Policing and Crime Bill
Monday 19th December 2016
(7 years, 11 months ago)
Lords ChamberRead Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 84-I Marshalled list for Third Reading (PDF, 68KB) - (16 Dec 2016)
Lord Taylor of Holbeach (Con)
My Lords, I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Policing and Crime Bill, has consented to place her interests, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.
Clause 161: Requirement to state nationality
Amendment 1
Baroness Hamwee
Baroness Hamwee (LD)
My Lords, Amendments 1 and 2 deal with the same issue and are amendments to clauses requiring people to state their nationality when an immigration officer or constable suspects that an individual may not be a British citizen. Underlying our amendments is a concern that these powers may be exercised on the part of law enforcement officers in a discriminatory fashion. Suspecting that someone “may” not be British is a low hurdle.
At the previous stage, the Minister said that,
“it is already the case that officers may only ever act on reasonable grounds when exercising their powers”.—[Official Report, 12/12/16; col. 1012.]
That sounds all well and good, but if that is the case then why, in closely comparable provisions in Section 43 of the Immigration Act of this year, is there the formula:
“if the officer has reasonable grounds for believing”?
That formula is used in the case of requiring someone to provide a driving licence if he is suspected, or, as I say, if there are reasonable grounds for believing him to be not entitled to drive in the UK. Belief, as in the Immigration Act, is, as I understand it, in itself a higher hurdle than “suspicion”, but earlier this year it was considered that the formula which I have quoted was appropriate—both belief and reasonableness.
I was grateful for the support of the noble Lord, Lord Kennedy, during the previous stage. He made a substantive point about the term “reasonable”. Given the constraints of Third Reading, my amendments today are based on what might be called a technical point: that there is, as a matter of legal construction, a lower test to be applied under the Bill than under the Immigration Act. Two provisions which mean the same thing should be expressed in such a way as to indicate that. If they are expressed differently, there must be an implication—I hesitate to say this, given other noble Lords who are sitting around the Chamber—that they do not mean quite the same thing. To be told that we should base the point about reasonableness on what I think comes from the relevant PACE code does not, I am afraid, satisfy me. I probably took the Minister by surprise by making this point at the previous stage, but I hope that she may be able to answer the point, or better still to agree to the amendment.
This amendment also enables me to refer to a commitment given during the passage of the Immigration Bill, when we discussed the provision to which I have just referred. My noble friend Lord Paddick and the noble Baroness, Lady Lawrence of Clarendon, were very much involved with this issue and meetings were held with the then Minister, the noble Lord, Lord Bates. I think that he was as concerned at the possible misapplication of the provision as we were, and we had quite a long meeting to discuss it. He offered this in debate:
“I would … like to make sure, when the consultation document is published”,
on that provision and the piloting of it, “that we reconvene”, and that the noble Baroness and my noble friend should,
“meet with officials again … to get the noble Lord’s and the noble Baroness’s perspective on that. How the pilot scheme will be framed will also be looked at. Again, we would value the noble Lord’s and the noble Baroness’s perspective. We will make sure that that happens before they are brought forward and placed in the Library, and before the pilot commences”.—[Official Report, 15/3/16; col. 1772.]
At the last stage, we heard that the provisions under the Immigration Act on the production of drivers’ licences were to be piloted. It was not known at that time whether that would be a pilot in conjunction with the pilot which is provided for in this Bill. I hope the Minister can give us assurances about wide consultation, including about where the pilots should take place. She was able to tell the House that one pilot would be in Hampshire, which everyone to whom I have mentioned it has reacted by saying that it is not a very helpful place to show whether the provisions might be used in a discriminatory fashion. That is a substantive point and I hope the Minister can assist on it, but at this late stage of the Bill I base the amendments on the technical point of comparison with the Immigration Act. I beg to move.
