by the noble Lord, Lord Paddick, and I think that he persuaded me on those.
I am not sure what Amendment 136 adds to the Bill as it would not put in the Bill an exclusive or exhaustive list. Amendment 137 is completely correct: organisations representing police officers and staff must be consulted before regulations are made concerning this section of the Bill. It is not good enough to rely on the subsection that talks about other organisations that are deemed appropriate. Those organisations deserve to be in the Bill when it leaves this House.
Baroness Chisholm of Owlpen
I am grateful to the noble Lords, Lord Paddick and Lord Kennedy, for the opportunity to debate the provisions in the Bill that will strengthen protections for police whistleblowers. The Government are committed to ensuring that those working for the police have the confidence to come forward to report concerns of malpractice and misconduct within the service.
Forces should, and do, provide channels for staff to raise such issues in confidence. However, Her Majesty’s Inspectorate of Constabulary has found that the quality of reporting arrangements and support offered to whistleblowers varied considerably by force, and a key concern was a lack of trust in confidential reporting. That is why, through Clause 27 and Schedule 6, we are creating a specific power for the Independent Police Complaints Commission to investigate whistleblowing allegations. If the IPCC decides to investigate, it does not have to refer the matter to the force unless the concern is about a conduct-related matter for the purposes of Part 2 of the Police Reform Act 2002. Even if it decides not to investigate, it will have to take all reasonable steps to ensure that the whistleblower’s identity is protected. These changes will give officers and staff much greater assurance that their concerns will be considered objectively and discreetly.
I have listened with interest to the points raised by the noble Lords, Lord Paddick and Lord Kennedy, and on two points I have some sympathy—I see that I have surprised the noble Lord, Lord Kennedy. The first is dealt with in Amendment 132, which seeks to modify the definition of a whistleblower to include those raising a concern about matters that occurred within a police force prior to them joining the police. The legislation as currently drafted allows for existing and former members of a police force to raise concerns about matters that occurred while they were serving. It is evident that some cases of police misconduct and malpractice can go unreported for some time, and it may be appropriate that there be some scope for this to be brought to light, as prescribed under new Part 2B, by a whistleblower who had joined the force at a later stage.
Amendment 133, tabled by the noble Lord, Lord Rosser, and spoken to by the noble Lord, Lord Kennedy, addresses the concern that there is a risk under the new provisions that a police officer or staff member interviewed as a witness in connection with a Part 2 investigation by the commission could be deemed a whistleblower, and that this could lead to confusion and complexity. Amendment 133 would prevent the IPCC having to start a new investigation where one is already under way in relation to the concern that has been raised. I am sympathetic to that point.
However, it is not the intention of the legislation to capture those providing factual information in an existing investigation. Rather, the aim of the legislation is to encourage whistleblowers to come forward and capture those concerns that are not being investigated but, in the public interest, should be considered independently by the IPCC and subject to its recommendations.
For this reason, I have less sympathy with Amendment 134, which would allow the IPCC discretion to confer whistleblowing status on any individuals providing evidence in existing investigations. We do not wish to create an expectation among police witnesses that the IPCC could offer them protections in return for giving their evidence. I understand that the IPCC has concerns about the protections available for those who provide it with evidence, but this is a much broader issue which needs be considered in the longer term, beyond the narrow confines of the whistleblowing provisions and in consultation with all relevant policing stakeholders.
Amendment 135 would impose an express duty on the IPCC to inform a whistleblower that his or her identity may be disclosed in the course of any criminal proceedings and to give the whistleblower an opportunity to withdraw the concern. The legislation is quite clear on the protection of anonymity and the circumstances in which a whistleblower’s anonymity might cease to be protected. As well as criminal proceedings, such circumstances could, for example, include the interests of national security and allegations of misconduct against the whistleblower him or herself. It is not practicable for the primary legislation to include every possible prescription. We would expect the IPCC to do its best to ensure that police officers were aware of the limitations of anonymity before they raise their concern, as I do not believe that it would be practical or desirable to provide for a concern to be withdrawn or unsaid by a whistleblower.
Guidance will support the new provisions, including an update of the College of Policing’s Reporting Concerns guidance, to promote awareness and understanding of these important reforms for whistleblowers. The protections offered by the new process that the Government are providing for whistleblowers can only go so far, and certainly not at the expense of allowing criminals to escape justice.
Amendment 136 would restrict the power of the Secretary of State to stipulate the matters on which the IPCC can make recommendations to a police force in cases where it has decided not to investigate a whistleblower’s concerns. I reassure the noble Lord, Lord Paddick, that the intention is not to provide the Secretary of State with the power to prescribe an exclusive list but merely to describe the kinds of recommendations that the IPCC may make. The purpose of the provision is to assist the IPCC in those cases where it decides, with the whistleblower’s consent, to refer the matter to the appropriate authority.
Finally, in response to Amendment 137, the Bill already requires the Secretary of State to consult on the whistleblowing regulations with police staff associations as members of the Police Advisory Board for England and Wales. This matter was discussed in the House of Commons and subsection (5) of new Section 29M to the Police Reform Act 2002 was inserted on Report there to provide for this requirement.
On the understanding that I will consider further, in advance of Report, Amendments 132 and 133, I ask the noble Lord, Lord Paddick, to withdraw his amendment.
Lord Kennedy of Southwark
I was pleased that the Minister was sympathetic to the point I made on Amendment 133; that is certainly progress. My noble friend raised an important point. We do not want it not to be addressed in legislation on the suggestion that it will come back as guidance, and then we have as an unintended consequence when the guidance is not strong enough that someone makes a complaint and what we thought could not happen does. We need to reflect on that, and perhaps the Government could come back on Report, because I think my noble friend has identified an important issue: we would not want a conflict there to cause problems in future.
Lord Paddick
I am very grateful to the Minister for her explanation and for admitting the concern of Her Majesty’s Inspectorate of Constabulary that support for whistleblowers at present is patchy. We welcome the changes that the legislation brings in terms of reassurance to whistleblowers. I am grateful that the noble Baroness has undertaken to take away our Amendment 132 to see whether anything can be done.
I am not sure that whistleblowers will be reassured by the noble Baroness’s response to Amendment 135, that the IPCC will do its best to keep their identity secret. Again, we are discussing whether something should be in the Bill or in statutory guidance, and if in statutory guidance it will be adhered to in the real world.
On Amendment 136, we understand that it is not the intention to restrict the recommendations that the IPCC can make in response to an issue of concern raised by a whistleblower that is not investigated by the IPCC. However, perhaps the Minister might consider putting in statutory guidance the fact that it is not the intention of the legislation to restrict the number or type of recommendations that the IPCC can make. I will reflect on what she said about Amendment 137, which appears to be a reasonable explanation. In the meantime, I beg leave to withdraw Amendment 132.
“(c) condition A, B or C is satisfied in relation to the person. (3AA) Condition A is that the person ceases to be a member of a police force after the allegation first comes to the attention of a person mentioned in subsection (3A)(a).(3AB) Condition B is that the person had ceased to be a member of a police force before the allegation first came to the attention of a person mentioned in subsection (3A)(a) but the period between the person having ceased to be a member of a police force and the allegation first coming to the attention of a person mentioned in subsection (3A)(a) does not exceed the period specified in regulations under this section.(3AC) Condition C is that—(a) the person had ceased to be a member of a police force before the allegation first came to the attention of a person mentioned in subsection (3A)(a),(b) the period between the person having ceased to be a member of a police force and the allegation first coming to the attention of a person mentioned in subsection (3A)(a) exceeds the period specified for the purposes of condition B, and(c) the alleged misconduct, inefficiency or ineffectiveness is such that, if proved, the person could have been dealt with by dismissal if the person had still been a member of a police force.(3AD) Regulations made by virtue of subsection (3A) as they apply in a case where condition C is satisfied in relation to a person must provide that disciplinary proceedings may be taken against the person in respect of the alleged misconduct, inefficiency or ineffectiveness only if the Independent Police Complaints Commission determines that taking such proceedings would be reasonable and proportionate having regard to—(a) the seriousness of the alleged misconduct, inefficiency or ineffectiveness,(b) the impact of the allegation on public confidence in the police, and(c) the public interest.(3AE) Regulations made by virtue of subsection (3A) may make provision about matters to be taken into account by the Independent Police Complaints Commission for the purposes of subsection (3AD)(a) to (c).”
Baroness Williams of Trafford
My Lords, the important amendments in this group relate to the circumstances in which disciplinary action may be taken against former police officers and former special constables.
Clause 28 will allow for the extension of the disciplinary regime to former officers where an allegation arose before they resigned or retired, or arose within a period of time following their resignation or retirement. The relevant period will be specified in regulations and we have made it clear that we intend to specify 12 months. On Report in the Commons, the then Policing Minister undertook to bring forward amendments which would set aside the 12-month time limit in exceptional circumstances. The government amendments in this group make good on that commitment.
I start by recognising, as the whole House does, that the vast majority of police officers and special constables conduct themselves with absolute integrity. They serve our communities with distinction and loyalty throughout their careers and, in doing so, demonstrate the values set out in the College of Policing’s Code of Ethics on standards of professional behaviour. Nevertheless, and regrettably, a small minority do not meet the high standards of professionalism that the public rightly expect. The public also expect those suspected of serious misconduct to be subject to formal disciplinary proceedings and that, where officers are in the wrong, they are held to account for their actions. Indeed, that is what both the public, and the majority of decent, dedicated and hard-working police officers in this country deserve.
The Bill already contains significant reforms to increase the accountability of former police officers. As I have indicated, the provisions in Clause 28, and the accompanying regulations, will ensure that where an allegation that could have led to dismissal had the officer still been serving comes to the attention of a force within 12 months of an officer’s resignation or retirement, or where an individual resigns while an investigation is ongoing, this can be investigated or continue to be investigated and that, where appropriate, disciplinary action can be taken to hold the officer to account for serious wrongdoing. Where a case is proven, the new police barred list will ensure that the individual concerned is prevented from future service in policing.
