Baroness Chisholm of Owlpen
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Wednesday 30th November 2016
(8 years, 1 month ago)
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Baroness Chisholm of Owlpen (Con)
My Lords, Amendment 1, moved by the noble Lord, Lord Paddick, seeks to limit the duty to collaborate so that police bodies would be required to collaborate with fire and rescue services only where they share coterminous boundaries. I see no reason why collaboration should be limited by geographical borders. The Government require there to be coterminous boundaries where a change of governance for fire is proposed, as the core approach of those provisions is to introduce greater democratic accountability by giving a directly elected individual responsibility for both services, with a clear mandate from the electorate in their area. However, collaboration between two bodies does not invoke such issues. Further, the duty, as currently drafted, would ensure that areas where the services are not coterminous, such as Devon and Cornwall, can still maximise the benefits outside a governance change if there is no appetite to adjust boundaries locally.
As the noble Lord, Lord Paddick, mentioned, existing examples of collaborative working between police forces show the benefits that closer working can provide, regardless of geographical proximity. For instance, Cheshire Police collaborates with Northamptonshire and Nottingham police forces on back-office functions, including payroll, accounting, purchasing and HR, via the Multi-Force Shared Service. West Midlands Police led the largest ever police and emergency service collaborative procurement exercise, which includes 26 territorial forces, two non-territorial forces and five fire and rescue services. Together, the services will buy 3,000 vehicles over the next two years, with forecasted savings of up to £7 million over the period of the contracts.
Government Amendments 2 and 3 respond to points raised in Committee by the noble Lord, Lord Rosser, the noble and learned Lord, Lord Hope of Craighead, and the noble Baroness, Lady Hamwee, in respect of collaboration agreements. Amendment 2 explicitly provides that no relevant emergency service will be required to enter into a collaboration agreement where it would have an adverse effect on public safety. This has been the Government’s policy intention since conception of the Bill. Indeed, as I set out in Committee, the Government believe that the impact on public safety will be assessed by an emergency service whenever considering the effect of a proposed collaboration on its efficiency or effectiveness. None the less, for the avoidance of any doubt, this amendment makes it explicit in the Bill that no relevant emergency service will be required to enter into a collaboration agreement that would negatively impact public safety.
Amendment 3 clarifies the process for varying a collaboration agreement. We agree that parties to an agreement should also be able to straightforwardly vary terms of an existing agreement, where all parties are in agreement. Parties will also still be able to replace an existing agreement with a new agreement, again with the consent of the parties concerned.
I hope that, having heard my explanation, the noble Lord will be content to support the government amendments in this group and withdraw Amendment 1.
Lord Paddick
In my opening remarks, I welcomed the government amendments and suggested that we would support them. The examples that the noble Baroness gave of collaboration between police forces were to do with requisition and back-office functions. The real issues arise where there is collaboration on operational issues—for example, the sharing of buildings, and particularly where the Government want to encourage police and crime commissioners to take over the running of fire and rescue authorities, as we will hear later this afternoon. That is where the coterminosity issue is most stark. Therefore, while I accept that for requisition and back-office functions the forces do not need to be geographically co-located, real problems can arise on the operational front in these circumstances, and if the PCC has to take over. However, I will consider carefully what the noble Baroness has said and, at this stage, beg leave to withdraw the amendment.
Baroness Chisholm of Owlpen
My Lords, Clause 7 enables police and crime commissioners to request to be represented on fire and rescue authorities within their police areas where they do not take responsibility for the governance of the fire and rescue service. This is what we have described as the representation model. Where a fire and rescue authority accepts such a request, we have set out that PCCs will be treated as if they were a member of the authority for the purposes of bringing agenda items, receiving papers and so on, and have full voting rights to ensure that they can take part in the business of the fire and rescue authority in a meaningful and effective way.
The noble Lord’s amendments seek to remove these provisions, which would be a great shame, as we want the PCC’s representation to be meaningful and on an equal footing with existing members of the FRA. To deny PCCs the ability to vote would reduce their scope for influence and I fear that opportunities for fostering greater collaboration would be missed. As my noble friend Lady Williams explained in Committee, in response to a group of similar amendments, we want police and crime commissioners and fire and rescue authorities to consider the representation model as a viable option for promoting greater collaboration between the two services. These amendments would hinder that.
