Policing and Crime Bill
Baroness Hamwee ExcerptsWednesday 2nd November 2016
(8 years ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 55-III(a) Amendments for Committee, supplementary to the third marshalled list (PDF, 64KB) - (1 Nov 2016)
Baroness Hamwee
Baroness Hamwee (LD)
My Lords, I hope that this amendment can be dealt with very quickly. It takes us to the provisions for live links with people in detention and, in particular, the definition of a “vulnerable adult”. When I read the definition, I was unsure whether the phrase,
“may have difficulty understanding the purpose of an authorisation”,
extended to understanding its implications or outcome. It seemed to me that the word “understanding” was rather narrow.
I was asked yesterday by the Bill team whether I could explain what I was getting at. Once I had a look at the drafting, I realised that I had put the words in the wrong place, and I apologise to the Committee for that. However, I was assured that the wording in the Bill extends to understanding the implications or outcome of a decision, and I am moving the amendment simply in the hope that the Minister can confirm that from the Dispatch Box. I beg to move.
Baroness Williams of Trafford
I thank the noble Baroness for her comments. Amendment 188A would amend Clause 73 to alter the definition of a “vulnerable adult” in new Section 45ZA of the Police and Criminal Evidence Act 1984. That new section would enable a superintendent to authorise the extension of pre-charge detention using a live link, rather than being physically present in the police station. In the case of a vulnerable adult, consent to the use of a live link must be given in the presence of an appropriate adult, and the amendment seeks to alter the definition of a vulnerable adult for those purposes.
I understand that the noble Baroness is seeking an assurance that the definition provided for in the Bill would include a person who had difficulty understanding the implications or outcome of a decision by a superintendent to authorise the extension of pre-charge detention from 24 to 36 hours. I am happy to provide such an assurance and, on that basis, I hope that she will be happy to withdraw her amendment.
Baroness Hamwee
My Lords, my name is on the amendments in this group. My noble friend mentioned the importance of ensuring parity between physical and mental health services, and we will continue to raise that until parity is achieved. She also mentioned stereotyped assumptions as to links between mental health and criminal offending and racial stigma in mental health matters.
It occurs to me that the arrangements for using police stations as a “place of safety”—like others, I put that term in quotation marks—must be very difficult for police officers. They are not health professionals who can deal with physical health problems or mental health problems. We should not expect them to respond to a situation for which, however well intentioned, they are not qualified.
My noble friend also mentioned the question of funding. Inevitably, the reliance on increasingly stretched local authorities is an issue. Given that a place of safety includes residential accommodation provided by local social services, we need to recognise the importance of local authorities’ funding for new places of safety. The Government’s investment in that is a positive step. As with so many issues, this is not something that can be put in one pigeonhole and left there.
Lord Bradley (Lab)
My Lords, this group of amendments addresses the crucial relationship between mental health and the criminal justice system. I make it clear at the outset that I support the objective of banning the use of police cells as a place of safety for adults. My comments are in the context of my own independent report published in 2009, which reviewed people with mental health problems and learning disabilities in the criminal justice system.
In the report I made over 80 recommendations for change, at least two of which are relevant to this debate. First, I recommended the establishment of multidisciplinary liaison and diversion teams composed of people with a variety of skills, including psychiatric nurses, learning disability nurses, drug and alcohol workers and many others, all working alongside the police in police stations to identify and assess vulnerable people and to support the custody staff at the first point of contact with the criminal justice system. This programme is being rolled out nationally. Currently, 55% of the country is covered. Additional money from the Treasury was allocated in July of this year to enable 75% of the country to be covered by 2018-19, with a view to 100% coverage by 2020-21.
Alongside this, and now properly integrated with liaison and diversion teams, is street triage. That is where the police and NHS staff work together in their local communities. It works best where there is a dedicated vehicle and they sit together, often with their separate laptops—we hope to link technology at some point—so that they can immediately assess the needs of vulnerable persons and stop them hitting against the criminal justice system. These are often the people who may be sectioned under Section 136 of the Mental Health Act, and this is where the second recommendation in my report is relevant today. I said then that, “All partner organisations”—by which I meant principally the police and the NHS,
“involved in the use of Section 136 of the Mental Health Act 2007 should work together to develop an agreed protocol on its use. Discussions should immediately commence to identify suitable local mental health facilities as the place of safety, ensuring that the police station is no longer used for this purpose”.
The recommendation was accepted by the then Labour Government and each subsequent Government—we are on to the fourth now—have committed to this objective.
Baroness Walmsley
My Lords, the amendment would ensure that people are really only detained under the Mental Health Act for up to 24 hours. To achieve that, the clock needs to start when the decision is made to detain someone and not when they arrive at the place of safety. If the Government want people to be detained only for up to 24 hours, Amendment 192 is needed. This is the only way to ensure that we are not detaining people for longer than 24 hours during what is often a distressing and alienating experience for people in crisis. They may be detained on the street in one of the special vehicles that have been mentioned or in another public place. They may be kept in a police car until a suitable destination is found. Wherever it is, distress will ensue for the person concerned.
We need to look at the position in parallel with that of a person with a physical illness who calls an ambulance. When ambulance services are assessed, the clock starts ticking from the moment the ambulance is called and not from the moment the patient is picked up. This is a matter of parity between physical and mental health.
When discussing these parts of the Bill, it is crucial that we remember that people detained under the Mental Health Act have not committed any crime. They are unwell and require health support. That is why I beg to move.
Baroness Hamwee
My Lords, I support the amendment. From the point of view of the person detained the detention starts at the point described by my noble friend Lady Walmsley. It is not a question of that being some sort of limbo; that must be how it feels. If a person is on the way to a place of safety, they are being detained, held and controlled as much as they would be when they reached their destination.
Viscount Hailsham
My Lords, I have great sympathy with the points just made. The clock should start ticking when a person is taken into custody and not when he or she arrives at the place of safety.
Baroness Hamwee
My Lords, I am a member of the Joint Committee on Human Rights and my name is on the amendment. I will make two points. First, the Government’s argument is that using the term “appropriate adult” causes some sort of stigma. I cannot speak for the committee or my noble friend whose amendment it is, but you can call that person what you like—it is the job that needs to be done, and that is what the amendment is driving at. Secondly, I wish to draw attention to the provision of subsection (1) of the proposed new clause, which is,
“the right to have access”.
Rights should be in legislation.
Baroness Walmsley
I agree with my noble friend on that point and on all the points she made. I thank the Minister for her comments, which I will of course consider between now and Report. I do not agree with her that the person formally doing the mental health assessment can be regarded as the appropriate adult, for the reason that I gave in my opening remarks; that is, that person is in control of what happens next to the person being assessed. It is important that the person has a right—they may not choose to use it—to consult somebody else about whether that is the right thing for them and how they feel about it.
Of course, the Minister is right that the number of people detained in police stations in these circumstances is going down very rapidly. If my Amendment 189 was accepted, it would become zero very quickly. In those few cases—many fewer now—where a person is in that situation, I still think that they should have a right to choose if they feel the need to have somebody else there to advise them. However, this is Committee so I will withdraw the amendment.
Immigration: Detention of Pregnant Women
Baroness Hamwee Excerpts(8 years ago)
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Baroness Hamwee (LD)
My Lords, I, too, thank the noble Baroness for raising the subject and the House of Lords Library for its briefings, which are wonderful. I hope I do not lose this one because it has so many helpful references in it. Like the noble Lord and the noble Baroness, Lady Lister, I, too, was a member of the All-Party Inquiry into Immigration Detention. Before I start my rant, I want to say that I am sorry that the layout of this room somehow seems to support an adversarial process when actually I suspect that everyone here would rather be sitting round in a circle, trying to find a solution.
One of the frustrations of the job that we all do—this must apply to Ministers most of all—is having a continual, nagging anxiety that practice differs from the theory that we discuss in such detail, and that the formal position is a world away from lived experience. It sometimes seems that a Minister’s briefing is a different reality and that we are working in parallel universes. Statistical information would help with this. It would not be the complete answer. There would always be comments that the criteria were poorly chosen and that such and such should have been measured, but statistics are a necessary component for judging practice and, of course, they are necessary for an open society. Statistical information may sometimes dispel myths; it may confirm one’s suspicions or even prejudices, but it always should tell us—this is a point that the noble Baroness made—what sort of society we are living in, as well as the one we hope to live in.
How pregnant women are dealt with for the purposes of immigration detention is not the only example of a concession given by the Government to get a piece of legislation through. Many of us, led valiantly by the noble Baroness, Lady Lister, wanted to see better protection than Section 60 of the Immigration Act, but the Government convinced parliamentarians of the validity of the provision. It is now a matter of good faith for the Home Office to demonstrate how Section 60 is operating. I am conscious of other matters that will be coming across the Minister’s desk—indeed, one of them has just been mentioned. Some noble Lords may have heard the programme on Radio 4 a couple of nights ago about the protection of overseas domestic workers, in which the Independent Anti-slavery Commissioner, Kevin Hyland, and James Ewins, who reported to the Government with recommendations, both expressed the view that that protection is not working as it should.
The guidance on adults at risk in immigration detention, on which the Minister recently answered Written Questions from me, to which the noble Lord referred, distinguishes between torture by the state and by non-state actors. I recognise that this is not the subject of this short debate but it illustrates a failure to see matters from the point of view of the individual affected. In the case of torture victims, are the numbers so great that the system would be overwhelmed if those were treated as two categories? Is there some issue of comparative fairness? I am really quite puzzled by this. Will it be another frustration for the doctors from whom our inquiry heard about the operation of rule 35? There is no doubt they were very frustrated.
In the case of pregnant detainees, we understand that in 2014 the great majority were released to pursue their applications in the community. Again, what is the point in holding any of them? I am not sure that the more humane and effective approach taken in Sweden, which supports immigrants whose applications are unsuccessful and which we were told we were edging slowly towards, is actually happening to any extent at all. This leaves us with the same old question: what purpose does it serve to lock up pregnant women, not as a punishment but in administrative detention?