These are important steps, but we need to go further, particularly in the wake of high-profile cases where there is a perception that retired officers suspected of committing the most serious acts of gross misconduct have not been held to account where such acts cause serious harm to public trust and confidence in policing. In these cases, which can emerge long after individuals have left policing, there is more to be done to prevent the perception that officers who have left policing are able to evade accountability. We recognise the strength of feeling in relation to such cases and, in particular, the public concern that police officers who commit the most serious acts of wrongdoing should be held to account for their actions. The Government also recognise the importance of ensuring that the measures introduced are proportionate for policing as a whole and fair for individual officers.
The amendments that stand in my name achieve this important principle of accountability and do so in a way that is robust, fair and proportionate. In effect, these create the new exceptional circumstances test, which will be applied by the IPCC and, in due course, by the director general of the Office for Police Conduct, following the reforms to the IPCC. In our view it is right that the decision as to whether the exceptional circumstances test is met is taken by an organisation independent of government and free from any politicised decision-making. The IPCC carries out its role and functions in a way that is well established within the sector as the independent watchdog for policing.
It would be only in those cases where this test is met and the IPCC has determined that it would be reasonable and proportionate to do so that disciplinary proceedings could be instigated. In deciding whether the exceptional circumstances test is met, the IPCC will have to have regard to the seriousness of the alleged misconduct, inefficiency or ineffectiveness, the impact of the allegation on public confidence in the police and the public interest. We will set out in regulations the matters to be taken into account by the IPCC in making such a determination.
This will mean that disciplinary proceedings can be brought in relation to the most serious matters which are considered of an exceptional nature where serious and lasting harm has been caused to public confidence in policing as a result of the wrongdoing. As with the original provisions set out in Clause 28, the exceptional circumstances test will not operate retrospectively. As such, these provisions will apply only to those officers who are serving on or after the date that they come into force. Where there is a finding that the former officer would have been dismissed at a subsequent misconduct hearing, the individual will be barred from future service in police and other law-enforcement agencies.
Amendment 138 gives effect to these changes in respect of former police officers, Amendment 140 in respect of former special constables and Amendment 144 in respect of former MoD police officers. Amendments 139, 141 and 145 clarify that, in cases where the investigation or disciplinary proceedings concerning the former officer, special constable or member of the Ministry of Defence Police arise from a decision to reinvestigate a matter previously closed, this can lead to disciplinary proceedings only in cases which either meet the exceptional circumstances test or where the reinvestigation commences within the specified time limit. Amendments 160, 161 and 162 are consequential on the main amendments and the changes to the governance of the IPCC. They provide that, in future, these determinations will be made by the director general of the Office for Police Conduct.
Amendments 149, 150 and 151 clarify the operation of the police advisory list. The amendment makes it clear that the duty on chief officers and others to report officers to the College of Policing applies only in the case of officers who at the time of leaving the force are under active investigation. The amendments will mean that in circumstances where an officer was previously under investigation while serving but the investigation concluded with no disciplinary proceedings being brought and subsequently the officer leaves the force, the duty to report the officer to the college shall not apply. This eliminates potential ambiguity in the legislation and makes it clear that reports are required only when an individual is subject to an ongoing investigation.
Amendments 142 and 143, in the name of the noble Lord, Lord Rosser, are directed at the same end as the key government amendments in this group. I hope that, having heard my explanation of the government amendments, the noble Lord is satisfied that they deliver a similar outcome. I commend the government amendments to the Committee and I beg to move Amendment 138.
Lord Paddick
My Lords, we broadly welcome the government amendments in this group and, subject to what the noble Lord, Lord Kennedy of Southwark, has to say on the Labour amendments, they seem to cover similar ground.
I have some questions, but I agree with the Minister that the overwhelming majority of police officers are honest, decent people who want only to do their best to protect and serve the public. However, if an officer has left the service and, within 12 months, an investigation takes place which, if the officer was still serving, could have resulted in that officer being sacked, what sanctions would be available against such an officer, other than their name being added to the banned list?
I understand that “exceptional circumstances”, in terms of the most serious acts of wrongdoing, needs to be defined by an independent body. We will come later on in our considerations to talk about the Independent Police Complaints Commission and whether it is truly independent. It is slightly concerning that one criterion that the IPCC would have to look at, in deciding what action to take, is the impact on public trust and confidence in the police, because it could take the decision that the impact of exposing serious misconduct through an investigation would have such a detrimental impact on that trust and confidence that it would use it as a reason not to investigate rather than an obligation to do so. So we have to be very careful about the grounds on which the IPCC should or should not consider something to be exceptional wrongdoing.
Clearly, many members of the public will be very concerned, or disappointed, that the legislation will not be retrospective, particularly with regard to those involved in the aftermath of the Hillsborough disaster. The concern is not with the rank and file officers in that case; the concern is with what happened in the aftermath, and the leadership exercised at Hillsborough. However, as I say, we are generally supportive of the government amendments.
Lord Kennedy of Southwark
My Lords, first, I associate myself with the comments made by the Minister and by the noble Lord, Lord Paddick, in paying tribute to the police and how they conduct themselves. They are a fantastic group of people, who protect us every day, and we are very lucky to have them looking after us.
As we have heard, this section of the Bill concerns disciplinary proceedings against former police officers and former special constables, and the amendments in this group are to both the relevant clauses and schedules. Generally, I am content with the government amendments, and supportive of them. My noble friend Lord Rosser tabled Amendments 142 and 143 before the Government tabled their amendments, and we are very happy with what the Government have proposed.
I accept entirely the point that the noble Lord, Lord Paddick, made about “exceptional circumstances” being defined by an appropriate body. Could the Minister give us some idea what the Government’s thinking is on that matter? Having said that, I support the government amendments.
Lord Condon (CB)
My Lords, I apologise for not being here at the start of this grouping; I intended to speak but I was slightly delayed. I want to add my support to the Government, to the Opposition and to the noble Lord, Lord Paddick, for moving these amendments. It is vital for public confidence that there should be no sense that police officers, once retired, can somehow escape the consequences of actions that, in other circumstances, would have been dealt with by discipline. Certainly, as a former commissioner, I accept that until I draw my last breath I should be accountable for everything that I did during my time as a police officer. I say that with a clear conscience but, if there were any aspect that could have led to a criminal case or disciplinary case, I would of course want that to be tested and examined with the full rigour of the law or disciplinary process, and I would want the same to apply to other people who had retired.
My only reservation—it is not even really a reservation—is that, for more junior officers in particular, a line can never be drawn under their service and what they did as police officers, and they should be held accountable. I think that they and their relatives would take comfort—when looking at an incident that was, perhaps, 20 or 30 years old, where the law, public morality around an issue, or cultural issues may have changed—that there is some test that prevents vexatious or frivolous complaints from that earlier time being put into a process. I take enormous comfort that in, for example, Amendment 142 in the names of the noble Lords, Lord Rosser and Lord Paddick, there is a pretty high bar that the Secretary of State has to determine that investigating and, if appropriate, hearing a case is both necessary and proportionate. Those words will be of enormous comfort to the vast majority of retired police officers—men and women who have sometimes put their lives at risk serving the public. They would want to feel that their honourable service has been recognised. I wholeheartedly support the Bill, what is behind these amendments and the spirit of the amendments moved by the Opposition.
Lord Blair of Boughton
My Lords, I also apologise for not joining this particular part of the debate earlier. I absolutely agree with and amplify what my noble friend Lord Condon has said. Part of the difficulty for some of the most senior officers in the system, which my noble friend and I and the noble Lord, Lord Paddick, obviously are—we therefore have to declare interests to your Lordships—is that you end up during your period of service, particularly the period of top command, with cases that are headlines for years and which are investigated and investigated. It would mislead the House to say that my noble friend Lord Condon and I have not spoken about it—we have, although not in the Chamber. I urge those putting forward Amendment 142, the Government and the Opposition, to keep the words “necessary and proportionate” in mind, otherwise there is no end to some of these cases. This is a matter that our legislature needs to think about as it brings forward this kind of amendment. I agree absolutely with my noble friend, and I am sure that I speak for other noble Lords who have been senior police officers, that this is the right way forward.
Baroness Williams of Trafford
My Lords, I thank the noble Lords who have responded to both the government amendments and the other amendments. The noble Lord, Lord Paddick, talked about the ultimate sanction for someone who had retired. The ultimate sanction is that the officer is found to have committed gross misconduct at a public misconduct hearing, with the panel finding that the officer would have been dismissed, and, therefore, as a consequence, should be added to the police barred list. Inclusion on the police barred list would see the officer banned from any future service in policing and added to the published list for a period of five years. Perhaps the noble Lord was referring to a police officer in this situation who had retired anyway and had no intention of going back into the police. However, if I had served 40 years in an organisation, such a judgment would be a pretty awful outcome for my career. Therefore, although there would be no actual effect on the person’s life, the ultimate judgment of misconduct in public office would fulfil that purpose.
Lord Paddick
I am grateful to the noble Baroness for giving way but my understanding is that, in the past at least, it has been possible in exceptional circumstances for a disciplinary authority to reduce the pension, for example, of somebody who is dismissed or forced to resign from the police service. Will the noble Baroness write to me explaining whether that sort of sanction might be available?
Baroness Williams of Trafford
I will certainly write to the noble Lord. I can envisage such a situation where somebody was sanctioned before they retired. In fact, I have the answer—the cavalry arrived in the nick of time. The measure will not directly impact an officer’s pension. However, if criminal activity is identified following an investigation and the officer is convicted, it will be open to the force, as now, to apply for some of the officer’s pension to be forfeited.
The noble Lord, Lord Kennedy, was disappointed that the measure was not retrospective in circumstances such as Hillsborough. I think that most noble Lords would share that disappointment. However, we make laws in line with established principles. It is in line with established principles that new laws generally should not be retrospective. They will apply only to officers who are serving when the relevant provisions are commenced. These matters do not in any way affect criminal investigations and prosecutions which, as now, can be pursued at any stage. So, yes, it is disappointing, but it is in line with established practice.