The amendments would also remove the necessity for a fire and rescue authority to publish its decision and reasoning in considering the PCC’s request for membership. I am concerned that to do so would remove transparency and accountability from the process. These provisions enable PCCs to seek representation where they wish to do so, while respecting local fire governance arrangements. The final decision on representation rests with the fire and rescue authority, although we fully expect that in the majority of instances the fire and rescue authority would accept the PCC’s request and, if it did not, its reasons should be made clear to both the PCC and the public. This ensures that the process is fully transparent and open to effective scrutiny.
The provisions in the Bill allow for the representation model to be considered as an opportunity to foster greater collaboration outside of pursuing other governance models. I hope I have been able to persuade the noble Lord of the merits of the approach taken in the Bill and that he will be content to withdraw his amendment.
Lord Paddick
I am grateful to the Minister. I am still struggling to understand why a police and crime commissioner, who is elected on the basis of a manifesto to do with policing, should have full voting rights on a fire and rescue authority. I am not sure that “It would be a great shame” is a particularly powerful argument against my proposal. The Minister said that the police and crime commissioner should be on an equal footing with other members of the fire and rescue authority but did not actually say why. Yes, the final decision rests with the fire and rescue authority but, given the fact that this is in legislation, it would be difficult, certainly following the Minister’s remarks, for fire and rescue authorities to resist a move by a police and crime commissioner to take those voting rights. Greater collaboration surely does not necessarily depend on the police and crime commissioner having a vote on the fire and rescue authority. None the less, I beg leave to withdraw the amendment.
“Fire Safety inspections
(1) The Regulatory Reform (Fire Safety) Order 2005 (S.I. 2005/1541) is amended as follows.(2) In article 2 (interpretation), in the definition of “fire inspector”—(a) after “inspector”” insert “, in relation to Wales,”;(b) for “section 28” substitute “section 28(1)”.(3) In article 27 (powers of inspectors), after paragraph (4) insert—“(5) This article applies to a person authorised by the Secretary of State under article 25(1)(e) in relation to premises in England as it applies to an inspector; and article 32(2)(d) to (f), with the necessary modifications, applies accordingly.”(4) In article 28 (exercise on behalf of fire inspectors etc of their powers by officers of fire brigades)—(a) in paragraph (1)—(i) omit “, or any other person authorised by the Secretary of State under article 25(e),”;(ii) for “and (3)” substitute “to (4)”;(b) after paragraph (1) insert—“(1A) The powers conferred by article 27 on an authorised person (by virtue of paragraph (5) of that article) are also exercisable by an employee of a fire and rescue authority in England when authorised in writing by such an authorised person for the purpose of reporting to him or her on any matter falling within the authorised person’s functions under this Order; and articles 27(2) to (4) and 32(2)(d) to (f), with the necessary modifications, apply accordingly.”;(c) in paragraph (2), for “, or other person authorised by the Secretary of State,” substitute “or authorised person”;(d) after paragraph (2) insert—“(3) In this article, “authorised person” means a person authorised by the Secretary of State under article 25(1)(e) in relation to premises in England.””
Baroness Chisholm of Owlpen
My Lords, Amendments 44, 45 and 105 are essentially technical amendments to ensure that the strengthened powers of an inspector of Her Majesty’s Inspectorate of Constabulary and the powers of an inspector of fire and rescue authorities in England, as provided for in the Bill, work as intended.
Both inspectors have powers to obtain information and to access premises of the relevant organisation which they are inspecting and of persons providing services for that organisation. The amendments ensure that any person providing services or carrying out any of the activities of either organisation by virtue of an enactment, including where there is no contractual agreement, come within the inspection framework. This would, for example, cover police or ambulance staff who are undertaking fire functions as part of a local agreement—an approach which is growing across many police forces and fire and rescue authorities. These amendments will ensure that both police and English fire and rescue inspectors have sufficient powers covering all individuals who are fulfilling an activity which needs to be inspected. The powers to access premises and require information are long-standing and widely used, with established safeguards that will apply to these amendments.
Amendment 43 concerns the enforcement of fire safety in Crown-owned or Crown-occupied premises for the purpose of ensuring compliance with the Regulatory Reform (Fire Safety) Order 2005. Presently, the 2005 order defines an enforcement authority with reference to inspectors under Section 28 of the Fire and Rescue Services Act 2004. In the light of the fire inspection provisions in the Bill, it is now desirable to break the link between the inspection of fire and rescue authorities by an English inspector appointed under the amended Section 28 of the 2004 Act and enforcement of fire safety in Crown-owned and Crown-occupied premises under the 2005 order.