Lord Kennedy of Southwark (Lab)
My Lords, as the noble Baroness, Lady Hamwee, said, these amendments were discussed on Report a few days ago. Amendments 1 and 2 add the world “reasonably” to this section of the Bill requiring someone to confirm their nationality. In that discussion, I made the point that in this section of the Bill the wording “without reasonable excuse” is used in respect of suspects in new Section 43B(1) and again in new Section 46C(1), and on that page there is also “for a reasonable cause”. That is different from the provisions for police and immigration officers. I asked the noble Baroness, Lady Chisholm, to write to me, and I think she was going to, but I have not yet had the letter. It is on its way. That is good to know. When she replies, I hope she will shed some light on why the Government do not need the same provision for both groups in this part of the Bill.
Baroness Chisholm of Owlpen (Con)
My Lords, these amendments again seek to provide in the Bill that a police or immigration officer exercising the powers in Clauses 161 and 162 to require a suspected foreign national to state their nationality and provide their nationality documents on request must act reasonably.
I am grateful for the opportunity to clarify the Government’s position. On Report, the noble Lord, Lord Kennedy, suggested that the drafting of these clauses seemed inconsistent, given that, on the one hand, there was no express requirement on an officer to exercise the powers reasonably but, on the other hand, the defence operated only where the accused had a reasonable excuse. There is no inconsistency here. The reasonable excuse defence is a necessary safeguard which allows a suspected foreign national to offer legitimate reasons to an officer and, if necessary, a court, for their non-compliance. This might include, for example, circumstances where a document may have been destroyed with reasonable cause—a scenario which is also catered for elsewhere in immigration legislation. The requirement for officers to act reasonably in the first instance is, in the Government’s view, a quite different point.
I acknowledge that there are some variations in the drafting of the large number of existing Acts which set out UK immigration law. It is also accepted that certain actions in the Immigration Act 2016 explicitly require those exercising coercive powers to act reasonably. However, it is not the case that, in the absence of an explicit reference to that effect, officers are able, through that omission, to act unreasonably. This language is not universally applied, or required, nor is it used elsewhere in legislation which deals with the seizure or retention of nationality documents.
In exercising the powers conferred by Clauses 161 and 162, police and immigration officers must act in accordance with public law principles, which include acting reasonably, or they may be challenged in the courts by means of judicial review. I also note that the wording of these clauses is consistent with that used elsewhere in immigration legislation—for example, Section 17 of the asylum and immigration Act 2004, which uses the same language for similar purposes. Section 17 deals with the retention of documents that come into the possession of the Secretary of State or an immigration officer in the course of exercising an immigration function.
Finally, I should add that operational guidance in respect of these new powers will make it clear to officers the circumstances under which these powers may be exercised. In the light of this further assurance that these powers may be exercised only when an officer has a reasonable suspicion that an arrested person may not be a British citizen, I hope that the noble Baroness will be content to withdraw her amendment.
However, I will just add a couple of things: of course we are very happy to continue to engage with the noble Baroness as our plans for pilots develop; she is also right that Hampshire was one of the places that was suggested for the pilot.
Lord Kennedy of Southwark
Before the noble Baroness sits down, did I hear her correctly say that these powers can be exercised only when an officer has a reasonable suspicion? If that is the case, then I do not see why it should not be in the Act and this amendment accepted.
Baroness Chisholm of Owlpen
We take the view that the police should always act in a reasonable way.
Baroness Hamwee
I think that encompasses our arguments.
With regard to the pilots, I am grateful for the noble Baroness’s assurances, but had there been consultation on the choice of Hampshire, she might have had some useful input.
I do not know whether the noble Baroness is in a position to tell us whether there is a distinction between an immigration officer or constable “suspecting” under these clauses in the Bill and an officer having “reasonable grounds for believing”. Are these different tests? It seems to me that suspecting and having reasonable grounds for believing are not the same, but I think she is telling us that they are. Does she have anything that she is able to add?
Baroness Chisholm of Owlpen
I am slightly muddled by what the noble Baroness is saying. Could she explain that a bit more?