The noble Lord, Lord Kennedy, asked about the exceptional circumstances. I repeat that the IPCC will have regard to the seriousness of the alleged misconduct, the inefficiency or the ineffectiveness, the impact of the allegation on public confidence in the police and the public interest. I thank the noble Lords, Lord Blair and Lord Condon, for making the very important point about the necessity and proportionality of these measures.
The period specified”
“(c) condition A, B or C is satisfied in relation to the person. (2BA) Condition A is that the person ceases to be a special constable after the allegation first comes to the attention of a person mentioned in subsection (2B)(a).(2BB) Condition B is that the person had ceased to be a special constable before the allegation first came to the attention of a person mentioned in subsection (2B)(a) but the period between the person having ceased to be a special constable and the allegation first coming to the attention of a person mentioned in subsection (2B)(a) does not exceed the period specified in regulations under this section.(2BC) Condition C is that—(a) the person had ceased to be a special constable before the allegation first came to the attention of a person mentioned in subsection (2B)(a),(b) the period between the person having ceased to be a special constable and the allegation first coming to the attention of a person mentioned in subsection (2B)(a) exceeds the period specified for the purposes of condition B, and(c) the alleged misconduct, inefficiency or ineffectiveness is such that, if proved, the person could have been dealt with by dismissal if the person had still been a special constable.(2BD) Regulations made by virtue of subsection (2B) as they apply in a case where condition C is satisfied in relation to a person must provide that disciplinary proceedings may be taken against the person in respect of the alleged misconduct, inefficiency or ineffectiveness only if the Independent Police Complaints Commission determines that taking such proceedings would be reasonable and proportionate having regard to—(a) the seriousness of the alleged misconduct, inefficiency or ineffectiveness,(b) the impact of the allegation on public confidence in the police, and(c) the public interest.(2BE) Regulations made by virtue of subsection (2B) may make provision about matters to be taken into account by the Independent Police Complaints Commission for the purposes of subsection (2BD)(a) to (c).”
The period specified”
“(c) condition A, B or C is satisfied in relation to the person. (1BA) Condition A is that the person ceases to be a member of the Ministry of Defence Police after the allegation first comes to the attention of a person mentioned in subsection (1B)(a).(1BB) Condition B is that the person had ceased to be a member of the Ministry of Defence Police before the allegation first came to the attention of a person mentioned in subsection (1B)(a) but the period between the person having ceased to be a member of the Ministry of Defence Police and the allegation first coming to the attention of a person mentioned in subsection (1B)(a) does not exceed the period specified in regulations under this section.(1BC) Condition C is that—(a) the person had ceased to be a member of the Ministry of Defence Police before the allegation first came to the attention of a person mentioned in subsection (1B)(a),(b) the period between the person having ceased to be a member of the Ministry of Defence Police and the allegation first coming to the attention of a person mentioned in subsection (1B)(a) exceeds the period specified for the purposes of condition B, and(c) the alleged misconduct, inefficiency or ineffectiveness is such that, if proved, the person could have been dealt with by dismissal if the person had still been a member of the Ministry of Defence Police.(1BD) Regulations made by virtue of subsection (1B) as they apply in a case where condition C is satisfied in relation to a person must provide that disciplinary proceedings may be taken against the person in respect of the alleged misconduct, inefficiency or ineffectiveness only if the Independent Police Complaints Commission determines that taking such proceedings would be reasonable and proportionate having regard to—(a) the seriousness of the alleged misconduct, inefficiency or ineffectiveness,(b) the impact of the allegation on public confidence in the police, and(c) the public interest.(1BE) Regulations made by virtue of subsection (1B) may make provision about matters to be taken into account by the Independent Police Complaints Commission for the purposes of subsection (1BD)(a) to (c).”
The period specified”
Baroness Hamwee
Baroness Hamwee (LD)
We also have Amendment 148 in this group and the Government have Amendment 147. These are not such big issues but are the sort of thing that we try to cover in Committee. Clause 29 addresses the police barred list and the police advisory list. Clause 29(6) states:
“The Secretary of State may by regulations … make provision that … corresponds or is similar to that made by Part 4A of the Police Act 1996”.
We are not at this point querying the Police Act or Part 4A of it, but rather the words “similar to”. I understand the need to make regulations which will correspond with something. That seems to follow naturally, although sometimes the Delegated Powers and Regulatory Reform Committee may comment on that. However, the power to make similar regulations seems potentially a wide provision and I am not sure what it means. I hope that the Minister will explain that in responding to Amendment 146, which is a probing amendment.
Government Amendment 147 seems one of the least contentious bits of today’s business. As regards Amendment 148, Schedule 8 contains a provision about the effect of including someone in the police barred list. Certain people are required to check the barred status of potential employees or appointees. The persons are listed as being,
“a chief officer of police; a local policing body; the chief inspector of constabulary; the Independent Police Complaints Commission”,
but also,
“a person specified in regulations”.
Again, there is rather wide scope in that latter provision which could have wide implications. Our Amendment 148 would provide for an affirmative resolution to be passed before the regulations were introduced. One is so pleased by little victories. I am delighted that the Minister has added her name to Amendment 148, which we will be very happy to move in due course. I beg to move Amendment 146.
Baroness Chisholm of Owlpen
My Lords, as the noble Baroness, Lady Hamwee, explained, this group of amendments responds to two issues raised by the Delegated Powers and Regulatory Reform Committee in its report on the Bill in respect of provisions in Clause 29 and Schedule 8, which provide for the creation of a new police barred list and a police advisory list to be held by the College of Policing.
The first issue raised by the Delegated Powers Committee related to the regulation-making power in Clause 29(6), which enables provision to be made which corresponds or is similar to that made by new Part 4A of the Police Act 1996 and which relates to a person who is or has been employed or appointed by a quasi-policing body. As the committee pointed out, certain aspects of the operation of the police barred and advisory lists will be determined by regulations made under new Part 4A of the 1996 Act and it will most likely be necessary, when exercising the power in Clause 29(6), also to make provision corresponding or similar to that contained in such regulations.
I am grateful to the Delegated Powers Committee for highlighting this gap in the regulation-making power in Clause 29(6), which Amendment 147 will address. The amendment will enable regulations made under Clause 29(6) to make provision that corresponds or is similar to that made by or under new Part 4A of the 1996 Act.
Baroness Hamwee
My Lords, I am indeed happy. The insertion of the words in Amendment 147 give the clause a completely different meaning. I beg leave to withdraw Amendment 146.
Lord Paddick
Lord Paddick
My Lords, in moving Amendment 147A, which is also in the name of my noble friend Lady Hamwee, I will speak to our other amendments in this group, Amendments 147B, 150A and 151A.
Schedule 8, which is to be inserted as part of Part 4A of the Police Act 1996, outlines the procedures with regard to the police barred list and a duty to report dismissals to the College of Policing, which is responsible for maintaining the list. Amendment 147A removes the requirement to report cases where a civilian police employee has been dismissed for reasons of efficiency or effectiveness. The amendment probes whether the barred list should be confined to wrongdoing such as dishonesty or the inappropriate use of violence rather than a person being deemed to be inefficient or ineffective.
Amendment 147B has a similar effect on the provisions in new Section 88A(6), which defines “dismissed”. As the noble Baroness, Lady Chisholm of Owlpen, just said, someone’s employment prospects could be fundamentally affected by being placed on the police barred list. Does she not think it slightly disproportionate to include people who are considered to be inefficient or ineffective on the barred list and thereby affect their employment prospects so fundamentally?
Amendment 150A has a similar effect on the requirement to report resignations and retirements in the face of an allegation of inefficiency or ineffectiveness. Amendment 151A allows someone reported as having resigned or retired in the face of an allegation to be able to appeal against the decision to report his resignation or retirement. I beg to move.
Baroness Chisholm of Owlpen
My Lords, I have listened carefully to the case put forward by the noble Lord, Lord Paddick, for these amendments. The Government are clear that the provisions on the police barred and advisory lists should apply to police officers and civilian staff equally where individuals have been dismissed or face allegations that could lead to their dismissal for reasons of serious misconduct, incompetence or unsatisfactory performance.
The provisions for civilian staff use the language of “conduct, efficiency or effectiveness” to mirror the language in Sections 50 and 51 of the Police Act 1996, under which regulations concerning discipline for police officers are made. This is a catch-all term to encompass all circumstances that could lead to a dismissal, through the processes related to performance and conduct. The barred list provisions are designed to protect against those who have been dismissed from policing being recruited to another force or policing body having been found to have fallen so far below the standards expected of those working in policing that they have been dismissed.
Amendments 147A and 150A would remove grounds of effectiveness from the relevant categories of dismissal that could lead to a civilian member of staff being added to the barred list. It is my view that “efficiency and effectiveness” are inextricably linked; therefore, to remove one of these factors would seriously undermine the ability of these mechanisms to capture individuals who have been dismissed or who are under ongoing investigation for matters of competence or performance.
Dismissal in these cases would arise only following a prescribed and lengthy process to establish that the individual’s performance or competency has fallen well below the standards expected on a consistent basis or relate to a matter so severe that dismissal is justified. For example, the Police (Performance) Regulations 2012 define gross incompetence for officers as,
“a serious inability or serious failure”,
to perform the duties to a satisfactory standard or level.
As drafted, these amendments would create a disparity in the way that civilian staff are treated compared to their counterparts holding the office of constable with regard to what would be captured by, and the effect of, these provisions. In the Government’s view it would not be desirable to make such a distinction and create such a different approach to the information and individuals that would be captured by the barred and advisory lists for civilian staff versus police officers.
Amendments 147B and 151A seek to create a new right of appeal, specifically with regard to inclusion on either the police advisory or barred list. This is neither necessary nor desirable. Our approach is clear: if an individual has been dismissed from policing, they should be added to the barred list to prevent them rejoining another force or policing body at a later stage. It is important to note that new Sections 88F and 88L of the Police Act 1996, as inserted by Schedule 8, already provide for removal from the barred list and the advisory list. There is an existing route for appeal against dismissal via the Police Appeal Tribunal or employment tribunal. As a result, in the circumstances that a decision to dismiss an individual is overturned, this will result in the individual being removed from the barred list. This is explicitly provided for by Schedule 8.