We do not consider it appropriate for those charged with responsibility for inspecting the efficiency and effectiveness of fire and rescue authorities in England under Section 28 of the 2004 Act, as amended, to have any powers in relation to enforcing fire safety provisions in Crown-owned or Crown-occupied premises for the purpose of ensuring compliance with the 2005 order. The skill set is entirely different, with fire safety enforcement officers requiring a high level of technical competence in building construction and fire safety management.
However, to deliver this objective we need to amend the 2005 order to ensure that any persons authorised, under Article 25(1)(e) of the 2005 order, by the Secretary of State to enforce the provisions of the 2005 order in Crown-owned and Crown-occupied premises are able to access the powers of enforcement that are necessary to enable them to perform their function effectively.
Without this amendment, any persons subsequently authorised to enforce the provisions in Crown-owned or Crown-occupied premises who were not also appointed as English fire inspectors or assistant inspectors would not, in law, be able to perform their function. I beg to move.
Baroness Chisholm of Owlpen
My Lords, the Government are committed to ensuring that those working for the police have the confidence to come forward to report concerns of malpractice and misconduct within the service. Clause 27 inserts new Part 2B and new Schedule 3A into the Police Reform Act 2002. This will provide the Independent Police Complaints Commission with a new power to carry out independent whistleblowing investigations. It gives police officers and staff a new route to raise their concerns directly with the IPCC. As a result, it will give police officers and staff a greater level of assurance around discretion and objectivity by strengthening the protections for whistleblowers, including anonymity.
Amendments 49 and 50 respond to points raised in Committee by the noble Lords, Lord Paddick and Lord Kennedy. The amendments will provide greater clarity about when a whistleblowing investigation can be considered by the IPCC. The amendments modify the definition of a whistleblower in two ways. The first modification is to enable whistleblowers to raise concerns about matters which occurred before they joined the police. The second modification will remove the need for the IPCC to consider whether to start a new whistleblowing investigation where it is already conducting an investigation under Part 2 of the Police Reform Act 2002, or where there is an ongoing whistleblowing investigation.
There will also be no requirement for the IPCC to consider whether to open a new investigation when the concern raised is already being dealt with as a super-complaint. These modifications will provide further clarity on the definition of a whistleblower, ensuring that the new Part 2B provisions will not interfere with the progress of these existing investigations. This will also support the IPCC to effectively implement its duties under the new provisions.
Amendments 51, 55, 63, 64 and 69 are technical amendments to ensure that, as with concerns which involve conduct matters, where the IPCC identifies a concern as relating to a “death or serious injury” matter as defined in Part 2 of the 2002 Act, the matter must be handled under that part. In such circumstances, the whistleblower’s identity will continue to be protected by modifications to Schedule 3 to the 2002 Act specified in regulations. I beg to move.
Lord Paddick
My Lords, I am very grateful to the Minister and to the Government for listening to the concerns we raised around whistleblowing in Committee. We certainly support the government amendments in this group.
“(3A) For the purposes of this Part, a person is a “whistle-blower” if—(a) the person is, or was at any time, under the direction and control of a chief officer of police,(b) the person raises a concern that is about a police force or a person serving with the police,(c) the matter to which the concern relates is not—(i) about the conditions of service of persons serving with the police, or(ii) a matter that is, or could be, the subject of a complaint by the person under Part 2, and (d) at the time the Commission first becomes aware of the concern, the matter to which it relates is not—(i) under investigation under the direction of the Commission in accordance with paragraph 18 of Schedule 3,(ii) under investigation by the Commission in accordance with paragraph 19 of that Schedule,(iii) being dealt with as a complaint under section 29A under regulations under section 29C (regulations about super-complaints), or(iv) under investigation under this Part.”
Baroness Chisholm of Owlpen
My Lords, I hope that this, too, will be good news for your Lordships. This Government’s policing reforms have strengthened the role of the Independent Police Complaints Commission to ensure that it can fulfil its crucial function as a strong police watchdog. The Bill will further enhance the IPCC’s powers and independence. It is important that the organisation can carry out its enhanced role efficiently and effectively and the Bill therefore also provides for the reform of the IPCC’s corporate structure and for it to be renamed the Office for Police Conduct.