Baroness Hamwee
I take the point that different formulae are used in different parts of immigration law, but the Immigration Act to which I have referred provides for an officer to have “reasonable grounds for believing” something, while under this Bill, he simply has to “suspect” something. “Reasonable grounds for believing” seems to me to be a much tougher test than simply suspecting. The noble Baroness may have something she can share with the House on that.
Baroness Chisholm of Owlpen
Suspecting and believing are slightly different words, obviously. Perhaps I had better write to the noble Baroness with more clarification.
Baroness Hamwee
My Lords, I wonder whether this is something that we can add to the discussion or consultation on the pilots. If one is going to pilot two provisions in the same place, carried out by the same officers and prompted no doubt by the same observations, it would be quite interesting to have them either able or not able to require documents from the same people, but not able to do so because in one case the ground applies and in the other it does not. I realise we are getting into very fine detail, but it will be very real detail in the application. It is not the noble Baroness’s fault, but I can see that we are not going to be able to make further progress on this today. I beg leave to withdraw the amendment.
“(4) The list of offences in subsection (3) is to be read as if it also included the corresponding service offences and, for that purpose, the corresponding service offences are—(a) an offence under an enactment set out in subsection (4A) which is such an offence by virtue of any of the enactments mentioned in subsection (3);(b) an offence under section 32 of 13 Chas. 2 c. 9 (1661) (An Act for the regulation and better government of the navy);(c) an offence under section 29 of 22 Geo. 2 c. 33 (1749) (An Act for amending and consolidating the laws relating to the navy);(d) an offence of sodomy mentioned in, and punishable under, section 38 of the Naval Discipline Act 1860, section 38 of the Naval Discipline Act 1861, section 41 of the Naval Discipline Act 1864 or section 45 of the Naval Discipline Act 1866.(4A) The enactments referred to in subsection (4)(a) are—(a) section 45 of the Naval Discipline Act 1866;(b) section 41 of the Army Act 1881;(c) section 41 of the Air Force Act 1917;(d) section 70 of the Army Act 1955;(e) section 70 of the Air Force Act 1955;(f) section 42 of the Naval Discipline Act 1957.”
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, I shall not keep the House long with these amendments. Noble Lords will recall that on Report my noble friend Lord Lexden questioned why the list of service disciplinary offences in what is now Clause 166 did not include all historic enactments criminalising buggery in the Armed Forces. I would like to thank my noble friend for bringing this matter to the Government’s attention. Having examined it further, we agree that the list of naval offences should reach back to the Navy Act 1661. I should stress that the various enactments cited in Amendments 3 to 6 include offences which would still be covered by the criminal law today, notably bestiality. Accordingly, it is important to emphasise again that these posthumous pardons would be granted to a person convicted of an offence only where their actions would not be illegal under current law.
We are aware that that there may be parallel offences that applied to Army personnel which predate the Army Act 1881. In the time available since Report we have not been able to identify all the relevant statutes, but we are continuing to research this issue. If there are further offences to be added to the list, we will explore the best means of achieving this.
The other amendments in this group are minor technical and consequential ones. I beg to move.
“(6A) The definition of “service disciplinary proceedings” in section 101(1) of the 2012 Act applies in accordance with subsection (6) with the modification that it also includes any proceedings (whether in England and Wales or elsewhere) under—(a) 13 Chas. 2 c. 9 (1661) (An Act for the regulation and better government of the navy),(b) 22 Geo. 2 c. 33 (1749) (An Act for amending and consolidating the laws relating to the navy), or(c) the Naval Discipline Act 1860, the Naval Discipline Act 1861 or the Naval Discipline Act 1864.”
“( ) The powers conferred on the Department of Justice in Northern Ireland by subsections (2), (4), (10) and (12) are exercisable by statutory rule for the purposes of the Statutory Rules (Northern Ireland) Order 1979 (S.I. 1979/ 1573 (N.I. 12)).”