As we see greater flexibility in roles, functions and powers exercised by civilian staff, as designated under the powers set out in Clause 37, it is important that the police barred list provisions adequately capture individuals who have been dismissed from the police service. This flexibility and application of policing powers must, in the view of the Government, be accompanied by appropriate safeguards, protections and accountability.
The police advisory list provisions are in place to ensure that adequate information is captured where an individual leaves a force while investigatory or disciplinary proceedings are ongoing. This list does not represent a statutory bar but creates a framework for capturing this information for future policing employers to take into account as part of the vetting process. To add an appeal route to this process would therefore undermine the ability of police forces and policing organisations to adequately subject incoming candidates to vetting procedures and take account of the fact that a candidate may be subject to an ongoing investigation or disciplinary process.
As with the barred list, the advisory list provisions contain safeguards so that an individual will remain on this list only while proceedings are ongoing. Where it is determined that no disciplinary proceedings will be brought or are withdrawn, or where disciplinary proceedings conclude without there being a finding that the individual would have been dismissed, the individual’s name and details must be removed from the advisory list.
Ultimately, the right of appeal against inclusion on the advisory list exists within a misconduct hearing, where it will be determined whether the individual should be dismissed and so be added to the barred list. Where dismissal is not the outcome, they will be removed when the process concludes.
Given that explanation, I ask the noble Lord to withdraw his amendment.
Lord Paddick
I am grateful to the noble Baroness for her lengthy explanation of what the barred list and the advisory list are about. However, that is not what the amendments seek; the intention behind them is to suggest that it is disproportionate to include on the lists those who are accused of being inefficient or ineffective.
Although I accept some of the points that the noble Baroness has made, it just spurs us on to look at whether the amendments we have tabled for Committee need to be refined. As I mentioned in my opening remarks, bearing in mind what the Minister said about the impact that this provision might have on employment prospects—presumably generally and not re-employment in a police service—we question whether the inclusion of “efficiency or effectiveness” is over the top.
I understand the parallel with gross incompetency for police officers. I would be interested to hear whether, since its introduction, that provision has yet broken its duck in terms of a person having been dismissed for gross incompetency. More research is to be done and no doubt we will return to this issue at later stages of the Bill. However, at this stage, I beg leave to withdraw Amendment 147A.
“(1A) But the duty in subsection (1)(a) does not apply if, before the person resigns or retires, it is determined that no disciplinary proceedings will be brought against the person in respect of the allegation.”
“Appeals to Police Appeals Tribunals
(1) Schedule 6 to the Police Act 1996 (appeals to Police Appeals Tribunals) is amended as follows.(2) In paragraph 1 (appeal by a senior officer), in sub-paragraph (1), in the words before paragraph (a), for “Secretary of State” substitute “relevant person”.(3) In paragraph 2 (appeal by a member of a police force other than a senior officer or by a special constable), in sub-paragraph (1)—(a) in the words before paragraph (a), for “relevant local policing body” substitute “relevant person”;(b) omit paragraph (d);(c) at the end insert—“(e) one shall be a lay person.”(4) After paragraph 2 insert—“2A(1) For the purposes of paragraphs 1 and 2, “the relevant person” means the person determined in accordance with rules made by the Secretary of State._(2) Rules under sub-paragraph (1) may make—(a) different provision for different cases and circumstances;(b) provision for the relevant person to be able to delegate the power to appoint the members of a tribunal._(3) A statutory instrument containing rules under sub-paragraph (1) is subject to annulment in pursuance of a resolution of either House of Parliament.”(5) In paragraph 10 (interpretation)—(a) after paragraph (a) insert—“(aa) “lay person” means a person who is not, and has never been—(i) a member of a police force or a special constable,(ii) a member of the civilian staff of a police force, including the metropolitan police force, within the meaning of Part 1 of the Police Reform and Social Responsibility Act 2011 (see section 102(4) and (6) of that Act),(iii) a person employed by the Common Council of the City of London in its capacity as police authority who is under the direction and control of the Commissioner of Police for the City of London,(iv) a police and crime commissioner,(v) a member of staff of a police and crime commissioner, or of the Mayor’s Office for Policing and Crime, within the meaning of Part 1 of the Police Reform and Social Responsibility Act 2011 (see section 102(3) and (5) of that Act),(vi) a constable within the meaning of Part 1 of the Police and Fire Reform (Scotland) Act 2012 (2012 asp 8) (see section 99 of that Act),(vii) a member of the Police Service of Northern Ireland or the Police Service of Northern Ireland Reserve,(viii) a member of the British Transport Police Force or a special constable appointed under section 25 of the Railways and Transport Safety Act 2003,(ix) an employee of the British Transport Police Authority appointed under section 27 of the Railways and Transport Safety Act 2003,(x) a member of the Ministry of Defence Police,(xi) a person (other than a member of the Ministry of Defence Police) who is under the direction and control of the chief constable for the Ministry of Defence Police,(xii) a member of the Civil Nuclear Constabulary, or (xiii) an employee of the Civil Nuclear Police Authority appointed under paragraph 6 of Schedule 10 to the Energy Act 2004,”;(b) omit sub-paragraph (c).(6) In consequence of the other provision made by this section—(a) in the Criminal Justice and Immigration Act 2008, in Part 1 of Schedule 22, omit paragraph 11(6)(b);(b) in the Police Reform and Social Responsibility Act 2011, in Part 1 of Schedule 16, omit paragraph 47(2)(b).”
Baroness Chisholm of Owlpen
My Lords, Clause 30 is designed to implement two of the recommendations made by Major-General Chip Chapman in his review of the police disciplinary system. Major-General Chapman recommended that the system of police appeals tribunals should be made more transparent and independent by introducing a lay member to the panel. He also identified that enabling greater collaboration between forces would improve consistency of outcomes.
Clause 30, as currently drafted, provides flexibility for the Secretary of State to establish who can be selected to serve on police appeals tribunals and for setting out the administrative arrangements for these tribunals in rules. In its report on the Bill, the Delegated Powers and Regulatory Reform Committee argued that it was inappropriate to leave to secondary legislation the details of who would be eligible to serve on the tribunals.
The Government have accepted the Delegated Powers Committee’s recommendation on this point, and the government amendments in this group ensure that the individuals who may serve as panel members of a police appeals tribunal will, as now, be set out in primary legislation. However, it remains our intention to further strengthen the independence of police appeals tribunals by replacing the current retired police officer panel member—for panels hearing appeals by non-senior officers—with a lay person member, and the replacement Clause 30 amends Schedule 6 to the Police Act 1996 to this end.
The replacement clause, together with Amendment 172, defines a lay person for these purposes. In broad terms, it means any person who has not previously worked in policing, including as a police officer, as a member of the civilian staff of a police force or as a police volunteer. Amendment 232 makes a consequential change to the extent clause. Importantly, the introduction of lay members will bring a greater degree of independence to police appeal proceedings.
Lord Rosser
Lord Rosser
Clause 32 provides for the current Independent Police Complaints Commission to continue in existence but to be renamed the Office for Police Conduct. The effect of this group of amendments would be to retain the word “Independent” in the title of the renamed organisation. On the face of it, this may seem a somewhat minor point. However, it is not, as the name that is chosen for an organisation can significantly determine how it is perceived by those who come into contact with it and by the wider public.
The Independent Police Complaints Commission has had the word “Independent” in its title for, I believe, some 14 years, and it sends an important message: it is meant to be independent. Removing it from the new name of the organisation will also be regarded, by the public generally but particularly by those with whom it has specific dealings, as sending a message about its status, and it is a message that is unlikely to be helpful—namely, that it is no longer meant to be independent, including in its relationship with the police.
Currently, the word “Police” is in the title, but so too is “Independent”. In future, under the provisions of the Bill only the word “Police” will be seen in the title by those who need to deal with the renamed organisation. As it is, at times there is already an issue of some public mistrust over the perception of the police investigating the police, and the proposed name change will certainly not help in that regard.
What are we to make of the title, Office for Police Conduct? Would not the natural assumption be that this was some police body, part of the organisation, accountable to the organisation and certainly not separate and independent from the police service? How will that assist in establishing the trust or securing the confidence of those with whom the organisation comes into contact? Not all of them will necessarily at the time of that contact have the highest regard for the police—the obvious example being a bereaved family in the early days of an investigation by the current IPCC.
I hope that the Government will reflect seriously on this point and on the significance of the removal of the word “Independent” from the title of the renamed organisation, and will accept the amendment. I beg to move.
Lord Condon
My Lords, I support this amendment. For those who have monitored the police complaints process and helped advise complainants, the word “independent” has always had enormous significance. It is not a word of little value—it has huge significance for conveying the nature of the organisation that is carrying out complaints and overseeing complaints. I make no apology for reminding the House that I went on the record as commissioner to argue for a totally independent police complaints system. I put enormous value on the word “independent”, then and now, and I encourage the Government to think again on this issue.
Earl Attlee (Con)
My Lords, I have some sympathy with the amendment moved by the noble Lord, Lord Rosser, for precisely the reasons that he and the noble Lord, Lord Condon, outlined. On the other hand, we also have very important organisations that do not have the word “independent” in their title; for instance, Ofcom and Ofgem. So it is not unusual for organisations not to have the word “independent” in their title—but I hope that the Minister will consider the matter carefully.
Lord Condon
Would the noble Earl accept that, in the history of police complaints, more so than for “Of-anything”, the word “independent” has always had huge significance, and that there are many organisations, campaigners and individual long-time complainants for whom, in this context, “independent” is worth far more than in the context of a complaint against a gas company?
Earl Attlee
The noble Lord makes a very good point. I hope that the Minister will also remind us why we are changing the name at all. Legislation could be used to change the function, composition or governance of the body, but I would like to be reminded why we are changing the name at all. The general public are used to the term “IPCC” and they know what it does —and now we are changing it.