In Committee the noble Lord, Lord Rosser, tabled an amendment to include “Independent” in the new name. A number of noble Lords spoke in support of that amendment, highlighting the value of the word in securing public confidence that the organisation is not part of the police. My noble friend Lady Williams of Trafford agreed to reflect on the points that noble Lords made so well in the debate.
The Government remain of the view that the reformed IPCC needs to command public trust, and demonstrate its impartiality and independence, through the quality of its work. The IPCC is independent, and the reformed organisation will continue to be independent. However, the Government also recognise the argument that although the legislation provides for the organisation’s independence from the police, it is important to signal this in its title as well. These amendments therefore provide for “Independent” to be included in the reformed IPCC’s new name, with the effect that it will be called the Independent Office for Police Conduct. I beg to move.
Baroness Jolly (LD)
My Lords, the purpose of this amendment is to enable service men and women to make complaints about their service police to the IPCC rather than to the service police—the Royal Military Police, the Royal Air Force Police or the Royal Navy Police. I submitted this amendment after a really interesting and valuable meeting that I had with the Minister and her officials, which helped my thinking and allows me to ask for clarification about the service police and the IPCC. I am grateful to her for her time.
The Minister and I discussed the issues of the competence, culture and trust of or in the service police and the capacity of the IPCC to take over some of its functions. I remind noble Lords that Her Majesty’s Inspectorate of Constabulary—HMIC—recommended that oversight of the Royal Military Police, the Royal Air Force Police and the Royal Navy Police should be brought within the competence of the IPCC. I understand that, at the moment, the IPCC is undergoing some change and is not able or willing to look at meeting the amendment’s desired outcome in the immediate future. I also understand that the service police are aware of their shortcomings and are working to address them.
Can the Minister give some indication of the Government’s current thinking about the future, and about which milestones might indicate progress? If there are any recent pronouncements from the MoD on this issue, that would also be helpful. Our service men and women deserve a process for complaints against their service police that is modern, run professionally, fit for purpose and future-proofed. I hope that the Minister can help, and I beg to move.
Baroness Chisholm of Owlpen
My Lords, I would like to reassure the noble Baroness, Lady Jolly, that the Government and the service police are fully supportive of the need for independent oversight of the service police. There is already statutory independent oversight of the complaints made against the service police, where those complaints are made through the service complaints process. That process is overseen by the independent Service Complaints Ombudsman and is available to all serving personnel. Veterans and other civilians are not able to use that process and rely solely on the service police complaints procedures, which do not currently have independent oversight. However, I should mention that, since the recommendation in Her Majesty’s Inspectorate of Constabulary’s 2014 report, the service police forces have adopted a tri-service investigations protocol, which supplements their existing complaints procedure and provides for another force to investigate certain complaints where there could be a conflict of interest or allegations of criminal activity.
There is clearly further work to do on a mechanism for introducing independent oversight into complaints made against the service police. There are a number of options for doing this, including oversight by an existing body or setting up a separate new body to provide it, but a number of logistical and jurisdictional issues need to be addressed. For example, incidents requiring investigation might arise in any part of the UK or indeed anywhere in the world, including dangerous operational theatres, and clearly we would want our oversight arrangements to cater for those occasions.
The Government are therefore considering interim arrangements that will introduce independent oversight of complaints against the service police from veterans and non-service personnel, this being the gap which currently exists. We expect to be able to announce further information about this shortly. The Government remain committed to implementing a single mechanism that will provide for the independent oversight of all complaints against the service police. This aspiration is shared by each of the service police provost marshals, and we intend to update the House on progress in the first half of next year.
On a broader note, I should mention that each of the service police forces has done much in recent years to forge a culture within its organisation that aims to promote faith in its integrity and professionalism within the Armed Forces, military community and beyond. They have each implemented codes of conduct that highlight the expectations placed upon service police personnel both on and off duty. These are akin to those produced by the College of Policing and support the single service’s values and standards and leadership codes, which apply to all service personnel. In addition, all members of the service police are now required to swear an oath which declares that they will always act with fairness, integrity, diligence and impartiality. The Government are determined to ensure that, in both the short term and the long term, there can be independent scrutiny of any instances where those values are called into question. On this basis, I ask the noble Baroness to withdraw her amendment.
Baroness Jolly
My Lords, I thank the Minister for the clarification and for the meeting. I look forward to recommendations coming out very soon, as she said. In the meantime, I am happy to beg leave to withdraw the amendment.