Lord Rosser
“(1A) Material published under sub-paragraph (1)(d) must include— (a) copies of each document provided by the commissioner;(b) copies of each representation made for the purposes of sub-paragraph (1);(c) a summary of the views expressed to the commissioner for the purposes of sub-paragraph (1);(d) the commissioner’s response to those representations and views;(e) the commissioner’s representation of why the benefits of a proposal under paragraph 1 cannot be achieved by other forms of collaboration.(1B) The consultation period must last for at least 56 days.(1C) Before the start of the consultation period the commissioner must—(a) produce a draft public proposal for the purposes of paragraph 1;(b) schedule public meetings with reasonable publicity;(c) invite written submissions.”
Lord Rosser (Lab)
My Lords, Amendment 12 is in essence the same as our Amendments 12 and 14 on Report, which we withdrew in the light of the Minister’s response. In accordance with that response, I have since received a letter from the Minister that covers guidance on a PCC’s business case and consultation arrangements, and on the terms and conditions of fire personnel transferring to PCC fire and rescue authorities and to chief officers under the single-employer model.
My purpose in tabling this amendment at Third Reading is to ask the Minister to cover the content of her letter to me in her response today so that it is on the record in Hansard. The letter said that government Amendment 11 on Report meant that,
“the PCC would always be required to publish a response to their consultation, regardless of whether they have local agreement or not”,
and, crucially, that,
“the guidance will fully reflect the issues covered by your amendments 12 and 14”,
on Report, which are now reiterated in Amendment 12, which we are now discussing at Third Reading. The letter also said:
“Whilst this guidance will be owned and issued by APACE”—
the Association of Policing and Crime Chief Executives—
“Home Office officials are part of an advisory group that has been set up to steer the development of the guidance and are working closely with the authors to ensure that it reflects Government’s expectations”.
In other words, the guidance reflecting the Government’s expectations will fully reflect issues covered by our Amendments 12 and 14 on Report, which are repeated now in Amendment 12, which we are now discussing at Third Reading.
If the Minister can place on record in Hansard the key parts of the letter that she sent me following Report, then from my perspective that would achieve the purpose of this amendment. In particular, confirmation of the points that I have just made, and which are referred to in the letter, about the guidance fully reflecting the issues covered by my Amendments 12 and 14 on Report, and the fact that the guidance will reflect the Government’s expectations, would be extremely helpful.
Baroness Hamwee
My Lords, I am glad that the noble Lord has dealt with the matter as he has and has sought to have the points put on record. I wonder whether, in replying, the Minister can confirm that in paragraph 3(d), the requirement on the commissioner to publish,
“in such manner as the commissioner thinks appropriate”,
is consistent with the description that the noble Lord has just given—and that, within statute, one cannot think something “appropriate” without it also being “reasonable”.
Baroness Williams of Trafford
My Lords, the noble Lord, Lord Rosser, has explained his amendment and the reasoning behind it. I am very happy to repeat the assurances that I laid out in my letter so that they now appear in Hansard.
I recognise the important principles behind the amendment and I agree that it is imperative that PCCs afford sufficient time during the consultation process to allow people properly to express their views and to provide sufficient material for them to form a proper opinion. However, it would not be appropriate to prescribe how PCCs should go about their consultation in the Bill; nor would it be appropriate for the Home Office to issue guidance on such matters. PCCs are locally accountable, and it would not be appropriate for Whitehall to dictate matters or fetter local flexibility.
I hope that the noble Lord would therefore agree with me that the points he has raised are properly a matter for guidance rather than for primary legislation—I think that was clear from what he said. As I set out on Report, the circumstances of each local consultation will be different, so we should not unduly fetter local flexibility to put in place proportionate arrangements that recognise the nature of each local business case. The amendment, while well intentioned, risks cutting across the local accountability of PCCs and risks Whitehall dictating matters that should rightly be left to local leaders.