We may be told that these are nuanced issues, and that is inherent in Section 60 with its reference to “exceptional circumstances”—although of course Stephen Shaw said that it was a statement of the obvious that,
“detention has an incontrovertibly deleterious effect on the health of pregnant women and their unborn children”.
For the purposes of this debate, and given the wording of Section 60, I accept that. One has to wonder, without the information, how the Home Office can know whether its policy is working and whether it is even meeting its own objectives. If the Home Office does not know, how can the rest of us?
Of course, the collection of statistics is not the same as publication and in May the Minister then dealing with the matter told the House:
“The Government are considering how best to collate the information and whether it will be necessary to actually publish it”.—[Official Report, 25/5/16; col. 388.]
It is necessary. The Home Office itself says so. The guidance includes, in paragraph 6, one of the principles underpinning the guidance:
“There will be a clearer understanding of how the government defines, ‘at risk’ and how those considerations are weighed against legitimate immigration control factors to ensure greater transparency about who is detained and why”.
I think that that makes the case.
Policing and Crime Bill
Baroness Hamwee ExcerptsWednesday 26th October 2016
(8 years ago)
Lords ChamberRead Full debate Read 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)
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.
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.
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.
Policing and Crime Bill
Baroness Hamwee Excerpts(8 years, 2 months ago)
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Baroness Hamwee
Baroness Hamwee (LD)
My Lords, Amendment 77 is in my name and that of my noble friend Lord Paddick. We also have Amendments 78 to 80 and Amendments 82 to 86 in this group. Taken together, our amendments—with the caveat that they are subject to drafting errors—would allow the police and crime commissioner to speak at meetings but not to vote: in other words, to make his voice heard and to put arguments but not to actually be part of the decision-making process.
Earlier today, the noble Lord, Lord Bach, in the debate on various earlier clauses standing part of the Bill, said—I cannot recall whether of himself or generally—“We were not elected as a fire and rescue authority”. That is what underlies this group of amendments. Clause 7 has an innocent heading about the “involvement” of the PCC in the FRA, but gives the PCC a vote. Admittedly it is limited to fire and rescue authority functions, but quite how one identifies those and limits this—even with monitoring-officer involvement, as proposed by the noble Lord, Lord Rosser, in his amendment in this group—I am really not sure. When it comes to budgetary issues, for instance, in the real world a decision over here affects a decision over there. One always has to have regard to the knock-on effects and to the whole package. Whether it is possible to split out the issues in the way that the Bill proposes, I am unconvinced.
Baroness Williams of Trafford
As I have explained, in most instances, the FRA would accept a request, and it would be in the interests of good working, good faith and collaboration for it to do so. As to the process if it refused such a request, as I understand it—I will write to noble Lords if it is any different—if it refuses it, it refuses it, and there is no recourse thereon in.
Baroness Hamwee
My Lords, perhaps I should make it clear that the deletion in the amendments of the transparency provisions, as the Minister described them, were consequential—or possibly presequential. I am not sure about the point on voting. That was not really the thrust of our amendments. I am not comfortable about this. She described the amendments as being anti-collaboration, but collaboration by its very nature requires two parties—not merging the parties into a single authority. However, we are where we are, certainly for tonight, so I beg leave to withdraw the amendment.
Baroness Hamwee
“(1) An order under section 107EA may not be made in the absence of—”
Baroness Hamwee
My Lords, my noble friend Lord Paddick and I also have Amendments 94 to 98 in this group. I am aware that if certain of these amendments were accepted consequential amendments would be required.
I want to probe whether it should be a matter for a particular combined authority mayor to initiate the procedure with which Clause 8 deals. Should this depend on an individual? Having started on that thought, I realise that if we are to have these arrangements, somebody has to start them off, but one is well aware of how a long-lasting arrangement can come about as a result of an individual seeing a short-term advantage. In any event, should there be public consultation, not the discretion which is implicit in the wording in new subsection (2)(b), which refers to,
“a description of any public consultation which the mayor has carried out”?
Surely it should be “the” consultation.
The second subject of this group of amendments is the majority provided by what will be new subsection (3), requiring that two-thirds of the,
“members of the combined authority have indicated that they disagree with the proposal”,
to block it. Come the happy day of proportional representation for local government, it will probably be quite difficult to get two-thirds to disagree. The noble Lord, Lord Harris of Haringey, will have recollections from a different perspective of getting a two-thirds majority in the Greater London Authority, where the mayor’s budget could be blocked only by a two-thirds majority. I am proposing 51%, which I suppose should be “more than 50%” if expressed properly, as that is what a majority is.
This also raises the question of why any opposition should be required to trigger what would be new subsections (4) and (5)—perhaps a more arguable point in the case of the latter—because opposition to the mayor’s proposal merely makes the Secretary of State investigate the situation fully. It does not actually block the proposal. There is a question here before one even gets to looking at the size of the majority. I beg to move.
Baroness Williams of Trafford
My Lords, as the noble Baroness, Lady Hamwee, has explained, these amendments relate to the process for adopting the single employer model by a combined authority mayor. I will take each amendment in turn.
Amendment 93 removes the requirement for a mayor to request that the Home Secretary approves an order implementing the single employer model. In effect, it enables any person to make such a request of the Home Secretary. As I explained during our consideration of the Cities and Local Government Devolution Bill, we considered that directly elected combined authority mayors provided that strong, clear accountability necessary to exercise the wide-ranging powers that were devolved to an area. The processes in the Bill reflect this, giving the mayor the discretions and powers to be exercised locally that it is right for the mayor to have, given their own local mandate and direct accountability locally through the ballot box. Mayors should be able to take the big decisions that they are elected to make, with appropriate safeguards. Where a mayor is responsible for police and fire functions, we believe that the mayor should be the person to make such proposals to the Home Secretary about how these functions are run. Adopting this amendment would be counter to this devolutionary approach, whereby powers and duties usually exercised by Whitehall have been devolved to the mayor.
Amendments 94, 95 and 98 require a mayor seeking to put in place the single employer model to carry out a public consultation on the proposal. The Bill already requires the Home Secretary to consider whether a proposal for the mayor to put in place the single employer model is in the interests of economy, effectiveness and efficiency or public safety before approving it. These provisions do not prohibit a mayor from consulting locally on a proposal. Should the mayor wish to do so, the Home Secretary would be required to have regard to any responses to the consultation when considering whether to give effect to the proposal. Where powers have been devolved to an area, it is for the directly elected mayor to decide how particular proposals, be they for creating a single employer model or any other exercise of powers, should be taken forward. It is important that any proposals brought forward by a mayor are properly scrutinised. Noble Lords will have the opportunity to debate them, as orders to implement the single employer model under a mayor will be subject to the affirmative procedure.
Amendment 97 seeks to lower the threshold for triggering an independent assessment of a proposal to implement the single employer model under a mayor, while Amendment 96 takes the further step of requiring the Home Secretary to order an independent assessment of a proposal, regardless of whether there is local agreement. The amendment would also require a mayor to submit to the Home Secretary any representations made by elected members of the combined authority about the proposal and the mayor’s response to those representations.
It would not be proportionate to lower the threshold or strike out the limiting provisions for ordering an independent assessment of a proposal. The approach we have taken mirrors that of devolution deals agreed to date, whereby members are able to reject specific proposals brought forward by the mayor where there is agreement from at least two-thirds of members of the combined authority. Given that the combined authority mayor will have been directly elected with a strong democratic mandate, we consider that two-thirds threshold entirely appropriate. Not to bore noble Lords too much about Greater Manchester but, as I explained, my position was as one of 10—the only Conservative—and that was the situation that faced me year on year, quite often frustratingly. But the two-thirds majority worked. Lowering the threshold would give room for more regular mischief-making, should members of local authorities see fit. In my experience—noble Lords may disagree—it is an entirely appropriate threshold, and I hope the noble Baroness will withdraw her amendment.
Baroness Hamwee
My Lords, I am sure the Minister, even as only one of 10, was quite capable of making enough mischief. I was never going to win an argument against the strong mayor model and the implications of that—but I do not think having a strong mayor means that there should not be consultation. I beg leave to withdraw the amendment.
Lord Harris of Haringey
I will certainly be grateful to receive a letter from the noble Baroness, Lady Williams. However, I think she has slightly missed the point—namely, that, under the current legislation, if the deputy mayor for policing and crime is not an Assembly member, he or she is politically restricted. It is just conceivable that, because of the convoluted way in which legislation is frequently drafted, the political restriction is derived from something other than those particular clauses in the Local Government Act, but I rather doubt it. Therefore, we are talking about those people who are not already Assembly members who are appointed as either deputy mayor for policing and crime or deputy mayor for fire. The Bill seeks to apply that provision to the deputy mayor for fire if they are not an Assembly member, so they are politically restricted. As I have said before, I think that is a nonsense. Therefore, I hope that the noble Baroness will check precisely how the legislation applies to them. But it certainly has applied to the last two deputy mayors for policing and crime in London, because both of them have been obliged to resign their council seats as a consequence not of any disqualification laid down other than the fact that they have become politically restricted, so clearly the measure has applied under those circumstances. The noble Baroness, Lady Hamwee, no doubt has encyclopaedic knowledge on this.
Baroness Hamwee
I absolutely do not have any encyclopaedic knowledge. However, I am very glad that the Minister has agreed to look into this in more detail because, as the noble Lord describes the situation, it is a farce. As I recall, there was a sort of evolution of thinking about deputy mayors and the use of the 10-plus-two people in the original Greater London Authority Act, and their position. Originally, they were thought of absolutely as the mayor’s creatures. Will this be borne in mind in looking at the position because I think that some of this comes from the original ideas on what the structure would be and how the mayor might structure his or her office? Perhaps things have just moved on a bit from there. I suggest that this is part of a slightly bigger jigsaw.