Lord Rosser
My Lords, I do not wish to repeat all that has been said, but I would like to raise one or two points. The first refers to the statistics on the use of Section 136 of the Mental Health Act in 2015 and 2016 to which the noble Baroness, Lady Walmsley, has already referred. They show some surprising discrepancies between police force areas on Section 136 cases. For example, Hertfordshire and Merseyside are the two police force areas in which there has been zero use of police cells under Section 136. However, in Lincolnshire, police cells were used under the Section 136 powers on 173 occasions during 2015-16, in the context of a total usage under Section 136 on just 368 occasions. That is a staggeringly high percentage. Equally, one could go through the whole list and point to considerable discrepancies. Surprisingly, although one might have thought that the figure for the Metropolitan Police would be pretty high, the number of occasions in 2015-16 on which people were placed in police cells under the powers in Section 136 was apparently 17, in the context of a total figure of 3,693.
I cannot understand why we have these discrepancies, and I would appreciate it if the Minister commented on that. Is it really about suitable places being available in these areas, or a lack of co-ordination or willpower, or a lack of priority being given to avoiding the need to use police cells? Some response from the Government on that point would be extremely helpful, and extremely interesting.
I want to refer to the letter of 25 November 2016 that the noble Baroness, Lady Chisholm of Owlpen, sent to the noble Baroness, Lady Walmsley, to which the latter has already referred. It would be helpful—to me, at least—to have some clarification of what parts of the letter mean. It states:
“It is … our intention that the regulations make clear that certain situations, in and of themselves, do not justify use of a police station, for example, because there is no health based place of safety available at that time. Our expectation, which will be reinforced in the guidance that will support the regulations, is that there should be local plans in place to deal with this and other contingencies”.
What does the reference to,
“local plans in place to deal with this and other contingencies”,
mean? Does that mean that places have to be provided, or something else? The letter continues:
“A police station will only be used as a place of safety if it is considered to be the best and safest way to manage a particular individual in the interests of all concerned”.
But what happens if no health-based place of safety is available at that time? Does the sentence I quoted mean that in that situation, if no such place of safety is available, a police cell can be used? Other references in the letter suggest that that would not be the case, and that, in effect, a police cell could be used only when the individual was considered to be a danger to themselves or to others. Again, it would be very helpful to have some clarification.
I may not have heard the noble Baroness, Lady Walmsley, properly—I am afraid I am all too good at that—but I thought, and I may be doing her a disservice, that she said that the Government had indicated that they intend to reduce to zero the use of police cells. If so, may I have confirmation of that, because I do not think the letter of 25 November 2016 says that? Of course, the statement:
“A police station will only be used as a place of safety if it is considered to be the best and safest way to manage a particular individual in the interests of all concerned”,
still leaves open the possibility of using a police cell, and would not be consistent with the Government’s intention, if it is their intention, in the long term—one hopes in rather less than the long term—to reduce to zero the use of police cells.
I would like to raise two or three other points related to treating people in a situation of mental health crisis. Clause 80 would reduce the permitted period of detention in any place of safety—not just police cells—from 72 hours to 24 hours. Of course, one could argue that 24 hours is still quite a lengthy period for individuals to be detained prior to an assessment of their mental health, wherever they are detained. The proposals do provide for a further 12-hour extension of that detention period. As has already been pointed out, individuals with urgent mental health needs have just as much right to acute and emergency health care as anyone else. If any other forms of emergency health care were provided within a window of only 24 to 36 hours, it would probably provoke some highly adverse comment. Did the Government consider bringing the time limit down further, to 12 hours, say, with the possibility of extending detention by up to a further 12 hours on the authority of, for example, the registered medical practitioner responsible for the person in question’s examination under the Mental Health Act?
I want also to refer to the position—or lack of it—of independent mental health advocates. As I understand it, subject to other powers in the Mental Health Act, they are available to provide independent advocacy and advice to individuals such as those liable to psychiatric detention, or those who have received community treatment orders. Among other important functions, independent mental health advocates help individuals to obtain information about their detention or treatment, and support them in understanding what is happening to them. But as I understand it, individuals detained under Sections 135 and 136 of the Mental Health Act do not have a right to an independent mental health advocate. Surely, detention in any place of safety is a feature of the mental health regime, and one in which independent advocacy, advice and assistance are desirable, if not required. Why is it that individuals convicted of no crime but detained for their own safety can have no access to the independent advocacy and assistance to which they would be entitled during other mental health interventions but not under Sections 135 and 136? A related point is that the PACE codes of practice lay down a requirement to have access to an appropriate adult, but on too many occasions, this does not happen as the code of practice indicates it should.