Lord Paddick
My Lords, I added my name to the three amendments in the name of the noble Lord, Lord Rosser. I entirely agree with the noble Lord, Lord Condon, and say to the noble Earl, Lord Attlee, that the IPCC has an uphill task because, necessarily, it has to rely to a large extent on former police officers as investigators. It does not do itself any favours by appointing, as it has done at least at some point in its history, a former staff officer to a Commissioner of the Met as its head of investigations—that hardly inspires confidence in those looking at it subjectively from the outside or conveys the message that it is completely independent.
Cynics might say that removing “Independent” from the title of the organisation is an outbreak of honesty in the Government. But that is not the direction that we should be moving in. This should not be seen simply as a cosmetic change; it needs to have some substance behind it. To call it the Office for Police Conduct, without “Independent” in there, is manna from heaven to those who want to criticise the new body as not being independent at all. For those reasons, I strongly support these amendments.
Lord Bach
My Lords, surely this is just a matter of common sense. Can we not cut through everything that has been said? I absolutely support what my noble friend Lord Rosser, and the noble Lords, Lord Condon, and Lord Paddick, have said—it is just a matter of common sense. Anyone who has been in government knows that sometimes Governments hold up the most obvious and common-sense approach for no apparent reason at all—we did it, and I fear this may be an example of the Minister’s Government doing it. It is quite clear that the word “independent” should be included. It would make it much clearer to the general public. Surely this is something that the noble Baroness can take away and consider, and perhaps come back and agree that it is just pure common sense.
Baroness Williams of Trafford
I thank the noble Lords who have spoken so clearly on this amendment, particularly the noble Lord, Lord Bach. I will outline why the Government want to change the name. The aim is to ensure that the organisation has a corporate structure and governance arrangements that enable it to carry out efficiently and effectively its expanded role in the police complaints and discipline systems.
My noble friend Lord Attlee pointed out that not every independent body has the word “independent” in its title—he mentioned Ofgem and Ofcom, and Ofsted is another example.
I understand that the body’s constitution alone does not guarantee public trust in its independence, but neither necessarily does incorporating the word “independent” in its title. That said, I understand the contrary argument, put forward by the noble Lords, Lord Rosser and Lord Condon, that adding the word “independent” to the name might change some people’s perceptions and encourage them to come forward if they have concerns about police conduct. Therefore, although I remain to be persuaded of the case for the amendments, I will reflect between now and Report on the points that noble Lords made so well in this short debate. On that basis, I invite the noble Lord to withdraw his amendment.
Lord Rosser
I thank the Minister for her response and thank all noble Lords who participated in this short debate. I note that the Minister, on behalf of the Government, is not committing herself to agree to the change, but she agreed to reflect on the matter and on what has been said this afternoon and perhaps come back to it on Report. I thank her for that and beg leave to withdraw the amendment.
Lord Rosser
Lord Rosser
The effect of these amendments is to give the director-general of the Office for Police Conduct a power to create regional directors, including a national director for Wales, and that as a minimum four of the regional director positions should be excluded from having a former police background, with a similar bar on the national director for Wales.
The Bill provides a specific bar on the director-general having previously worked for the police and creates a power for him or her to apply that bar to certain specified roles. Currently, all the IPCC’s commissioners—who are both its governing board and its senior public-facing decision-makers—can never have worked for the police. That has delivered a diverse group of people with senior experience in other fields in those roles to complement the policing experience of other staff and senior managers. As I understand it, the IPCC’s clear view is that this should continue to be the case for those who, like commissioners, are the public face of the organisation in the regions and its senior decision-makers. Obviously, the point of tabling the amendment is to seek the reasons for the decisions the Government appear to have made on this point and which are enshrined in the Bill.
Baroness Hamwee (LD)
My Lords, the underlying thinking here ties in quite closely with the debate on the previous group, and I am not sure that anyone said then that losing the word “Independent” from the title was particularly significant because of the very fact that it will be a change—more significant than if one was creating a new organisation and not having the word in its title from the start. That thought is part of the reason for our Amendment 158A in this group, which in fact the noble Lord, Lord Rosser, has explained to the Committee. It would also mark a change so that all the members of the body, if I can use a neutral term, could not be appointed from those who are—summarising around a third of a page—cops or ex-cops. That change would be a significant one, and again it is about the perception of independence as well as actual independence. We may hear that there are some practical reasons, or reasons of experience, that has caused the Government to move in this direction in their decisions on the structure and this part of the body’s governance, but I do not think that it is a good direction to go in.
As regards Amendments 157 and 158, in our view it would be wise to have a geographic spread, but if there is going to be a truly independent “Office”, it should be allowed to sort out its own arrangements, although anyone with any sense in the organisation would want to be sure that the regions of England, as well as the nation of Wales, are heard loudly and clearly.
Baroness Williams of Trafford
My Lords, the Bill provides for the existing commission to be replaced by a single executive head, the director-general, and for corporate governance to be provided by a unitary board with a majority of non-executives. These reforms address the recognised weaknesses of the existing commission model, under which most of the commissioners are engaged in operational activity and in the governance of the organisation. This has resulted in blurred lines of accountability. The commission itself recognises the need for change and there was clear support for the new director-general model in the response to the public consultation on the proposed reforms.
As the single executive head, the director-general will be accountable for the efficiency and effectiveness of the reformed organisation. That is why the legislation provides the director-general with the flexibility to determine the executive structure of the organisation, including the composition of his or her senior team. The director-general needs the freedom to shape the organisation in the way they see best to deliver high-quality, timely and independent investigations into police conduct, a point made by the noble Baroness, Lady Hamwee. Amendment 157 would tie the hands of the director-general as it would require the corporate structure of the Office for Police Conduct to include a minimum of four regional directors plus a national director for Wales.
The Government expect the Office for Police Conduct to have a regional presence, as the IPCC does, but as with the IPCC now and since its creation more than a decade ago, the Government do not see the need to legislate for a regional structure. A requirement for a specified minimum number of regional and national director posts would limit the director-general’s future flexibility to respond to the changing needs and circumstances of the organisation. In addition, this particular amendment would put regional directors on the board. That would undermine the core strengths of the new governance model and risk replicating the blurred lines of accountability within the existing commission structure.
I turn now to Amendments 158 and 158A, which relate to positions in the Office for Police Conduct that should not be open to those who have worked for the police. The Government recognise that public confidence in the independence of the organisation relies on certain key decision-making roles not being open to those with a police background. That is why there will be an absolute bar on the director-general from ever having worked for the police. We do not think that there should be statutory restrictions on those who are members of the office—in effect, the board of the reformed organisation. The core functions of the office are set out clearly in the Bill and include ensuring the good governance and financial management of the organisation. These functions are quite distinct from the functions of the director-general. The director-general, as the single executive head, will be solely accountable for all casework and investigation decisions, not the board. It is not right that a suitably qualified individual could not be appointed to a corporate governance role as a member of the board simply because he or she once worked as a police civilian, perhaps for just a short period many years previously.
With regard to employee roles, the Bill provides the director-general with an express power to designate functions and roles that are restricted, including senior operational and public-facing positions. The power means that the director-general will be able to ensure that the OPC has the right mix of staff, including those with valuable policing experience, while also having the power to place restrictions to help bolster public confidence in the OPC’s impartiality and independence. However, as I said, it is important that the director-general can secure public confidence in the work of the Office for Police Conduct. The Bill recognises the need for transparency in the director-general’s decision-making and places a requirement on the director-general to publish a statement of policy on the exercise of these particular powers of recruitment.
To conclude, we believe the provisions in the Bill strike the right balance by placing core aspects of the OPC’s governance in the legislation while ensuring that there is flexibility and transparency in appointments. On that note, I hope the noble Lords, Lord Rosser and Lord Paddick, and the noble Baroness, Lady Hamwee, are reassured of the Government’s intentions and that they will be content not to press their amendments.
Lord Rosser
Can I ask the Minister whether the Government accept that, under the Bill’s terms, as far as the public face of the organisation and its very senior decision-makers are concerned, we could end up with a situation where only one, namely the director-general, has not previously worked for the police?
Baroness Williams of Trafford
My Lords, I think what I outlined in my speech to noble Lords was that the director-general would need to outline how he proposes the board will work and his position in it. The Bill recognises the need for transparency, as the noble Lord pointed out. It places a requirement on the director-general to publish a statement of policy on the exercise of these particular powers of recruitment. I imagine that if he decided to have a board full of former police officers he would want to explain why, in his particular case, this was necessary.
Baroness Hamwee
Would the Minister accept that the bit the public will be aware of—like the change from an organisation with the term “independent” in its title—is the change from a board structure where there is a bar on all members of the board having been police officers or involved with the police service to a situation where there need not be, not the detail of the report of the director-general explaining the fine detail of their thinking? It is a much broader issue than the Government are acknowledging.
Lord Rosser
I thank noble Lords who have participated in the debate, and the Minister for her response setting out what the Government’s position is and the thinking behind the Government’s wording in the Bill. Issues have been highlighted in the debate about the potential implications and the extent to which one could end up in a situation where very few people indeed in the public face of the organisation and its senior decision-makers had not worked for the police, since the terms of the Bill do not preclude that happening. It precludes it only as far as the director-general is concerned.
Baroness Williams of Trafford
I profusely apologise for intervening, but I thought I would give the noble Lord the full information I have before me. There is a backstop power for the Secretary of State to set out in regulations restrictions on which posts can be held by former police. Perhaps that is a conversation to be had. It would be very unusual for the director-general to pack his or her board full of ex-police officers, but there is this backstop power for the Secretary of State. I apologise for intervening on the noble Lord.
Lord Rosser
Not at all. I am very grateful to the noble Baroness for that intervention, further clarifying the position as far as the Government are concerned. One might say that it is not entirely satisfactory that one would have to have a backstop power to prevent a situation arising where very few, if any, of those who are the public face of the organisation or its senior decision-makers are not people who have previously worked for the police. Some might feel that that should be better enshrined in the Bill itself.