Lord Harris of Haringey
My Lords, I am grateful to the noble Baroness, Lady Hamwee, for her remarks. I could have included in this the other deputy mayors. I thought that was probably outside the scope of the Bill, but, what the hell, I might have gone for it, because, among the crop of deputy mayors appointed by the current Mayor of London, and, indeed, by his predecessor, were people who were serving borough councillors or, in one case, a borough mayor. They had to resign their offices for those other positions. However, I have confined this amendment to the specific positions of deputy mayor for policing and crime and the deputy mayor for fire, possibly to make it easier for the noble Baroness to look at it. The situation is that, if they are not Assembly members, they are politically restricted. If they are Assembly members, obviously, they cannot be. That is a stupid anomaly which I hope the Government can remedy. Therefore, I beg leave to withdraw the amendment.
Lord Harris of Haringey
My Lords, this is a completely different point, which relates to the role of the proposed fire and emergency committee of the London Assembly. I was interested that the noble Baroness, Lady Williams, moved Amendment 72 a few minutes ago, which said that police and crime panels should become the “police, fire and crime panel” outside London. In London, the parallel structure for the police and crime panel is called the Police and Crime Committee. Confusingly, London has a PCC, but it is not a commissioner. The parallel structure which is therefore created is that a committee of the London Assembly meets—unlike police and crime panels elsewhere in the country—on a very regular basis, comprising politicians who know each other from the same authority. That works better than police and crime panels elsewhere.
The parallel structure created in the Bill is that there should be a fire and emergency committee which would be set up by the London Assembly and carry out the functions of scrutiny with regard to the deputy mayor for fire. That is fine—there should be a scrutiny structure. However, the Bill specifically says that the fire and emergency committee cannot carry out any other functions of the authority. It is saying to the Assembly: “You have to create two separate committees: one to look at policing and one to look at fire”. I would not suggest merging the two committees, but everywhere else in the country the Government are saying that the same panel must do it, even though it will be much less well resourced and much less able to do an effective job. But in London you have to have two committees.
Why can it not be left, in the spirit of devolution and localism, which the Government so espouse, to the London Assembly to decide how it wants to organise these functions? If it wants to have one, two or even three committees, as long as it carries out the functions set out of scrutiny of the respective deputy mayors, surely it should be allowed to decide how it organises to do that. I beg to move.
Baroness Hamwee
My Lords, I support the noble Lord, Lord Harris, on this. I remember quite clearly, during the passage of the Greater London Authority Act, the then Minister—or the government representative at the Dispatch Box; I think it was a Whip at the time—saying firmly, on the basis of notes coming to her from the Box, that the London Assembly should be allowed to sort out its own procedure. I think we were debating an issue around a quorum. The same applies here, probably in spades. It is also interesting that the Government, who are concerned about efficiency, effectiveness and economy, should insist on procedures that must have the potential to be less efficient and more expensive.
Baroness Williams of Trafford
My Lords, as the noble Lord, Lord Harris, explained, the amendment would delete the provision which prevents the assembly arranging for any of its non-fire and emergency committee functions to be discharged by that committee. The role of the fire and emergency committee will be to review how the London Fire Commissioner exercises his or her functions and to investigate and prepare reports on the commissioner’s actions and decisions. The committee will also review draft documents presented to it by the London Fire Commissioner and make a report or recommendations to the mayor. The committee will also undertake confirmation hearings in respect of the appointment of the London Fire Commissioner and the deputy mayor for fire. In addition, it will have the power to require the deputy mayor for fire, the London Fire Commissioner and any officer of the London Fire Commissioner to attend proceedings of the committee to give evidence.
The functions are set out in the Bill so that it is clear that the fire and emergency committee has a specific fire-related purpose. It follows that the committee should not be used for any non-fire-related business of the assembly. This is clearly different from everywhere else in the country, as the noble Lord said—and I am sure that other places in the country will argue for what London has. The position in London is different. There will be two separate functional bodies and no move to a single-employer model, so in that sense it is not the same as elsewhere. I apologise for doing it again, but I compare Greater London to Greater Manchester—it is four times the size.
Baroness Hamwee
“(za) any actions and decisions of the Deputy Mayor for Fire,”
Baroness Hamwee
My Lords, new Section 327I gives the Assembly the power to investigate and prepare reports on certain matters. My amendment would add,
“any actions and decisions of the Deputy Mayor for Fire”,
and,
“any other matters which the Assembly considers to be of importance to fire and rescue services in Greater London”.
Those are taken directly from the powers of the London Assembly in respect of policing—of its police and crime panel. It is called a panel; it runs as a committee. It has the power to investigate and prepare reports about any actions and decisions of the Mayor’s Office for Policing and Crime, and matters which the Assembly considers to be of importance to policing and crime reduction in the Metropolitan Police district. I ask why there is no equivalent for fire.
I note that new subsection (5) will give the Assembly the power to summons the deputy mayor for fire to attend and to produce documents. It seems odd that it should have no power to report and investigate the items and person that it has the power to summons. I beg to move.
Baroness Williams of Trafford
My Lords, the amendments proposed by the noble Baroness, Lady Hamwee, would extend the powers of the assembly fire and emergency committee to investigate and prepare reports about the deputy mayor for fire and any other matters which the assembly considers to be of importance to fire and rescue services in Greater London.
With regard to Amendment 114, the noble Baroness makes a valid point about the need for scrutiny of the actions and decisions of the deputy mayor for fire. I am happy to consider this amendment further in advance of Report. On Amendment 115, any other matters which the assembly considers to be of importance to fire and rescue services will inevitably have already been considered by the London Fire Commissioner in the exercise of his or her functions, and consequently will be subject to scrutiny by the fire and emergency committee. We are not therefore persuaded that this catch-all provision is needed. On the basis that I will consider further Amendment 114, I hope that the noble Baroness will be content to withdraw it at this stage.
Baroness Hamwee
My Lords, I am grateful to the Minister for offering to look at Amendment 114. However, I wonder whether before Report she could look also at Amendment 115 in the light of Section 33(3)(f) of the Police Reform and Social Responsibility Act 2011. Section 33(3) of that Act gives powers that cover,
“actions and decisions of the Mayor’s Office for Policing and Crime”.
That is the equivalent, in policing terms, of the deputy mayor for policing. It also gives powers that cover,
“actions and decisions of the Deputy Mayor for Policing and Crime”.
Quite separately, in paragraph (f), are the,
“matters which the Assembly considers to be of importance to policing and crime reduction in the metropolitan police district”.
This is the exact equivalent, I would have thought, of my Amendment 115. They really do go together—it is a package of scrutiny.
If there is a difference between the provisions relating to policing and the provisions relating to fire and rescue in terms of the assembly’s powers, somebody is going to make the distinction and say, “No, you can’t go there”—when actually, they should go there. However, for the moment, I beg leave to withdraw Amendment 114.
Policing and Crime Bill
Baroness Hamwee Excerpts(8 years, 2 months ago)
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Baroness Hamwee
Baroness Hamwee (LD)
My Lords, Amendment 1 is an amendment in the name of my noble friend Lord Paddick and myself, as are Amendments 2, 3 and 7 in this group. The clause provides for duties in relation to collaboration agreements between the emergency services which are the subject of this part of the Bill. Clause 2 refers in two places to the interests of the “efficiency or effectiveness” of the relevant service and of other services. My first two amendments would insert the term “economy”, which those of us of a certain generation from local government are accustomed to hearing alongside efficiency and effectiveness. My question is in two parts: first, is “economy” now considered to be covered by the terms “efficiency” and “effectiveness”—I can see an argument that it might be—and, secondly, why is there no reference to all three of these attributes? They are all referenced in Schedule 1 to the Bill, which comprises the new Schedule A1 to the Fire and Rescue Services Act 2004.
Amendment 3 provides for consultation. I have listed a rather unambitious group of people to enable me to ask whether consultation is provided for elsewhere. If it is not, it should be. Even leaving aside Sir Ken Knight’s recommendation of trialling such agreements before their wholesale application, collaboration must, in our view, be on a case-by-case basis, best fitting the needs of the local community, hence the reference to the local community in our amendment, as well as to the employees of the proposed parties to the collaboration agreement. It needs no expansion that the views of employees should be important in the decision-making. A formal public consultation is required, not least because of the risk of politicising the process. Transferring responsibilities to police and crime commissioners is a political decision in terms of the service, and perhaps of how it is dealt with in each area. I am not making any pejorative comments about whether particular police and crime commissioners act with politics at the forefront of their minds, so I hope the noble Lord, Lord Bach, will forgive this comment. We now have far more politically aligned police and crime commissioners than we did after the first set of elections, when many independents were elected. We also believe that organisations such as the NHS, the Environment Agency and other emergency responders should be involved.
Amendment 7 probes the strength of the consultation, and would require that the chief officer of police be satisfied that there is no operational problem in the arrangement—a point made by my noble friend Lord Paddick, who will join us soon, after rowing for Queen and country, or at least this House. When the office of police and crime commissioner was created, there was great emphasis on the commissioner not interfering in operational matters. It is a continuation of that thought.
Government Amendment 4 apparently innocently substitutes “or” for “and”. However, the amendment is quite significant. In the relevant wording, the term “its” is used. It is not entirely clear to me whether the “its” in subsection (4)(b) refers to the “proposed party” referred to in subsection (4)(a) or the “other proposed party” referred to in subsection (4)(b). I read it as the original party, but I suggest that that bit might stand some tweaking at the next stage to make it completely clear, so that the casual reader does not go down the wrong route. The more important point is that I would need a lot of convincing that a party should be frogmarched into a so-called agreement, which is the effect of this amendment. I beg to move.