In response to the noble Lord’s important concerns, I can, however, be very clear about the Government’s expectation that the PCC’s consultation will be undertaken in an appropriate manner and of an appropriate duration to allow local people to express their views and for the PCC to have taken them into account. There is plenty of case law relating to consultations of the kind that PCCs will be undertaking on their local business cases, and to discharge their formal statutory duty, PCCs will need to have regard to proper principles of consultation. We would expect PCCs to secure local legal advice prior to commencing a local consultation to ensure that their plans comply with the legal requirements set down by existing case law. On the point made by the noble Baroness, Lady Hamwee, about consistency, I reiterate what I said privately: I think there is consistency.
To further strengthen the advice available to PCCs, we are also working with the Association of Policing and Crime Chief Executives to ensure that its practice guidance on fire governance business cases covers the points that the noble Lord has listed in his amendment today and his previous Amendments 12 and 14. This includes comprehensive guidance on the duty to consult, the manner in which consultation should be carried out, its duration, and what arrangements PCCs should make to publish their response to the consultation.
The Government expect the guidance to address the matters to be covered in the PCC’s business case. By its nature, this must set out the PCC’s assessment of why he or she considers that it would either be in the interests of economy, efficiency and effectiveness, or in the interests of public safety, for a Section 4A order to be made. If the PCC’s proposal is based on the first limb of this test, it would follow that the business case needs to address why other forms of collaboration, outside of a governance transfer, cannot deliver the same benefits in terms of improved economy, efficiency and effectiveness.
The guidance is currently being drafted by a working group that includes representations from fire and rescue authorities and the Local Government Association. The Association of Policing and Crime Chief Executives is aiming to publish the first version in January 2017, shortly after Royal Assent. The document will continue to be updated to reflect the lessons learned from the first PCCs to develop and consult on their proposals. As it will be sector guidance, it will not be subject to any parliamentary procedure but, as I have just explained, it will be in line with the Government’s expectations. I commit also to sharing a copy of the guidance once it is finalised.
I hope that in light of these further assurances the noble Lord will feel content to withdraw his amendment.
Lord Rosser
I thank the Minister for her reply. I take it from what she has said that the guidance will reflect the Government’s expectations, which are that the guidance will fully reflect the issues covered by our Amendments 12 and 14 on Report and our Amendment 12 at Third Reading. Will the Minister confirm that once again?
Baroness Williams of Trafford
I apologise for being slightly distracted by the last thing the noble Lord said, so could he repeat it?
Lord Rosser
I understand that the Minister confirmed, as stated in the letter that she sent to me, that the guidance will reflect the Government’s expectations and included in those expectations are that the guidance will fully reflect the issues covered by our Amendments 12 and 14 on Report and now repeated in Amendment 12, which we are discussing, at Third Reading. If the Minister will confirm that that is the correct interpretation, I would be very grateful.
Baroness Williams of Trafford
I did just say, but perhaps not very clearly, that it will be both in line with the Government’s expectations and with the points made in the noble Lord’s Amendments 12 and 14—now Amendment 12. I am happy to reissue that reassurance.
While I am on my feet I wonder whether the noble Lord will indulge me because there is one aspect in the points made by the noble Baroness, Lady Hamwee, on reasonableness that I did not address. PCCs would be expected to act reasonably when determining how to consult locally on their proposal and we would expect them to have regard to relevant case law and to practise the guidance issued by the Association of Policing and Crime Chief Executives. If there is a view that the PCC has acted unreasonably when determining what appropriate local arrangements should be, there would be an option to challenge the decision via the local consultation process or ultimately through legal challenge.
Lord Rosser
I thank the Minister for repeating that reassurance. We have taken this matter as far as we can, and in light of her reply, I beg leave to withdraw the amendment.
“( ) In paragraph 28ZA (recommendations by the Commission or a local policing body)(as inserted by this Act), in sub-paragraph (3)(b), after “submission” insert “or completion”.”