Nevertheless, this short debate has highlighted quite an important issue. I hope the Government might be prepared to reflect on what has been said, and on the significance of the issue raised, in the context of the future role and perception of the Office for Police Conduct. In the meantime, I beg leave to withdraw the amendment.
Baroness Chisholm of Owlpen
My Lords, Amendments 159, 163 and 233 in this group are technical and consequential amendments arising from the changes to the IPCC’s governance arrangements that we have already debated. I can provide noble Lords with further details if required, but for now I beg to move.
“Investigatory Powers Act 2016
72A(1) The Investigatory Powers Act 2016 is amended as follows._(2) In section 59 (section 58: meaning of “excepted disclosure”), in subsection (4)(c)—(a) for “the Independent Police Complaints Commission” substitute “the Director General of the Office for Police Conduct”;(b) for “its functions” substitute “the Director General’s functions”._(3) In section 107 (power to issue warrants to law enforcement officers), in subsection (11)—(a) for “the chairman, or a deputy chairman, of the Independent Police Complaints Commission” substitute “the Director General of the Office for Police Conduct”;(b) omit “by the Commission”._(4) In section 108 (restriction on issue of warrants to certain law enforcement officers), in subsection (2), for paragraph (h) substitute— “(h) the Director General of the Office for Police Conduct;”._(5) In section 134 (section 133: meaning of “excepted disclosure”), in subsection (3)(b)—(a) for “the Independent Police Complaints Commission” substitute “the Director General of the Office for Police Conduct”;(b) for “its functions” substitute “the Director General’s functions”._(6) In Schedule 4 (relevant public authorities and designated senior officers), in Part 1—(a) omit the entry relating to the Independent Police Complaints Commission, and(b) after the entry relating to the Office of Communications insert—
“Office for Police Conduct | Director or an equivalent grade | All | (b) and (i)” |
“The Director General of the Office for Police Conduct. | A person falling within paragraph 6A(2) of Schedule 2 to the Police Reform Act 2002 who is designated by the Director General for the purpose.” |
Baroness Jolly
“Forces maintained otherwise than by local policing bodies
After section 26(3)(b) of the Police Reform Act 2002 (forces maintained otherwise than by local policing bodies) insert—“(c) the Royal Military Police;(d) the Royal Air Force Police; and(e) the Royal Navy Police.””
Baroness Jolly (LD)
My Lords, I will not detain the House long on this small but very important amendment. This is the first time I have spoken on the Bill. The interest is relatively niche and relates to the three service police forces and the 160,000 men and women who serve in our Armed Forces.
The aim of the amendment is to insert a clause that extends the remit of the IPCC to the service police forces. I am not alone in this desire. Her Majesty’s Inspectorate of Constabulary recommended that oversight of service police should be brought within the competence of the IPCC. In a report last year on the Royal Military Police, the Army’s investigative and policing branch, stated:
“There was insufficient public scrutiny of RMP investigations. The RMP does not report to the public, and investigations into RMP wrongdoing are carried out by an internal Professional Standards Department or the Provost Marshal of another service police force”
It added:
“The Provost Marshal acknowledged to HMIC that a strategic risk to the RMP is inadequate independent oversight of its own independence.”
Only last week, the RMP finally admitted to failings in a rape case in 2009, that of Anne-Marie Ellement, a member of the Royal Military Police, who claimed that two of her colleagues raped her. She took her own life in 2011. The MoD said, seven years after the rape case, that it was clear that mistakes were made and apologised to the family.
Had the IPPC’s remit covered service police forces there would have been another avenue to take the concern. This is a terrible case and I am sure the service police forces have taken a long hard look at themselves, but it is not the only case where they have been found wanting. Had there been the opportunity, an independent complaints commissioner could have intervened.
I feel sure that the Minister will refer to the chain of command—this is important to military discipline—and the fact that there is a Service Complaints Commissioner. There is, but the system was ineffective in this case. Our servicemen and women have rights and those rights are best upheld if this amendment is accepted.
I remind the Minister that in 2014, the Defence Select Committee called for a timescale to be set out to bring the service police under the auspices of the IPCC. Has such a timetable been agreed? If the answer is no, in the light of this week’s announcements, how much more likely it is that the MoD would review the situation?
Lack of accountability of the service police undermines the rule of law and makes it harder for them to undertake their function of policing by consent. This amendment gives the opportunity to bring the three police services into the same independent system of oversight as applies to the rest of us. If the Minister is not able to help this afternoon, will she agree to meet me to look at it further? I beg to move.
Lord Paddick
My Lords, I support the amendment in the name of my noble friend Lady Jolly and myself. My noble friend has made a very strong case, not just because it was Her Majesty’s Inspectorate of Constabulary’s recommendation that the three service police forces should come under the remit of the IPCC. Those responsible for the Royal Military Police have accepted that the organisation is at a strategic risk because it does not come under the remit of the IPCC. If the Government are not prepared to accept the amendment, it would be very interesting to hear from the Minister why not.
Lord Rosser
I will just add briefly to the comment made by the noble Lord, Lord Paddick, at the end of his speech. If the Government do not feel inclined to accept the amendment, there is a need—I am sure it will happen when the Government respond—to hear precisely what their reasons are for not going down that road. It has been said that no comparable body to the IPCC exists to deal with complaints about service police forces. A significant number of forces and agencies do fall within the jurisdiction of the IPCC, including, I understand, the Ministry of Defence Police. If the Government do not accept the amendment, like the noble Lord, Lord Paddick, I wait to listen with interest to their reasons why not.
Baroness Chisholm of Owlpen
As the noble Baroness, Lady Jolly, has explained, this amendment seeks to put the service police within the remit and jurisdiction of the Independent Police Complaints Commission.
We do, of course, support the need for independent oversight and scrutiny of the Royal Navy Police, the Royal Military Police, and the Royal Air Force Police, including the key objective of having an independent mechanism to investigate complaints against them. I am also aware that Her Majesty’s Inspectorate of Constabulary has recommended that the Government should consider further whether the IPCC could be the appropriate mechanism.
The Government have given early consideration to this, including discussions with the IPCC. To bring the service police under the remit of the IPCC is potentially a major change. Although only a small number of cases may be involved, it could mark a significant shift for the IPCC far beyond its current operations in England and Wales. As the chair of the IPCC has said,
“There are inherent and significant differences between the remit and jurisdiction of the service police and those of the Home Office Police forces”.
In addition, the IPCC is currently part way through a major programme of expansion to build its capacity and capability to investigate all serious and sensitive allegations against civilian police forces. This Bill will further strengthen the IPCC’s remit and powers and, in light of its expanded role, the Bill also provides for the reform of the organisation’s corporate structure and governance to deliver a more capable and resilient organisation.
At this stage, the IPCC’s capacity for further change to its role is constrained. That is why the Government, led by the Ministry of Defence, are seeking alternative options. Recent work with the Ministry of Defence has been focused on the development of a common complaints procedure across the three service police forces. This procedure covers complaints made by serving and non-serving military personnel against a member of the service police carrying out a policing function, irrespective of location. There is now also a protocol between the service police forces to ensure that, where there may be a conflict of interest around the investigation of a complaint, one service police force may investigate another. The next phase of the Ministry of Defence’s work is to consider how best to introduce a mechanism that will provide for the independent oversight of these complaints, wherever in the world they are made.
I hope that the noble Baroness will understand that, in the light of the work being taken forward by the Ministry of Defence, and the risks that could arise if we sought to impose new responsibilities on the IPCC at a time when it is already going through a substantial reform programme, I cannot commend this amendment to the Committee. I accept, however, that the noble Baroness wants to see more progress towards finding a long-term solution to this issue. I can certainly undertake to write to the Armed Forces Minister to draw his attention to this debate, but for now I ask the noble Baroness to withdraw her amendment. Of course, I am more than happy to meet the noble Baroness.
Baroness Jolly
I thank the Minister for her comments and my noble friend Lord Paddick, and the noble Lord, Lord Rosser, for their support. I understand that it would be a large change for the IPCC to undertake this extra work. I imagine that a certain amount of the capacity would go from one organisation to the other. One of the things I would like to understand is the timescale of all this, so perhaps when the Minister and I meet, this is the sort of area we could discuss.
Earl Attlee
My Lords, I am quite neutral, but obviously interested in this debate. The noble Baroness talked about a large increase in work for the IPCC or the successor organisation. In support of the noble Baroness, there are not that many service policemen and policewomen. It is not clear to me why it should generate a huge amount of extra work.
I have to say to the Minister, that she has not absolutely convinced me that there is the capacity in the service system to investigate really effectively a service police force when something goes wrong. However, I have to say I am still neutral.
Baroness Jolly
I have no comment on that one. I thank the noble Earl for his remarks and in the meantime beg leave to withdraw my amendment.
Lord Paddick
Lord Paddick
My Lords, Amendment 164A is in my name and that of my noble friend Lady Hamwee. I will also speak to the other amendment in the group, Amendment 164B. Clause 35 addresses the powers of inspectors—that is, Her Majesty’s Inspectorate of Constabulary—to obtain information, to secure access to police premises, and other matters by substituting paragraphs 6A and 6B in Schedule 4A to the Police Act 1996. New paragraph 6B talks about the powers of inspectors to obtain access to police premises and paragraph 6B(1)(a)(iii) talks about who can be served with a notice requiring them to allow access to premises, including,
“a person providing services, in pursuance of contractual arrangements (but without being employed by a chief officer of police of the police force or its local policing body)”.
The amendment deletes “but” and replaces it with “with or”, so it would cover a person who is employed by the police, as well as someone who is not. Amendment 164B makes a similar change to who can appeal against such a notice. I beg to move.
Baroness Williams of Trafford
My Lords, the amendment presumably aims to ensure that inspectors have comprehensive access to premises used for policing purposes, and that Her Majesty’s Inspectorate of Constabulary is able to inspect the totality of policing in a landscape where functions are increasingly delivered by multiple agencies. The noble Lord nods; I thought that was probably the aim. The Government wholeheartedly agree with that aim, which is the purpose of this Bill’s inspection provisions.