Lord Harris of Haringey (Lab)
This is a surprisingly interesting group of amendments, although not obviously so at first sight. It immediately brings us to the question of the purpose of these clauses. Are the Government asserting that there is a failure to collaborate between emergency services around the country—and, if so, that this is the mechanism to fix it? I am not sure that evidence exists of a failure to collaborate; in my experience, the emergency services work extremely well together and go out of their way to do so. So what is the problem the Government are trying to fix? If the problem is to be fixed by a collaboration agreement as set out, we will need a bit more clarity, which I assume is the purpose of Amendment 3, in the names of the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee, on the proposed consultation. What process do the Government envisage will be followed? Presumably, a failure to collaborate will have been identified in a particular area. Who will have identified that, and what is the process? By implication, it looks as though an agreement to collaborate will be imposed not as an agreement, but because one side rather wants it to happen. There has to be more a lot more clarity.
Then, there is the attempt to correct the drafting error—“or” versus “and”. What is envisaged in that respect? For example, when would it be “efficient” but not “effective” to do this, and when it would be “effective” but not “efficient”? If you are making a big point of changing “and” to “or”, you are implying that there will be circumstances when it is a good thing to have one of these agreements because it is efficient, but actually it is not effective—so why are we doing something that will not be effective? Alternatively, you might be saying that it is a good thing to have a collaboration agreement because it is effective but, unfortunately, not very efficient. Again, I am not quite clear why it is in the interests of anybody to do that. What is the purpose of the Government’s amendment? Can the Minister explain to us in precisely what circumstances she envisages it would be possible to be efficient but not effective, or effective but not efficient?
Baroness Williams of Trafford
If two PCC areas came to the Government with a proposal for change, the Government would consider it, just as in devolution where the Government considered any proposals that came forward. For example, just thinking of home, if Manchester and Cheshire wanted to come together—I am not saying they do—they could put forward a proposal. I hope that I have answered all noble Lords’ questions and that the noble Baroness will be content to withdraw the amendment.
Baroness Hamwee
My Lords, I am grateful for the care that the noble Baroness took in the detail of her response. On my Amendment 7 and operational matters for the police, I am not sure whether she was saying that if a PCC disregards concerns expressed by a chief constable about operational matters—she several times used the phrase “have regard to” such concerns—that would be a breach of the 2011 Act. I am not clear on that. Maybe that is not a matter for answering now. I would be happy to hear from her after today if that is a better way of dealing with this.
I am not sure which of the noble Baronesses who lead their respective councils used the phrase further collaboration—I think it was the noble Baroness, Lady Redfern. But since this is about further collaboration, it raises the question: why? The LGA argued strongly, I think in response to the Government’s consultation paper, that the sector should be enabled to continue to effect change without the Government resorting to legislation. It said that a duty to collaborate was,
“likely to provide a constraint that stifles innovation and broader collaboration. In the LGA’s view, the provision of incentives like transformation funding is more likely to produce greater collaboration between the emergency services, and between them and other public services”.
It said that such incentives,
“would also encourage the ambulance service, which in some cases has been less ready to engage with collaborative programmes”.
Despite what we have heard, that question still hangs in the air.
There was also the comment about consultation on a voluntary basis. When people resist consulting, that is when they most need to be required to consult; I think that must be the experience. The examples used about where things have worked well from the bottom up, prompted by what has been identified locally as desirable, obviously bear careful reading. There are still questions hanging over this but for the moment, I beg leave to withdraw Amendment 1.
Baroness Hamwee
My Lords, I am reluctant to say anything that could be interpreted in any way as negative about the initiative of my right honourable friend the Member for North Norfolk with regard to the mental health crisis care concordat. It is a very important—I was going to say “document”, but it is far more than a document. I am sure that the noble Lord, Lord Rosser, will not disagree that we should be mainstreaming mental health care in everything and should not have to refer to it specifically. I dare say we will come back to the concordat when we deal with the detention of people who are mentally ill, which we will do later in the Bill.
My only hesitation—and perhaps I should have waited to hear from the Minister, but I am afraid I could not resist jumping in to claim credit for my party and its part in the creation of the concordat—is about whether it is appropriate to refer in legislation to something which I read as being a living arrangement, something that is developing, drawing more and more parties into it and finding more and more ways of achieving its essential objective. The issue is important. It may be a matter of how it is dealt with legislatively.
Lord Adebowale (CB)
I support the amendment moved by the noble Lord, Lord Rosser. I have some experience of the police and their responses to mental health as chair of the commission on the Met’s response to mental health policing in London which—I hesitate to claim credit—led to the concordat mentioned by the noble Baroness, Lady Hamwee and the noble Lord, Lord Rosser. It is important that mental health is included in reference to collaboration because those people are at the sharp end of the inverse care law when it is not. I am concerned and would like to know more about the Government’s intentions in this regard. I support the amendment.
Baroness Hamwee
Baroness Hamwee
My Lords, Amendments 8 and 9 are short amendments relating to Clause 4(8), which provides:
“A collaboration agreement may be varied by a subsequent collaboration agreement”.
I wonder why it is necessary to state that. Any agreement can be varied if the parties agree to vary it. Is it the statutory nature of a collaboration agreement that requires this provision? Our second amendment, also probing, is to ask whether the requirements that have to be met before an initial agreement can be proceeded with apply to a subsequent agreement. I assume so, but it would be useful to have that confirmed, and interesting to know if it is not confirmed. I beg to move.
Baroness Chisholm of Owlpen
I thank noble Lords for taking part in this debate. I understand from the noble Baroness, Lady Hamwee, that these are probing amendments designed to tease out how collaboration may be varied. It is of course vital that collaboration agreements can be amended where appropriate to reflect local developments and to ensure the best outcomes for the public they serve. There may be a number of reasons to vary a collaboration agreement, perhaps to include a new partner to the agreement or to change participant roles and responsibilities. Clause 4(8) is simply intended to make it clear that such variations may be made. In locally agreeing to vary the terms in an existing collaboration agreement, the parties will in effect create a new or subsequent collaboration agreement. Such an agreement would be subject to all the provisions that pertain to collaboration agreements. I hope that clarification reassures the noble Baroness and that, accordingly, she will be content to withdraw her amendment.
Lord Hope of Craighead
With great respect to the Minister, she did not address my point. One has a choice: either one varies an agreement or one replaces it with something else. The example given is a very good one of a variation, leaving the existing agreement in place. We are at a very early stage of this Bill and all I am suggesting is that the amendment might be taken away and looked at again. It is a question of the proper use of the English language, which is why I have taken the liberty of standing up and making my point.
Baroness Chisholm of Owlpen
Certainly. I feel I must bow before the noble and learned Lord’s incredible intelligence in these affairs. I cannot possibly completely disagree with what he says because he is way above my intellect. Of course we can go away and look at this.
Baroness Hamwee
My Lords, that is very helpful. The noble and learned Lord makes the argument far better than I did. I will attempt to rope him in on future amendments. As I said, it became not a probing amendment in the course of that exchange. I want to make it clear that we are not at all arguing against the variation of collaboration agreements—that would be intellectually incoherent. That is not the purpose of this. For the moment, at any rate, I beg leave to withdraw the amendment.
Baroness Hamwee
(b) if the duties and restrictions provided for by sections 2 and 3 of the Policing and Crime Act 2016 have been complied with.”
Baroness Hamwee
My Lords, my noble friend Lord Paddick and I tabled Amendments 10, 11 and 99 in this group and we support the other amendments in the group as well. I resisted joining in the debate about trialling the proposals because my noble friend did so and I had mentioned the issues in the debate on the first or second group of amendments. Nevertheless, it is difficult to apply experience from a situation where there has been a voluntary arrangement, such as we have heard described, to the less voluntary arrangements proposed by the Bill.
I turn to our Amendments 10 and 11. Schedule 1 proposes amendments to the Fire and Rescue Services Act. Proposed new Section 4A will allow the Secretary of State to make an order for a PCC to be a fire and rescue authority. Under subsection (4) of the proposed new Section, he can do so only if a PCC has put a proposal to the Secretary of State; and under subsection (5) he can do so only,
“if it is in the interests of economy, efficiency and effectiveness”—
all three Es are spelled out here, as I mentioned earlier —or,
“in the interests of public safety”.
Under the provisions for collaboration agreements there are various duties and restrictions, in Clauses 2 and 3, including the specific issue of the efficiency and effectiveness of the police force. These amendments probe whether wider considerations will apply under proposed new Section 4A than simply the items spelled out in its subsections (4) and (5). Amendment 11 would require the Secretary of State to consider the views arrived at during the formal process of assessment provided by Clause 2.
Our Amendment 99 and Amendments 12, 30 and 44 in the name of the noble Lord, Lord Rosser, take us back to whether we are in the territory of the interests of the three Es and the interests of public safety, or whether one of those in effect overrides the other by being alternatives. In my earlier read-throughs of the Bill I was really puzzled about why it should not be both—and, indeed, why safety needs to be spelled out. Given the Minister’s response to Amendment 6, I hope she will be able to consider these amendments as well. I beg to move.
Lord Rosser
I will be brief. As the noble Baroness, Lady Hamwee, mentioned, Amendments 12, 30 and 44 in this group are in my name as well as hers. As she also said, they seem not too dissimilar to the issue we discussed earlier when we debated Amendment 6. Amendment 12 provides that before the Secretary of State may make an order for a police and crime commissioner to take over the fire and rescue authority, it must appear to the Secretary of State that it would be both,
“in the interests of economy, efficiency and effectiveness”,
and,
“in the interests of public safety”.
It is that last bit which the amendment seeks to achieve.
Amendments 30 and 44 are in a similar vein in respect of the making of an order by the Secretary of State for the delegation of the functions of a fire and rescue authority to the relevant chief constable and in respect of a police and crime commissioner submitting a proposal to the Secretary of State to take over a fire and rescue authority.