Lord Rosser
Lord Rosser
The House agreed to Amendment 157 on Report on the parity of funding at inquests, which does not appear to be covered by the existing Long Title. Accordingly, this amendment is to cover Amendment 157, and comes within the Third Reading principal purposes as tidying up the Bill. I trust the Government will feel able to accept the amendment in the light of the decision of this House on Amendment 157 on Report.
My name is also attached to Amendment 16 in this group. The noble Baroness, Lady Brinton, cannot be in the House today, but the House agreed to Amendments 188 to 193 on Report on support for victims and victims’ rights, which do not appear to be covered by the existing Long Title. Once again, this amendment to the Long Title is to cover Amendments 188 to 193 and comes within the Third Reading principal purposes as tidying up the Bill. I trust that the Government will feel able to accept the amendment in the light of the House’s decision on those amendments on Report. I beg to move.
Baroness Royall of Blaisdon (Lab)
My Lords, Amendment 15 is a tidying amendment to the Long Title and consequential to stalking offences. When I moved the amendment that was adopted by this House last week, I regret that I was not aware that it was encompassed by the Long Title, so I apologise for any inconvenience caused. I take this opportunity to say that I very much hope that the Prime Minister will look at this amendment. She has been terrific on violence against women and girls and, if she had a look at it personally, she might agree to accept it.
Baroness Chisholm of Owlpen
My Lords, as these amendments are purely consequential on various non-government amendments added to the Bill on Report, the Government will not oppose them. We are reflecting on the debates on the amendments put forward on Report by the noble Lord, Lord Rosser, and the noble Baronesses, Lady Royall and Lady Brinton, and we will set out our position when those amendments are considered by the House of Commons on 10 January.
Lord Rosser
Baroness Williams of Trafford
In moving that the Bill do now pass, I shall not detain the House for long. I have felt the Bill to be a very constructive process, and in particular I thank the noble Lords, Lord Rosser, Lord Kennedy and Lord Paddick, and the noble Baroness, Lady Hamwee, as well as the genius of the noble Lord, Lord Pannick. If I ever need representation, I know where to go, as long as I have a lot of money! I particularly thank the officials, because they are not just from the Home Office; there are officials on the Bill from the Department for Transport, the Department for Culture, Media and Sport and the Ministries of Justice and Defence and the Department of Health. Last but not least, I thank my noble friend Lady Chisholm, without whom I could not have got through the Bill in such a cheerful manner. She has kept me upright sometimes late into the night and has worked so seamlessly with me. It has been an absolute joy. I wish her well. I know that she is not retiring—she is just taking life a bit more sensibly—but I shall desperately miss her by my side in the next Bill that I do.
Lord Rosser
I shall be very brief, but I take this opportunity to thank the Minister and the noble Baroness, Lady Chisholm of Owlpen, for the courteous and open way in which they have listened to and sought to address, within government policy constraints, the issues raised during the passage of the Bill. I seem to have received a deluge of letters, for which I am genuinely very grateful, but it rather tests the statement that somebody, somewhere is waiting for a letter—that may no longer be the case in this instance. Actually, the number of letters that we have received in the light of the debates that have taken place is a reflection that the issues have been raised, considered and responded to, and I am very grateful for that. I thank the members of the Bill team for their help. I also thank all my noble friends, especially my noble friend Lord Kennedy of Southwark, and other Members of this House who have contributed to the debates. We too wish the noble Baroness, Lady Chisholm of Owlpen, a very successful time, presumably on the Back Benches, from where I am sure she will continue to make her views known.
Lord Paddick (LD)
My Lords, I too thank the noble Baronesses—the Ministers—for the way in which they have conducted proceedings on the Bill, and the members of the Bill team for the help and co-operation that we have received from them. My next offer of thanks is rather controversial and probably not in accordance with protocol but I also thank the noble Lords, Lord Rosser and Lord Kennedy, for the way in which we have discussed matters, which has helped the Bill’s passage