Finally, for the purposes of the police and criminal evidence arrangements, a police intervention under Sections 135 and 136 is treated as an arrest, and any police involvement in taking a person to a place of safety generates information held by police as to that person’s mental health history, including the recording of a police intervention by way of Sections 135 or 136. The Disclosure and Barring Service provides a system whereby an individual’s criminal record may be checked and, where relevant, disclosed to prospective employers. Ordinary DBS checks result in cautions and convictions being revealed, where permitted, but under enhanced DBS checks, other information held by the police as to their involvement with that individual may be disclosed as well, where the officer responsible reasonably believes it to be relevant and that it ought to be disclosed. Police will hold information as to any arrest they conduct and any involvement they have in taking a person to a place of safety under Section 135 or Section 136. The mere fact of police intervention in response to a person’s mental health crisis is therefore liable to be disclosed. It could therefore have quite significant adverse consequences when it comes to seeking employment.
I understand that since August last year new guidelines have been enforced, requiring constables to disclose as part of such checks only records they reasonably believe to be relevant. There is guidance given relating to Section 135 that indicates that the fact of detention under Sections 135(1) and 136 of the Mental Health Act is unlikely in itself to be sufficient to justify disclosure. Sections 135 and 136 provide the police with powers to remove a person to a place of safety when the person is believed to be suffering from a mental disorder and in need of care or control. Such a detention under the Mental Health Act does not constitute a criminal investigation and should therefore be treated with great caution when considering relevance for disclosure. But, of course, police officers are not mental health professionals. There is nothing to require them to seek the advice of such professionals before making a decision as to the relevance of a person’s mental health.
There is surely a real danger that the police will continue to disclose mental health records. Where a person is processed through the criminal justice system, information relevant to criminal matters may be disclosed as part of an enhanced EBS check. However, the disclosure of an individual’s medical history is an entirely different matter. Will the Government impose a ban on the disclosure of Sections 135 and 136 detentions under criminal records checks? I hope the response to the points I have raised, if not available tonight, might be available subsequently.
Baroness Chisholm of Owlpen
My Lords, I am grateful to the noble Baroness, Lady Walmsley, for giving your Lordships’ House a further opportunity to debate the continued use of police stations as places of safety for adults. I think we all agree on the importance of taking someone experiencing a mental health crisis to a place of safety that will best meet their particular needs. We can also agree that, almost always, that should not be a police station, irrespective of the person’s age. But where we have not previously quite agreed is on removing outright the option of using a police station for an adult in those very rare cases where it is the judgment of the police officer on the scene that a police station is the safest place—at least initially—not just for the patient but for the public, health professionals or anyone else at risk from the extreme behaviour of the individual.
Let me make it plain that while the Government’s position is that it would be wrong and potentially very dangerous to ban outright the use of police stations as places of safety for adults, we have no intention of leaving police officers without support in making the judgment that a particular situation is of such severity that this would be the correct response. The regulation-making powers in Clause 79 will be used to set out factors relevant to the decision on whether circumstances merit the use of a police station. We envisage that these will cover a range of issues, such as how dangerous an individual’s behaviour is and how serious a risk of harm to themselves or others they represent. We will also look to include provisions to give the officer the opportunity to consult with mental health professionals if it is safe and practicable to do so.
Equally importantly, if the decision is made to use a police station, we must make sure that the individual receives all the appropriate healthcare and treatment they need while they are there. This, too, will be covered in the planned regulations. The regulations will further provide for a regular review of the individual’s condition so that they can be moved to a more appropriate place of safety if the circumstances change—for example, if their behaviour has moderated and the move is in their best interest and can be achieved without delaying the mental health assessment.
I expect that, once these provisions come into force, we will see a further substantial reduction in the use of police stations as a place of safety for adults. But it would be wrong, in our view, to assume that we can reach a point over the next few years when we can say with absolute certainty that there will never be circumstances where the use of a police station as a place of safety for an adult is an appropriate option because their extreme behaviour cannot safely be managed in an alternative place of safety. That being the case, we do not believe that the proposed new clause is an appropriate way forward. However, I want to reach the position whereby police stations are used as a place of safety only in specific, “exceptional” circumstances —and, when they are used, the person taken there must be given the right medical care.