The amendment does not actually further that aim. The current wording already ensures that inspectors have access to any premises used in the delivery of policing functions, whether they are occupied by the force itself, the local policing body, another emergency service acting in collaboration with the force or a private company carrying out the activities of a force under a contract. I put it to the noble Lord that these amendments would not, in practice, extend the categories of premises to which an inspector had access. Any premises occupied for the purposes of a police force by persons employed under contract by the chief officer are already captured in these provisions. That being the case, I think the noble Lord would agree that the amendments were unnecessary. I invite him to withdraw the amendment.
Lord Paddick
I am grateful to the Minister for that explanation. Clearly the amendment is not designed to extend the category of premises that HMIC would be able to access. It is about extending the category of person upon which a notice could be served. It appears to us that the wording in the Bill is restrictive and needs to be broadened. We are trying to broaden the category of person on which the notice can be served.
Baroness Williams of Trafford
It might be helpful to the noble Lord to hear that this is covered by government Amendment 166, which ensures that any other person who is,
“by virtue of any enactment … carrying out the activities of”,
a police force is subject to inspection.
Lord Paddick
I am grateful for that second explanation and will consider it carefully. In the interim, I beg leave to withdraw the amendment.
“(g) any other person who is, by virtue of any enactment, carrying out any of the activities of a police force.”
“(d) any other persons if, or to the extent that, they are engaged by virtue of any enactment in carrying out the activities of the police force.”
Lord Kennedy of Southwark
Lord Kennedy of Southwark
My Lords, I will not detain the House very long with this amendment. Amendment 167A, in the name of my noble friend Lord Rosser, is a probing amendment. We tabled it to get on the record the thinking of the Government in this respect, and to raise our concerns. From these Benches, we are more content with the idea of employed staff being designated to use the weapons as outlined in new subsection (9B), but we have some reservations about the authorisation of volunteers to use them. I think the public would have some concerns about arming volunteers with CS and PAVA sprays. It may be seen as a step too far.
It would be useful if, when the noble Baroness responds to the debate, she could tell the House how many PCSO posts have been lost in the last six years. It appears on looking at this that it could be regarded as policing on the cheap: reduce the number of PCSOs in full-time employment and then get these volunteers and arm them with these weapons. Those are our concerns.
There is also a Clause 38 stand part debate in this group. We tabled that for the same reason: to get on record the Government’s thinking here and to outline our concerns at this stage. I beg to move.
Lord Paddick
I support the amendment tabled in the name of the noble Lord, Lord Rosser, and again express my concerns about this move to give police volunteers considerable powers, including authorising them to use incapacitant sprays. I share the concerns that the noble Lord, Lord Kennedy of Southwark, expressed in terms of public confidence in volunteers being given these weapons.
If somebody wants to volunteer to get involved in the use of force in the exercise of police powers, as would be the case in using incapacitant sprays, there is an avenue open to them: volunteer to become a special constable. They then have all the powers of a regular police officer, undergo extensive training and wear uniform almost indistinguishable from a regular police officer. As a consequence, there is no need for this Bill to give other volunteers the powers in this clause. If they want to help the police service by volunteering for other activities that do not involve the use of force, then of course it is open to them to do so, but in that case they would not need the powers that this clause would give volunteers.
Again, this adds complexity to what is already a complex policing family. There is already confusion among some members of the public about the different powers available to police community support officers compared with police constables; for example, at the scenes of road traffic accidents, where police community support officers have to stand at the side of the road and wait for a police officer to turn up to take control of any resulting traffic congestion because they do not have the power to direct traffic. Having volunteer community support officers would add a further level of complexity and confusion in the eyes of the public. Not only do we consider this clause unnecessary, but we feel that it could add to confusion and further undermine what the police service is trying to achieve in very difficult circumstances in the face of significant cuts to its budget.
Baroness Redfern (Con)
My Lords, I support the powers of police civilian staff and police volunteers, who deliver extra support and complement our police officers. In Lincolnshire two years ago the first VPCSOs were recruited as an extra uniformed visible presence in local communities, supporting the work of regular PCSOs in providing reassurance and support to local people. The word “extra” is important as these officers were designed not to replace existing provision but to supplement it.
The VPCSO role is varied but includes: giving advice and reassurance to victims and witnesses of crime; supporting policing operations by providing reassurance to members of the community; working with police officers, PCSOs and other police staff on policing priorities; and working within the local policing team on minor incidents, crime inquiries and anti-social behaviour, with a commitment to at least four hours a week on patrol in their local area.
The force has developed a role profile for VPCSOs with eligibility requirements that are the same as for PCSOs, such as minimum age, residency, skills and qualities, health, and vetting. Applicants undertake a selection process that includes an interview to test that their personal qualities meet those required in the role profile. Induction and initial training is undertaken over five weekends, followed by a further two weekends’ consolidation a few weeks later once they have gained some experience.
From a pilot stage to a valued part of visible policing in Lincolnshire, this has been pioneered and funded entirely by the PCC and chief constable and has offered an innovative way to supplement local policing while enhancing the range of opportunities available to local residents who wish to volunteer and contribute to their community. It is also a possible route to becoming a regular officer. The important changes in the Policing and Crime Bill to allow VPSCOs to have powers will improve the flexibility and efficacy of the role. Most importantly, these officers offer an extra uniformed, visible presence, thus addressing many, many residents’ requests and supporting our valued police officers.
Lord Harris of Haringey
My Lords, the contribution of the noble Baroness, Lady Redfern, emphasises the potential value of police volunteers and the role that she described. The difficulty is that we are debating several issues almost simultaneously—and she may almost have been anticipating the next group. The specific point that the amendment moved by my noble friend Lord Rosser relates to is the provision to enable those volunteers to use CS spray, PAVA spray and other specified weapons.
The concern that a number of us have, which is why it is important that we debate this and understand exactly what the implications are, is that this is a significant extra step. Having police volunteers who advise the public or patrol with a uniform in various areas to help create a visible presence, we can all understand and would value and welcome. The point at which you give them the power to use force against fellow citizens is actually an extremely significant change, and it raises all the issues about the level of training that they will receive.
The noble Baroness, Lady Redfern, talked about the training that is provided. Obviously, that is valuable, although I suspect that five weekends of training are probably what you need to learn all the other functions before you get on to what is essentially the power to use violence against other members of the public. There are issues around accountability and how all these things are managed. Before we take the step of saying that people who have volunteered and have had some training, albeit a comparatively small amount, can be allowed to use CS spray or other weapons against other citizens, we have to think about it extremely carefully.
Lord Condon
My Lords, I support the comments of the noble Lord, Lord Harris. I do not turn my mind totally against this provision but, from my experience, the way you equip people heavily influences how they think about what they are doing: their role and how they react. Like other noble Lords, my inclination at this stage, subject to reassurance from the Government, is that the cut-off point for incapacitant sprays should probably stay at special constable, where there is a level of training, supervision, scrutiny and public acceptance of their role that there is not for volunteers. Incapacitant sprays can and have killed. To equip a volunteer who may have good but relatively basic training with a spray that can kill a fellow member of the public is an enormous step and we need reassurance from the Government that it is absolutely necessary.
Lord Deben (Con)
My Lords, this has been a very useful discussion. I find myself slightly closer to the Government’s position than that of the noble Lord who spoke from the other side, but I have considerable sympathy with his argument.
There is a terribly difficult problem, which I hope my noble friend will address, of confusion about who these people are, who is in which category, and the like. I happen to have a close relative who sought to be a special constable and discovered that the difficulties of becoming a special constable are really quite considerable. I hope that my noble friend can help me by explaining that this is not a way of getting out of the difficulties of the one by producing something different, which would mean that we are not facing up to some really fundamental issues about how people become special constables and whether we are making it easy for people who would like to make this contribution.
What the debate has really raised are perfectly genuine concerns that this may not quite have been thought through in the way we would like it to be. As it is such a delicate issue, I hope it could be taken rather more widely than in the actual amendment, by thinking a bit about the way in which the public will understand the distinction between these categories. This bit of additional power given to people who decide to volunteer shines a light on the problem and on the confusion which I am not sure has actually been overcome in the debates that we have had so far.
Baroness Williams of Trafford
My Lords, I thank all noble Lords who have contributed to this debate. It is of course very difficult not to stray into other amendments when talking about something in the round. I thank my noble friend Lady Redfern for laying out her experience of using volunteer police officers in Lincolnshire. It must be one of the first areas in the country to do that, so it was very useful to have that information in the round. In thinking about my noble friend Lord Deben’s point about the importance of the public knowing the difference between a volunteer and a special police constable, or indeed a fully trained officer, I asked myself whether I wondered, when my children were at school, what the difference was between the teaching assistant and the fully trained teacher. In fact, as long as they both contributed to my child’s education, I was not that much bothered—but it may be an issue for some people and I recognise the point that my noble friend makes.
Amendment 167 returns to an issue that was debated at length in the House of Commons: namely, whether it is ever right for designated members of police staff, or the new category of designated volunteers, to carry these particular sprays for defensive purposes. The noble Lord, Lord Rosser, has also given notice that he intends to oppose the question that Clause 38 should stand part of the Bill.
I hope that I can assist the Committee by first explaining what Clause 38 seeks to achieve. It makes necessary consequential amendments to the Firearms Act 1968 to ensure that police volunteers come within the definition of “civilian officers” for the purposes of that Act. The effect of this is that they do not then need a firearms certificate or authorisation under either Section 1 or Section 5 of the 1968 Act in order to carry a defensive spray. The clause simply puts community support volunteers and policing support volunteers in the same position in relation to defensive sprays that police officers and police civilian staff are currently in.
Clause 37(6) makes it clear that police staff and volunteers cannot use other weapons within the meaning of the Firearms Act 1968 unless the Secretary of State makes regulations under new Section 38(9B)(b) of the Police Reform Act 2002. Any such regulations would be subject to the affirmative procedure.