Without wanting to labour the point too much, it is not clear why the Government, on this major change in organisational structure for the fire and rescue services, consider that it being,
“in the interests of economy, efficiency and effectiveness”,
and it being,
“in the interests of public safety”,
should be separated and alternatives when it comes to the Secretary of State making an order for a police and crime commissioner to be the fire and rescue authority. It raises issues about in what circumstances the Secretary of State would make an order when he or she considered it to be in the interests of economy, efficiency and effectiveness but not in the interests of public safety, which the Secretary of State would apparently be entitled to do under the terms of Schedule 1. Likewise, in what credible circumstances would the Secretary of State make an order based on it being in the interests of public safety when it was contrary to the interests of economy, efficiency and effectiveness, as apparently he or she could also do under the terms of Schedule 1 as it stands?
As the noble Baroness, Lady Hamwee, suggested, I am rather hoping I may get a fairly sympathetic response, similar to the one I had on Amendment 6. I will wait to hear what the Minister has to say.
Baroness Williams of Trafford
My Lords, where a PCC is interested in taking responsibility for fire and rescue, he or she will work with the local fire and rescue authority to prepare a business case setting out their assessment of the benefits and any costs of a transfer. The business case will then be subject to local consultation. The business case would need to show the Home Secretary how the proposals would be in the interests of economy, efficiency and effectiveness on the one hand or public safety on the other. The Home Secretary is able to make the order only if she is satisfied that one or other of these tests has been met. Amendments 12, 30 and 44 would instead require both tests to be satisfied. Amendment 99 seeks to apply the same change to the single employer model operated by a combined authority mayor.
The provisions as currently drafted mirror those for fire and rescue authority mergers. Section 2(2) of the Fire and Rescue Services Act 2004 sets out that the Secretary of State may make a scheme combining two or more fire and rescue authorities only if it would be in the interests of economy, efficiency and effectiveness or public safety. This is a long-established test, enacted by the previous Labour Administration, for the closer alignment of two services, and we therefore do not agree that an amendment is required.
We would expect that any assessment of the impact of a proposed transfer of governance on effectiveness would include an assessment of its impact on public safety, which is a primary function of the emergency services. In forming a view on the first test of economy, efficiency and effectiveness, the services’ role in protecting the public should therefore be paramount in the PCC’s consideration.
However, the provisions which, as I have said, mirror those that have been tried and tested for fire mergers, also provide for a separate test based on public safety. There may be exceptional circumstances where a current service is failing to protect the public and urgent action is required. In such a case, it is right that the Home Secretary should be able to make a Section 4A order solely on the grounds that to do so would be in the interests of public safety.
While I do not agree with the proposed amendments, I recognise the principle behind them. Police and fire and rescue services perform an important function in protecting the public, and we would not want a transfer of governance to have a negative impact on public safety. It is absolutely not the intention for these provisions to permit cases that would save money but damage front-line provision—which I almost said in my answer to Amendment 1—and the Home Secretary would not approve such a proposal. Indeed, such a proposal would not satisfy the test that it would be in the interests of economy, efficiency and effectiveness for a Section 4A order to be made.
However, there might be other ways of incorporating the spirit of these amendments in Clause 8 of and Schedule 1 to the Bill in order to make it absolutely clear that there is no question of an order being made that would have a detrimental impact on public safety. If the noble Lord, Lord Rosser, would be content not to move the amendment, I will reflect further on what he and the noble Lord, Lord Paddick, have said in advance of Report, although they will understand that I cannot give a commitment at this stage to bring forward a government amendment.
Amendments 10 and 11 are on assessing the duty to collaborate. I cannot be so accommodating with these amendments. As I have set out, where a PCC wishes to seek responsibility for fire and rescue, they will be required to prepare a local case setting out their proposal. The Home Secretary will then give consideration to whether it would be in the interests of economy, efficiency and effectiveness or public safety for the order transferring the functions to be made.
Amendments 10 and 11, proposed by the noble Baroness, Lady Hamwee, in the place of the noble Lord, Lord Paddick, would, in effect, additionally require the Home Secretary to assess the extent to which opportunities for collaboration under the provisions of Chapter 1 of Part 1 had been maximised before she decides whether to agree to the PCC’s business case for a Section 4A order.
I do not agree that such additional steps are required. The duty to collaborate and the fire governance provisions in the Bill are distinct. It is not necessary for a PCC to have exhausted all local opportunities for collaboration in order to make a case for a transfer of governance. While PCC governance of both police and fire and rescue services can maximise the opportunity for collaboration between policing and fire and ensure that best practice is shared, the benefits extend beyond collaboration alone. As Sir Ken Knight found in his efficiency review, the directly accountable leadership of police and crime commissioners can clarify accountability arrangements to the public.
On the basis of that and the undertaking that I will reflect further on Amendments 12, 30, 44 and 99, I hope the noble Lord, Lord Paddick, will be content not to press his amendment.
Baroness Hamwee
My Lords, I reserve my right to consult my noble friend after today.
The start of the Minister’s explanation of “and” and “or” made me wonder whether consistency was more important than logic and safety, but it would be unkind to pursue that thought. The thought I will pursue is the Minister’s comments about safety being encompassed within economy, efficiency and effectiveness —effectiveness in particular, if I understood her correctly. Clearly they are not, otherwise it would not be necessary to have paragraphs (a) and (b) as separate paragraphs and to have paragraph (b) in addition to paragraph (a). We are all grateful to the Minister for offering to consider this further. I think we are not going to come to a meeting of minds on the two earlier amendments. I beg leave to withdraw the amendment.
Baroness Hamwee
My Lords, my noble friend Lord Paddick and I have Amendment 23 in this group. It is a probing amendment, although it no doubt looks as if it may be more than that. It would take out what will be the new Section 4E in the Fire and Rescue Services Act, which is the requirement for an authority created by Section 4A to have a fire fund and for receipts and expenditure to be dealt with through that fund.
I am not of course challenging the need for transparency or the need to enable audit trails and all the rest of it, but a separate fire fund presumably means a separate policing fund, and our amendment is intended to probe how this will work. If there are to be efficiencies through shared facilities, and perhaps shared sites and some shared staff, how are those to be dealt with? Is there to be an allocation of costs of the shared services to the fire fund and to the policing budget? What is to stop virement between police and fire—or between fire and police, whichever way you look at it? I hope that the noble Baroness can explain a little more how the budgetary and accounting arrangements are to operate.
Baroness Williams of Trafford
My Lords, public safety is of course paramount and it is important that fire and rescue authorities are properly resourced to carry out their life-saving and other functions. When a PCC is interested in taking on the governance of fire and rescue, they will work with the local fire and rescue authority to prepare their proposal, including an assessment of why it would be in the interests of economy, efficiency and effectiveness, or public safety, for the transfer of governance to take place. If the noble Lord is amenable, we can address the issue of consultation in Amendments 47 and 48, as it is relevant to them. It is also important to remember that fire and rescue authorities are required, under the duty to co-operate, to provide the PCCs with necessary information to inform their proposal. It is reasonable to expect that an authority’s funding provision will be a key piece of information for any PCC to consider.
Amendment 13, put forward by the noble Lord, Lord Rosser, appears, at least in part, to be based on the assumption that under the governance or single-employer model it would be possible to divert fire service funding to the police force. The noble Baroness, Lady Hamwee, also talked about virement. I assure the Committee once again that there will be no change to the way funding is allocated to fire and rescue authorities that are the responsibility of PCCs, and no question but that FRAs will have the resources they need to carry out their important work. As the then Policing Minister said during the passage of the Bill in the House of Commons, under both the single-employer model and the governance model, there will continue to be two separate precepts and two separate central funding streams for the police and the fire and rescue service.
The noble Lord, Lord Rosser, talked about the position since 2010 regarding firefighter jobs et cetera. There has been a long-term downward trend in the number of both fires and fire deaths, which recently reached historically low levels. Despite the latest increases —which I concur with the noble Lord about—fire deaths in England in 2015-16 were still 9% lower than they were some six years ago and fire injuries requiring hospital treatment were 25% lower. At this point, I pay tribute to the fire service for installing smoke alarms in people’s homes and advising them on how to reduce the risk of fire. I am sure that has helped with the long-term reduction in these numbers.
Given that assurance, I hope the noble Lord agrees that the amendment is unnecessary. By driving efficiencies in the way that back-office and support functions are provided to both the fire and rescue service and the police force, the provisions in Part 1 will help to strengthen front-line services.
I understand that the intention of the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee, in tabling Amendment 23 is, as she said, to probe how any joint service functions could work in practice if the funds continue to be separated in the way I have set out. The Committee should be in no doubt that under the provisions in the Bill, a police and crime commissioner will not be able to use the fire budget for policing and vice versa. The money spent on each service will need to be accounted for separately in order to ensure transparency and accountability.
However, I assure the noble Baroness that it will still be possible for police and fire funding to be allocated for the purposes of shared back-office functions or other collaboration arrangements, but the costs for these functions will be apportioned back to the appropriate budget and accounted for separately. This ensures that clarity and transparency in funding is maintained. Requiring the police and crime commissioner to hold a separate fire fund for their fire funding mirrors the existing arrangements in place for them to hold a police fund.
Given those assurances, I hope that the noble Lord will be prepared to withdraw the amendment.
Baroness Hamwee
Baroness Hamwee
My Lords, we have Amendments 14, 15, 32 and 100 in this group. Amendments 14, 32 and 100 concern the provisions in different parts of the Bill for the transfer of liabilities from an existing authority to a new one. My question is the same in each of these examples: will the consent on the part of the person to whom the liability is owed be required, and will there be an indemnity of that person? In the normal commercial world, where a transfer or merger is made by agreement you cannot simply transfer a liability without the other party to the arrangement being involved and agreeing to it. New Section 4C(4) provides that such an arrangement may be permitted, but it does not require it. That applies to three of the four amendments.
Amendment 15 deals with the provision under new Section 4C(5) for a scheme to provide for any modifications—that is, modifications made by agreement after the scheme comes into effect—
“to have effect from the date when the original scheme comes into effect”.