Lots of points were raised during the debate. The noble Lord, Lord Rosser, asked why there were discrepancies in the use of police cells across police forces. There is a range of reasons why this happens. It may include different policies on accepting violent behaviour, but it is also about the fact that, as the noble Lord pointed out, in London, for instance, they are not used as widely as they are in Lincolnshire, which has seen a high rise in the use of police cells. Often that is because Lincolnshire is more rural and there are not so many places of safety available, whereas there are more in London. So there are several reasons why that could be the case.
Baroness Chisholm of Owlpen
I was pointing that out as just one of the reasons why it might be—but we have to remember that, as we know, mental health is going through a huge change at the moment. As I said in a debate on Monday, I am afraid that we are going from a very low base. We have to be aware that it will take time for these places of safety to be there to ensure that we have an increased number of beds or places of safety for these people to be taken. That is part of the reason for the discrepancy.
To go back to further points raised on mental health, the noble Lord, Lord Rosser, raised an issue related to the respective changes to police powers under Sections 135 and 136 of the Mental Health Act. The noble Lord suggested that the maximum detention period should be reduced further to 12 hours. We are confident that the Bill reduces the maximum detention period by the appropriate amount—from 72 hours to 24 hours. The Government have seen evidence that the average assessment under Section 136 is conducted in under 11 hours. Furthermore, we fully support the target set by the Royal College of Psychiatrists for assessments to commence within three hours. However, there are some cases when it is not possible, due to the condition of the person detained, to conduct a meaningful assessment within 12 hours: for example, if they are intoxicated through alcohol or drugs.
The noble Lord also mentioned duties on police to consult with mental health professionals, with detainees having a right to an independent mental health advocate. The second issue concerned access to independent advice. Clause 78 requires police officers to seek advice from certain specific healthcare professionals, if practical, before making a decision to exercise their powers under Section 136. This is about supporting police officers to make the best possible decisions when they encounter a person who may be experiencing a mental crisis. This provision builds on existing good practice of police forces and local NHS services working together collaboratively, including through street triage schemes. The “if practical to do so” condition will avoid tying the hands of an officer if, in their judgment, they need to use the powers quickly to secure an individual’s safety.
On detainees’ access to advice, for example from a mental health advocate or an appropriate adult, the guidance supporting the implementation of these provisions will set out the expected support to be provided to any person detained at a place of safety under Section 135 or Section 136. Such support can, in our view, most appropriately be provided by health staff already present, rather than another person in a bespoke role, which would introduce delays and jeopardise professionals’ ability to conduct the assessment within 24 hours.
The noble Lord asked whether a person’s detention is disclosable if they subsequently apply for a disclosure and barring service check. In 2015 the Home Office published revised statutory guidance on enhanced DBS checks in relation to Section 135 and Section 136 detentions. The guidance now emphasises that the use of these powers in and of itself is unlikely to be sufficient to justify disclosure. The police are now directed to specifically factor in the behaviour of the detained person at the time, and how long they were detained. The Government’s position is that we cannot wholly rule out the possibility that there will continue to be circumstances in the future when a person’s behaviour is so extreme that it can safely be managed, at least initially, only in a police station. We are not legislating for some future point when that position will cease to be the case, which is what the amendment suggests.
I hope that, with all the things I have set out, and given our clear shared objective of doing what is in the best interests of all concerned, including their safety, I hope that the noble Baroness will be content to withdraw her amendment.
Baroness Walmsley
My Lords, I thank those who supported my amendment. I was fascinated by the treatise of the noble Lord, Lord Rosser, on other aspects of Sections 135 and Section 136. He is, of course, absolutely right that there is no correlation at all between the use of police cells and the rurality or urbanisation of the area concerned: absolutely none. I have always known that Merseyside is a very special place—because that is where I come from—but apparently in Merseyside there are no “exceptional circumstances”, whereas there are in other places. I cannot understand the Government’s determination to insist that there will be exceptional circumstances in other places if there are none in Hertfordshire and Merseyside.
It is quite clear that the Government are not going to move on this. However, I have to say that I welcome, of course, what the noble Baroness said about regulations. We will have to keep a very careful eye on how these work and whether they achieve our joint objective of bringing the numbers down as low as possible. I very much hope that that is exactly what will happen over the next few years. The hour being what it is, I beg leave to withdraw the amendment.