Lord Paddick
To clarify what the noble Baroness has just said, could the Secretary of State, by regulations, authorise police volunteers to carry guns, if they were so minded?
Baroness Williams of Trafford
My Lords, I will repeat that Clause 37(6) makes it clear that police staff and volunteers cannot use other weapons within the meaning of the Firearms Act 1968 unless the Secretary of State makes regulations under new Section 38(9B)(b). Yes, it does read like that—but, as the law currently covers this, it is only trained police officers within London who can be armed.
Lord Paddick
Yes, but I think the Minister has just agreed with me that, through regulations, the Secretary of State could allow police volunteers to be given guns without the need for a firearms certificate. That is slightly worrying.
Baroness Williams of Trafford
My Lords, I am pretty much as certain as I ever can be about anything that it is not the intention of the Bill to allow volunteers to carry guns—but I suspect that I need to provide some further clarification, and hopefully I will do that.
Earl Attlee
My Lords, perhaps I can help my noble friend. It may be that the provision is to allow different types of, say, pepper spray, because the legislation itself is quite specific about which chemicals can be used. There may be future developments in chemicals, and I suspect that the provision in the Bill allows the Secretary of State to specify them. It would be helpful if my noble friend could constrain the Secretary of State by saying that they will never authorise civilian volunteers to have firearms—except perhaps to move them around in police premises.
Baroness Williams of Trafford
It is pretty much on the tip of my tongue to say that, but I think that noble Lords know exactly what the Government’s intentions are.
Lord Harris of Haringey
I think the Minister has unfortunately raised a large red herring, which will certainly prove to be one if she gets the clarification that she wants on it. However, although the intent may not be to allow this, the current wording suggests that it might be used in that way. The specific issue is that a very clear line is being crossed by saying that volunteers can be authorised to use sprays—pepper sprays or whatever else—and that is the distinction. Although the clause may or may not give the Secretary of State powers to increase the list—the Minister way be about to get the answer—or even to specify particular pepper sprays, the concern is about the use of the spray in the first place and whether it is right that a volunteer, despite not having gone through all the other training which is necessary, is able to do that.
Baroness Williams of Trafford
Yes, I totally take the noble Lord’s point, and I am hoping the clarification will arrive from my left in the next five minutes.
As we have made clear in our delegated powers memorandum, this is intended as a future-proofing provision to cover any self-defence equipment not yet invented—and I am not talking about guns. We are also taking the opportunity to make it explicit in the 1968 Act that special constables are members of a police force for the purposes of that Act, and therefore similarly do not require a certificate or authorisation under the 1968 Act when equipped with a defensive spray. This will avoid any doubt being created by the insertion of a specific reference to policing support and community support volunteers within the meaning of “Crown servant” in the Firearms Act.
I turn next to the various points that have been raised in relation to equipping staff.
Lord Deben
I did not quite understand the bit about things that have not yet been invented. The reason I did not understand is that I am not sure that I would be very happy about giving powers to give permission for the use of something that has not been invented, because I do not know whether what has not been invented would be something that I would like to give people the powers to use, if you see what I mean. This is a very dangerous route down which to go.
Earl Attlee
My noble friend does not need to worry about that at all, because it will be under the affirmative procedure, so Ministers will have to justify it. I have to say that future-proofing this seems to me to be a sensible thing to do, although on the other hand I slightly have sympathy for the speech of the noble Lord, Lord Harris of Haringey.
Lord Condon
Before the Minister finally sits down, I ask her to acknowledge and perhaps clarify this point. We are considering this very important crossover point from special constables being given these powers to volunteers having them in the context of what the Bill is also doing. It is enhancing the role of police and crime commissioners by giving them the ability to consider taking on the responsibility for fire and rescue services, and giving them the power to appoint the fire chief as the overall chief officer for policing and for fire. The Bill will create a model whereby, for example, a relatively young 32 year-old police and crime commissioner in an area can choose to appoint the fire chief as the overall chief officer of policing and fire in that area—admittedly, with the approval of the Secretary of State—and in that context a young, relatively inexperienced PCC with a chief officer who may not have a police background could take decisions on what volunteers could and could not do. The notion of them being given potentially lethal force is quite a big issue. I look forward to the Minister, as I am sure she will, giving us some reassurance about the notion of volunteers being able to have pepper sprays that in theory can kill people.
Lord Paddick
I do not want to prolong the agony, but another aspect of this is that members of the public should be reasonably sure about what level of force they are going to encounter from whom. As I say, special constables now are virtually indistinguishable from regular police officers; if a special constable decides to use a defensive spray, that will not come as a shock to the member of the public. In terms of the way that the member of the public interacts with a police officer or special constable, they may or may not use force against that individual on the basis of what they anticipate the reaction of that person to be, or the ability of the person to respond to it. When it comes to a volunteer police community support officer, who does all the wonderful things that the Minister said earlier, I think it is going to be a bit of a shock, and an unreasonable one, to expect such a volunteer to respond with an incapacitant spray.
Baroness Williams of Trafford
My Lords, may I perhaps make a bit of progress on what I was already outlining? Much of what I am going to say answers the questions that noble Lords are asking.
The argument has been put forward that issuing PCSOs with defensive equipment is somehow incompatible with those officers’ primary role, which is to engage with members of the public in their communities. If we examine the way in which different forces equip their PCSOs, we can see that there are different approaches. Some forces equip their PCSOs with body armour and some do not, and the same is true of handcuffs, yet all forces use their PCSOs as the key point of engagement with their local communities. I was one of the people who was very sceptical about PCSOs, but they now have a lot of respect in communities across the country. If the prevailing security situation were such that a particular chief officer considered it necessary to issue their PCSOs with defensive sprays—I emphasise to noble Lords that none has to date—the Government consider that they should be able to, subject of course to the test of suitability, capability and training already set out in the Police Reform Act 2002.
It has also been argued that it is impractical to train volunteers in the use of defensive sprays, to which our response has two limbs. First, if an officer or volunteer has not been properly trained in the use of any power, the law simply does not allow a chief officer to designate that officer or volunteer with the power in question. Section 38(4) of the Police Reform Act 2002, as amended by Clause 37 of the Bill, already states that a chief officer cannot designate the person with a power unless they are satisfied that they are both suitable and capable of exercising the power and that they have received adequate training in the exercise and performance of the powers and duties to be conferred.
However, we do not consider that it is impractical to train volunteers in the use of defensive sprays. On 31 March this year, there were over 16,000 special constables in the 43 police forces in England and Wales and the British Transport Police, all of whom have the full powers of a police officer, performed on a volunteer basis for at least 12 hours per month.
I was grateful to listen to the noble Lord, Lord Paddick, at Second Reading, on his strong support for members of the special constabulary, with whom he will definitely have worked during his career policing. As he said, special constables receive extensive training and have all the powers of a regular constable. Many of those specials patrol on a regular basis with their full-time colleagues and they carry identical equipment, including body armour, batons and defensive sprays—again, in exactly the way as their full-time colleagues. It is therefore patently not the case that it is impractical to train volunteers in the use of such equipment. Any volunteer who did not want to carry such a spray, could not undertake the training or was not suitable would not be designated by their chief to carry and use it, even if others in their force were so designated.
Lord Harris of Haringey
But we might drift off the point. Could the Minister clarify why, rather than encouraging more people to go through the special constable route where they take the affirmation about their role and everything else, the Government are suggesting instead that there be a volunteer category that would not be the same as special constables but would have exactly the same access to equipment?
Lord Paddick
On a very similar point, the Minister just said that while chief constables have the power to issue incapacitant spray to PCSOs, no chief constable has done so to date. Why do the Government now feel it necessary to give chief constables the power to give incapacitant spray to volunteer community support officers?
Baroness Williams of Trafford
It is simply to give chief officers the flexibility to use their workforce and their volunteer force to the best end in fighting crime and reassuring communities. The noble Lord, Lord Harris, asks why, for example, a volunteer cannot simply become a special constable. There are many reasons why you might want to be a volunteer rather than a special constable. We are focused today on the deployment of PAVA and CS spray, but actually a volunteer could be a police volunteer. They could be a retired accountant, for example, or a retired lawyer, and may want to bring their skills to the police but may not want to volunteer for any more than that, or indeed become a special constable.
Baroness Williams of Trafford
My Lords, I am talking about the powers that volunteers may have in the round. There may be myriad different powers, not just the one that we are focusing on.
The noble Lord, Lord Kennedy, talked about policing on the cheap. I remember that when PCSOs were introduced, I said, “Oh, it’s only policing on the cheap”, but actually I have seen the really good benefit that they have brought. As my noble friend Lady Redfern says, they are not a replacement for the police force but a really valuable extra on the streets of Lincolnshire, providing crime fighting for the police.
On that very lengthy note, and thanking all noble Lords for their interventions, I wonder if the noble Lord, Lord Kennedy, would like to withdraw his amendment.
Lord Kennedy of Southwark
My Lords, this has been an interesting debate—quite an extraordinary debate really, has it not? We talked about helpful PCSOs and the work they do helping communities; we got on to CS spray and other sprays. They may be issued with guns—we are not quite sure. We were then told that the Government also want to take a power in case things are invented in future. I am pleased I tabled the amendment: it has certainly dragged a few things out from the Government for us. I think we will have to come back to these issues on Report. I hope that the Government will look at our debate, because there are one or two loose ends hanging there.
The most important contribution came from the noble Lords, Lord Paddick and Lord Condon. Both of them have been very senior police officers, and if they are expressing concerns, the House should listen very carefully. It is important when we grant any new powers that we make sure that people are trained properly to use them. As we heard, these sprays can kill people, which is really serious. We must worry about putting anything in someone’s hands that can do that.
I also want to pay tribute to volunteer PCSOs, who do a fantastic job as the noble Baroness, Lady Redfern, outlined. I will leave it there, but I am sure we will come back to these issues on Report. I beg leave to withdraw the amendment.