Why is this necessary? It may not technically be retrospective but it could be quite confusing. Is it simply to ensure that any glitches that have been identified are put right from the start—that is how I read it—and what happens if third parties have been affected before the scheme is modified? I beg to move.
Baroness Chisholm of Owlpen
My Lords, the noble Baroness, Lady Hamwee, has indicated that these are probing amendments, designed, in the cases of Amendments 14, 32 and 100, to provide some reassurance to those persons to whom a liability is owed that they will not be disadvantaged by a scheme transferring the liability. I appreciate that assurances on liabilities are important when considering arrangements for their transfer from an existing fire and rescue authority to a new PCC-style FRA or to a chief constable.
Statutory transfer schemes of this kind are well precedented. Indeed, I might add that the Police Reform and Social Responsibility Act 2011 directly transferred all property, rights and liabilities of the old police authorities to the new police and crime commissioners or other local policing body. We have adopted the usual approach here of not requiring the consent of affected persons to the transfer of property, rights and liabilities. Once a Section 4A order is made, the existing fire and rescue authority will cease to exist and it is therefore right that all property, rights and liabilities held by the existing FRA should be transferred. If a person to whom a liability was owed was given an effective veto as to the transfer, that would arguably necessitate the preservation of the existing FRA alongside the new PCC-style FRA. This is a recipe for confusion and muddle.
However, I reassure the noble Baroness that the new PCC-style FRA, or the chief constable, to whom liabilities are transferred will take on the contractual obligations in respect of those liabilities, including, for example, the repayment of any debt. The person to whom the liability is owed will not be disadvantaged.
On Amendment 15, I hope I can reassure the noble Baroness that the approach taken in the Bill to the modification of a transfer scheme is the right one. The power to make modifications is designed principally to ensure that, should it be necessary, corrections may be made to a transfer scheme, particularly to address any errors made regarding the persons to whom rights or liabilities have transferred. As I am sure the noble Baroness appreciates, such transfer schemes can be complex and it is important to safeguard the ability to make revisions. These would need to be effective from the date at which the transfer came into being, rather than the date when the modification was made. To provide otherwise would risk disadvantaging a person, for example, to whom a liability was owed. I assure her that such modifications will be made only where there is agreement to do so between the affected parties.
On the basis of these reassurances, I trust that the noble Baroness will be content to withdraw her amendment.
Baroness Hamwee
My Lords, that is very helpful, and I do indeed beg leave to withdraw the amendment.
Baroness Hamwee
My Lords, we indeed have amendments at the various points at which there is reference to the application of an enactment with or without modifications. I apologise to the Committee that two of the amendments were published only this morning. They were tabled at the same time as the others and I do not know at what point they got lost—there is no particular significance in that.
I missed whether the noble Baroness in her reference to existing legislation was using the term “necessary modifications” as a quote from legislation or whether it was an assurance. If it is in other legislation, that makes my case; if not, I am not clear where the assurance will be in the Bill that the modifications will be “necessary” only for the purposes that she explained. On the face of it, to be able to apply an enactment with, by definition, unnecessary modifications, gives the Secretary of State a very wide power. I am sorry if I am being dim. It is entirely possible that I have lost the plot, but assurances not just from the Dispatch Box but in the Bill as to how the power will be used would be the most desirable way to go.
Baroness Chisholm of Owlpen
I am grateful to the noble Baroness for explaining her amendments. She explained that they are designed to seek further clarification of the scope of the order-making powers conferred on the Home Secretary to enable provisions of local policing and fire and rescue enactments to be applied to a PCC in relation to their fire and rescue functions, and to a combined authority mayor, where they are exercising the single-employer model.
The ability to apply provisions for such enactments with or without modifications is important to ensure that PCCs and combined authority mayors have the necessary powers and duties to exercise their functions effectively. This may include the ability to make consequential modifications as well as those that are necessary in the strictest sense to enact the arrangements contained within the PCC’s fire governance proposal.
I reassure the noble Baroness that the Home Secretary would need to exercise these powers reasonably and rationally and would do so only on the basis of applying provisions that are consequential on the implementation of either the governance or single-employer models. The Joint Committee on Statutory Instruments will also play an important role in scrutinising the use of the delegated powers and would make a report if in its view the Home Secretary had acted outside her powers or used them in an unusual or unexpected way. I should add that the Delegated Powers and Regulatory Reform Committee did not raise any concerns in respect of the existing order-making powers in the Bill relating to local policing enactments.
On the basis of these assurances, I hope that noble Lords will support the government amendments.
Baroness Hamwee
My Lords, I thank the noble Baroness. She seemed for most of her response to be making my case for me. I noted that the Delegated Powers and Regulatory Reform Committee had not commented on this—but, undeterred, I ploughed on. I will want to read precisely what she said, but I think that the important point is about the reasonableness of any modification made by the Secretary of State and how it relates to what she and I are both describing as “necessary”. I will not pursue the point this evening, but it is no reflection on her if I say that an assurance that the Secretary of State will do the right thing does not cut it for me with legislation.
Baroness Hamwee
Baroness Hamwee
My Lords, I always relish advice to the Committee that an amendment that we know has no hope of being agreed today may pre-empt a government amendment. Amendments 17 and 19 relate to the provision for the delegation of functions of the fire and rescue authorities and the two new subsections which deal with further delegation. My question—again probing—is why further delegation is required, as distinct from a chief simply arranging for functions to be carried out by his or her officers or staff. Later, new Section 4I(4), I think, seems to envisage arranging for functions to be carried out, and that is very different from delegation. I am sorry that the noble and learned Lord, Lord Hope, is not here, because he might agree with me about the principle that someone to whom something is delegated cannot himself delegate that thing. Will the Minister also confirm that subsections (4) and (5) of new Section 4H apply to further delegation?
The other amendments in the group are consequential, and I am sure that if my amendment were agreed, other consequentials would be required—but there is a limit. I beg to move.
Baroness Williams of Trafford
My Lords, as the noble Baroness explained, these amendments are about the delegation of fire and rescue functions by a police and crime commissioner and sub-delegation by the chief constable under a single-employer model. I understand these to be probing amendments—the noble Baroness confirmed that—which are designed to test why arrangements for delegation are required, and to ensure that the chief fire officer or chief constable, as appropriate, will continue to have operational responsibility. I hope to be able to reassure the noble Baroness on both those points.
Where an order is made transferring responsibility for the fire and rescue service to the police and crime commissioner under new Section 4A of the Fire and Rescue Services Act 2004, it is necessary for that order to make provision about the delegation of functions by the police and crime commissioner. As the fire and rescue authority, the PCC will have the functions of the fire and rescue service vested in it as a corporate sole. However, in practice we would expect it to delegate the majority of functions to a chief fire officer who, under arrangements to be made by the PCC, would have operational responsibility for the service.
The order therefore needs to specify which functions may or may not be delegated, including the strategic functions that must be performed by the PCC and those operational functions we would expect to be performed by the chief fire officer. It is right that the PCC should be enabled by the order to delegate fire and rescue functions to its fire and rescue staff, including firefighters, to secure the delivery of an efficient and effective fire service. I have also tabled technical amendments to ensure that the PCC is able to delegate fire and rescue functions to the staff of its PCC office so that the office can operate effectively, appoint a single chief executive and share policy support if it so wishes to drive efficiency.
Where an order is made under new Section 4H of the 2004 Act implementing the single-employer model at the request of a PCC, it is also necessary for that order to make provision about the delegation of functions by the chief officer. The chief officer will legally be the chief constable of the police force area, but will be the employer of both police and fire and rescue personnel. In order to secure the effective delivery of the fire and rescue service, the chief officer will need to be able to sub-delegate functions that have been delegated to them by the PCC to fire and rescue staff who have transferred to them, as well as to any fire and rescue staff they employ, including firefighters.
Additionally, to help them to maximise the benefits of collaboration between the two services, the chief officer will also be able to delegate fire and rescue functions to their police personnel. However, let me be absolutely clear that this is not an operational merger, as I have said before. The delegation of functions is subject to the clear restriction that police officers cannot be employed for the purposes of fighting fires and that firefighters cannot perform functions that are reserved for warranted officers.
Finally, I would add that, in practice, the arrangements with regard to the delegation of functions will operate in similar fashion to the way in which they do now. The 2004 Act confers functions on fire and rescue authorities, but those authorities do not discharge all functions themselves. Many are delegated to a chief fire officer and sub-delegated beyond that. We need similar flexibility under the scheme provided for in the Bill. With that explanation, I hope that the noble Baroness will withdraw her amendment.
Baroness Hamwee
My Lords, the first thing I should do is thank the Minister for putting on the record the answer to a question that I put to the Bill team a little while ago seeking some clarification. It is good to have that on the record. That was in regard to officers in different types of authority—police and fire—carrying out one another’s functions.
I remain a bit confused about sub-delegation, as distinct from arranging for functions to be carried out by what under this scheme is a sub-delegatee—I do not know whether that is the right word for the person further down the chain. I will think about what the Minister has said, and I beg leave to withdraw the amendment.
Baroness Hamwee
“(2A) The cost of obtaining the information referred to in sub-paragraph (2) shall be met by the police and crime commissioner.”
Baroness Hamwee
My Lords, my noble friend Lady Bakewell of Hardington Mandeville would have moved and spoken to the amendments in this group had she been able to be here. Her experience is very long and very current. That is what has led to these amendments, although she is not alone in wishing to pursue the points. We have Amendments 45, 47, 49, 52, 53, 54 and 55 in this group.
Under new paragraph 2(2) there will be an obligation on a fire and rescue authority to provide information. This is rarely a cost-free exercise, as anyone who has ever observed it or had to take part in it will know. A police and crime commissioner can request information —which is not unreasonable—if he is considering proposing a collaboration arrangement, but should he, perhaps rather casually, put the fire and rescue authority to a cost in providing that information? At the least, we should be assured that he cannot put the authority to a lot of cost simply by requiring information in a particular form. That can be very tedious and absorb many hours of work simply by changing the way information is presented because the person who has asked for it wants it in a particular form. It is not unknown for that sort of thing to happen. There are reasonable requirements, which is a limitation, but they apply only to the information, not to the form it takes.
With regard to Amendment 47, there is a provision in the Bill to seek views. In our view, that is inadequate. Such a significant matter would be expected to require full consultation. “Seeking views” would be understood to mean less than consultation. It suggests something less formal, thorough and precise. Amendment 49 would follow on from Amendment 47: the results of the consultation should be published.
Labour’s Amendment 48 raises an important point: new paragraph 3(b) seems to put policing above fire and rescue. However, when you have more than one fire and rescue authority in a police force area, as in the Thames Valley, for instance, only the fire and rescue people would be consulted. Should not everyone affected be consulted?
Amendments 52 and 53 would require all relevant local authorities to agree. There is a very important underlying issue here: the role of local government, which has in many ways been reduced over the years. No doubt I show my age here but it used to be seen as bringing everything together; it was a political expression of local community. Now, as I observe from well outside it, it seems to be expected to pick up what is left from other actors.
Without wishing to detract from the earlier amendments to which I have spoken, why is it necessary to allow, under Amendment 54, for modification, and what might require modifying? If you look at new Section 4A, you begin to wonder what might come within “modifications”. It does not seem to refer to a corporation sole, nor to the point about a police and crime commissioner for a different area being the fire and rescue authority. I cannot quite follow it.
Amendment 55 addresses which local authorities are relevant for the purposes of the schedule. It suggests that neighbouring authorities outside the area of the fire and rescue authority might well be affected and should come within the definition so as to enjoy the rights of relevant local authorities. Given the references made this afternoon to the innovations and co-operation between services that have already taken place, this is a further argument that neighbouring authorities ought to fall within the scope of the exercise. I beg to move Amendment 45.
Baroness Hamwee
I am glad to hear that the Government will consider Amendment 49, and I thank the Minister for that. I am not surprised to hear that Mancunians behave well; I know that they would have the sense to ensure that Councillor Williams was on side with proposals. Of course, I agree about the bad climate that could be created if people behaved with a lack of sense, but that does not answer at all my point on the legislative provision. I have not yet seen what harm there might be in my amendment, which, as we hear from the noble Baroness, expresses what might happen in practice.
As the Minister said, and as I anticipated in my opening remarks, we are talking about information that a PCC may reasonably require from the fire and rescue authority, and there might be an issue in asking it to provide that information in a particular form. We have all come across having to fill in boxes while thinking, “If I actually gave you this document, it would give you the answers to all my points”. That is one of the things which is in my mind; I am not sure whether it was in the mind of my noble friend Lady Bakewell. However, I must make it clear that we in no way resist co-operation in this situation. I will, of course, want to talk to my noble friend and, indeed, to the Local Government Association, which has been much concerned with this whole area of the Bill. I beg leave to withdraw the amendment.
Immigration
Baroness Hamwee Excerpts(8 years, 2 months ago)
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Baroness Williams of Trafford
I totally agree with my noble friend, and that is why we want not only to train but also to retain some of the brightest and best students from around the world so that they can contribute to our economy.
Baroness Hamwee (LD)
My Lords, does the Minister accept the importance of accurate information that is publicly available, especially on an issue where information is often secondary to anxieties, fears and sometimes prejudice? Can she also tell us what progress is being made on determining the number of people who leave the UK?
Baroness Williams of Trafford
I certainly agree with the noble Baroness that accurate information is absolutely vital. Exit checks will tell us how many people are leaving, and the more accurate information we have, the better we will know exactly what the figures are.
Policing and Crime Bill
Baroness Hamwee Excerpts(8 years, 4 months ago)
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Baroness Hamwee (LD)
My Lords, another day, another 323 pages of Home Office legislation. I realise that for the noble and learned Lord, who has had to immerse himself in it, this must be a bit like having his client settling at the door of the court, as he will not be able to continue with it. We have a Long Title which is long enough for the antennae of many noble Lords to twitch with the prospect of introducing their specialist subject—the noble Lord, Lord Moynihan, demonstrated that amply.
As it always does, the House has demonstrated much expertise in, and practical experience of, aspects of policing. This is called the Policing and Crime Bill but, from the preponderance of briefings that I have received—other noble Lords will, no doubt, have as well—I wonder whether a significant part of it should have been led by the Department of Health. The noble Lord, Lord Brooke of Alverthorpe, made a similar point, though perhaps coming from a different perspective. There are four clauses, out of more than 150, on powers under the Mental Health Act. While the organisations from which I received briefings gave some welcome to these, the concern to do more and better comes through loud and clear. As Mind pointed out—and the noble Baroness, Lady Howe, reminded us—the Mental Health Act 1983,
“allows people to be deprived of their liberty when they haven’t committed, or are not suspected of having committed, a crime”.
Concerns about the places of safety provisions have been expressed in the Chamber and from outside including, most recently, from Black Mental Health, some of which came through on my iPad after we had started the debate.
Inevitably, there has been a focus on resources. I hope we might hear something positive from the Government—a Government who acknowledge that mental health services are a Cinderella. My right honourable friend Norman Lamb had seven amendments in the Commons. Reference has been made to some of his concerns, but not to disallowing the use of tasers by police officers on psychiatric wards. They have no place in mental health care—I stress care—nor, really, do the police. We will pursue his concerns and, I suspect, more, as we have more scope in this House.
According to the Long Title, the Bill will,
“make provision to combat the sexual exploitation of children and to protect children and vulnerable adults from harm”,
but not as extensively as the children’s organisations which work so effectively together point out. We have heard concerns about extending child abduction warning notices, online offences, disrupting grooming and therapeutic support for victims of abuse, which is something I feel strongly about.
As the noble Lord, Lord Blair, said—and I think the noble Lord, Lord Rosser, did too—the Bill was introduced as “finishing” the job of police reform. Will it ever be finished? Some 42 police forces provided information to a Liberal Democrat FOI request about 101 calls. This is nothing to do with Nineteen Eighty-four—I have not got my Bills mixed up. From 2012 to date, 3.5 million calls were unanswered. These 101 calls may not be about emergencies, but that does not mean they are not about serious matters. To the citizen, any call to the police which is unanswered is serious.
I share doubts about whether the administrative arrangements will lead to increased confidence. Much has been said this afternoon about local collaboration between the blue-light services. Along with my noble friend Lady Bakewell of Hardington Mandeville, I feel that local authorities should have a leading position in decisions around this. Allowing police and crime commissioners voting rights at local authority meetings is, at the least, questionable. My noble friend referred to the term “good will”, which is an immensely important point, and I remember the chambers of commerce report to which she referred.
I turn to governance issues. Maybe the summer holidays will re-energise us all and enable us to come up with an enormous raft of amendments to debate the points to which our attention was drawn by the noble Lord, Lord Harris, and by the noble Lord, Lord Bach, in his compelling speech. We are told all this is based on efficiency and effectiveness, but whether that is fulfilled rather depends on the criteria you set.
On the subject of confidence, I take the point made by the IPCC—as it still is—that a change of name to Office for Police Conduct is likely to be read by the public as meaning a police body, not an independent one, as my noble friend Lady Harris of Richmond said. There is far more to be addressed on conduct and complaint matters, but I will indulge myself by saying that “super-complaint” seems to me to be a very unfortunate term.
There is also appropriate concern about what has been called the constitutional novelty of directly elected politicians taking on a quasi-judicial function.
How the police use civilian staff seems to have swung to and fro over quite a short period. When I was first concerned with the Metropolitan Police’s budget, through my membership of the London Assembly, we often questioned what seemed to be a widespread view that you could not, for instance, handle human resources if you did not wear a uniform. The pendulum has swung a lot. Whether expanding the role of civilian staff and volunteers—no doubt driven by cost-cutting—jeopardises the service, is something which we must discuss. I recognise a lot of what the noble Lord, Lord Blair, was talking about. I do not know whether I should be concerned, but I am, about the impact of all this on neighbourhood policing. Its status, and the investment in it, seems to have been reduced—I might even say downgraded—over not a very long period.
The provisions about the detention of 17-year olds show the value of the European Convention on Human Rights. We have a 35-page human rights memorandum and there are, of course, enhancements of human rights in the Bill. Like others, I suspect this is because of the scrutiny role of this House. I do tend to go straight for the problem areas and forget to acknowledge the good bits. There is also an 85-page delegated powers memorandum, so that might turn out to be material for scrutiny.
The requirement to confirm nationality will take us to human rights issues and, for the second time in a matter of months, to the confusion of the roles of police and immigration officers. This was raised by the Joint Committee on Human Rights, of which I am now a member. In a letter to the then Home Secretary, the chair of the committee wrote:
“Although the Government has accepted that Article 14 of the Convention may be engaged in respect of foreign nationals, the ECHR memorandum does not consider any potentially differential impact on BAME UK citizens”.
She referred to the,
“discretion to the individual officer as to whether or not to ask the arrested person to state their nationality. This raises the prospect of UK nationals who are members of ethnic minorities being more likely to be asked to state and then prove their nationality than other UK nationals”,
with a risk of discrimination contrary to Article 14 in conjunction with Article 8. On behalf of the committee, she asked the Government to,
“address this issue of possible differential impact and explain how this differential impact can be avoided or justified”.
The answer was that:
“it is considered that such interference”—
requesting proof of nationality—
“is proportionate and justified to the pursuit of a legitimate aim—namely being able to properly exercise an effective immigration control”.
There is either a circularity or an assumption about what the problem is there. It does not answer the question but answers another point entirely. The Minister replying pointed out that,
“both immigration officers and the police must comply with public law principles”,
including,
“the requirement to act reasonably in all circumstances”,
and that their actions or decisions,
“may be challenged in the courts by means of judicial review”.
I have to say that I do not find that convincing.
Maritime enforcement also raises human rights issues and issues around the refugee convention. We do not seem to have a Minister with particular responsibility for refugees now, which is a pity because their plight must not go out of the headlines and I know that this House will not relegate the matter.
The noble Lord, Lord Condon, referred to a long list of problems that will have to be addressed because of our exit from the EU. Would that we could sort them out in the Bill.
I have said enough for today except for my last note, which says, “Whinge about the timing of Committee”. I am not sure whether this Policing and Crime Bill will be light relief from the Investigatory Powers Bill, as jam in the sandwich during our two weeks in December—
Baroness Hamwee
I meant September; that was wishful thinking. I do not suppose that that sandwich arrangement would be particularly welcome to Ministers either, but it will not deter us from raising issues on either Bill which we feel must be raised. On the same basis as it takes longer to write a piece for the Sun than for the Guardian, there may be rather a lot of amendments.
Modern Slavery (Transparency in Supply Chains) Bill [HL]
Baroness Hamwee Excerpts(8 years, 4 months ago)
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Baroness Hamwee (LD)
My Lords, I wondered whether to congratulate the noble Baroness on her place in the ballot but I do not think it is a matter for congratulation. It is not an achievement; it is luck, says she who came 49th. Introducing a worthwhile Bill, however, is a matter for congratulation and I congratulate her warmly on that. Like her, I acknowledge the work done in the private and professional sectors on this issue.
The Modern Slavery Act was indeed an important landmark, and Section 54 was very welcome for starting us on the road we have been discussing. The recent paper, Good Business: Implementing the UN Guiding Principles on Business and Human Rights, which is as recent as last May, said:
“Companies understand the business case for respecting human rights and the benefits this brings. They understand that positive action, supported by due diligence, transparency and reporting”—
all three relevant terms today—
“can … help to protect and enhance a company’s reputation and brand value ... safeguard and expand their customer base … help them attract and retain good staff”.
I could continue with its list of nine points, which ends with a reference to supporting company ethics and values. I will come back to companies.
The moral issues—the last of those points—which underlie Section 54 extend beyond companies to the public sector. I recall many noble Lords, particularly the noble Baroness and the noble and learned Baroness, commenting on that when we debated Section 54. In any event, the line between the public and private sectors is increasingly blurred, but this is nothing new as a general concept for public authorities. We have equality duties, environmental considerations and more. I was a councillor when it first became common to include an environmental assessment of a proposition. There was concern then that this would become just a tick-box exercise, and maybe sometimes it has. Maybe it is because transparency in supply chains, TISC, is not a tick-box exercise for which you need only a statement—there is no statement—that the Government are rather cautious about this.
There are at least two sides to the moral aspect. “Do as I say, not as I do”, is not a very attractive way of going about things, and public bodies should have the highest standards. Earlier this week, I raised with the noble Baroness that local authorities were likely to have concerns about resources. This is not a new point to her, but I ask her today to give the House an assurance that, as the Bill goes forward—as I hope it will—she will consult local authorities, and specifically the Local Government Association. When the Minister responds, I hope he will confirm that the health sector, or certain parts of it—I am quite confused about this—would be covered by the clauses in the Bill.
In the commercial sector, we have said all along that it is crucial readily to identify the companies subject to the Section 54 duty because at present they are, in effect, anonymous. It is understandable that compliant companies feel they are not on the level playing field that has been referred to, and I know the Government consider it up to consumers to find out and to NGOs to do a good deal of leg-work. Frankly, both are unrealistic, and one has to acknowledge that consumers—I put myself in this bracket—often need spoon-feeding.
There is another aspect to this. Section 54 provides that the duties imposed on commercial organisations are enforceable by the Secretary of State bringing civil proceedings. The Secretary of State needs the information to be able to enforce the section in the statute. It is counterintuitive for the Government not to be working to find a way to give the infrastructure to the Secretary of State to enforce her own provision.
If the Bill is not the way to achieve transparency, including identification, I hope the Government can help us find the way that is. It is better not to be prescriptive about it, whether it is the annual report, annual accounts or whatever. It is about the transparency—about making the company’s position clear and accessible without insisting on it being a particular mechanism.
To come back to procurement, the sheer muscle, because of their size, that public bodies can exert is notable. We have the Public Contracts Regulations 2015, which I believe will bring the authorities that we are concerned about within their remit, through tracking Regulation 57(8)(a) back to Regulation 56. But what struck me in my failure to track that properly was that there is a heading to all this that says “Discretionary exclusions”. Regulation 57(8) states:
“Contracting authorities may exclude from participation in a procurement procedure any economic operator in any of the following situations”.
I would be grateful if the Minister could comment on that.
When we debated the Modern Slavery Act, there was much reference to consumer power and making your spending count. That applies, perhaps in spades, to public authorities. I very much dislike the much-used phrase in politics, “Isn’t it time that …” but the time came long ago to get this right. We cannot rewrite the past, but we can write the future, and I wish the Bill a very fair wind.
Lord Keen of Elie
I am obliged to my noble friend. I have already met the noble Baroness, and I am obliged to her for making time for that meeting. I am perfectly prepared to meet again to discuss how we can address some of the issues raised by the Bill because the Government’s position is that, while we welcome some of the proposals, we do not consider that primary legislation is required to achieve these ends. I would welcome an opportunity to discuss those points further in due course.
I turn to the observations by the noble and learned Baroness, Lady Butler-Sloss. She asked a number of questions about the burden of regulation and whether it was any longer an issue because, as she put it, in the consultation process the biggest companies said it was not a problem. We are not concerned with just the biggest companies, though; we acknowledge their role in this and the peer pressure that they can bring to bear, but this concerns every company with a turnover of £36 million or more and we have to take account of the burden upon all those companies, not just the biggest of them.
On the point about government procurement, I hope I have addressed that by pointing out that in a sense a parallel scheme is in place regarding procurement. I acknowledge the point made by the noble Baroness, Lady Hamwee, that the regulations do not carry an absolute. There are reasons for that. The code of practice will complement how and why those regulations should be taken into account.
Baroness Hamwee
Is the Minister aware, and he may not be, whether the Government have any plans to report publicly on the compliance with—“compliance” may be the wrong term for something that is discretionary, so perhaps I should say “observance” of—those regulations? In other words, will they report on how successful those regulations are? That is a matter of public concern, obviously.
Lord Keen of Elie
I can understand the observation but, as the regulations are to be complemented by a code of practice that I believe is going to be brought into force in October this year, I do not think I am able to anticipate how compliance may occur. I will address in writing to the noble Baroness the question of whether there will be some form of requirement for compliance auditing in respect of that matter.
The right reverend Prelate the Bishop of Derby raised the question of central repositories, and mentioned an instance of an organisation in Bristol. I am not in a position to go into individual cases at this time. As noble Lords are well aware, the Government have not launched an online repository, although we are aware of a number of proposals from third parties who suggest that they could develop a website to host these statements and to help people to search for them. I would like to complete a quotation that the noble Lord, Lord Alton, made regarding an answer I gave in April this year when I said:
“There never was an intention to establish any central monitoring system with respect to these provisions”.
That was in the context that there was never any government intention, which was perfectly clear. I went on to say:
“The Government have always been clear that it is for others to establish such a mechanism. We are aware of a number of organisations that propose to set up a central repository”.—[Official Report, 13/4/16; cols. 256-58.]
The right reverend Prelate went into some detail regarding a particular development in this regard, and I undertake to write to him on that matter because he raised a point that I am not in a position to address this stage.
The noble Baroness made the point, which was also made by other noble Lords, that these are early days. I remind your Lordships that this legislation came into force in October 2015, requiring companies to respond and to obtemper their Section 54 statement in their financial year from March 2016 onwards. We are at the very beginnings of this process.
That brings me on to a point made by my noble friend Lord Smith, who asked me a number of questions about the number of companies that have complied and the number that have relied upon Section 54(4)(b) of the Act and said they could not make a statement. It is simply too early to say what the position is regarding those matters. Those figures have not been collated and cannot be, because it is only from March this year that companies have had to address the question of compliance. I regret that I cannot provide figures at this stage.
The noble Baroness, Lady Goudie, raised the issue of local authorities and government departments. I hope that to some extent I have addressed the point that she was making by seeking to explain that the original legislation was designed particularly for the private sector, and that there are parallel provisions. They may not be regarded as quite as absolute as those that apply to the private sector, but there are parallel provisions that we have under the procurement regulations and which are being developed by reference to the code of practice.
I turn to the observations from the noble Lord, Lord Alton. Again, he referred to early indications of how the Act is being complied with. I underline that point: these are only early indications. We have to look further and consider how the Act is going to bed in. In my submission, it is too early to suggest that we should be tinkering with the legislation before we know how it is actually going to work in practice. He also alluded to the alleged lack of any monetary penalty for those who simply ignore the provisions of the Act. I remind noble Lords that the provisions are civil. The Secretary of State has the right to bring injunctive proceedings against a company that persistently fails to obtemper its Section 54 obligations, and if it still fails thereafter to obtemper those obligations it will be in contempt of court and liable to an unlimited fine.
Immigration Officers
Baroness Hamwee Excerpts(8 years, 4 months ago)
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Lord Ahmad of Wimbledon
I am not going to speculate on what will happen over the next five years. The important thing to remember, when it comes to immigration and applications for leave to remain, is that we look at the best interests of our country, but also at the best interests in regard to what we are on the global stage. We are a welcoming nation to people from all around the globe, and long may that remain so, to ensure that Britain continues to prosper and grow on the global stage.
Baroness Hamwee (LD)
My Lords, while I would like to encourage the noble Lord to change immigration policy from the Dispatch Box, I will restrain myself. With regard to the officials who are the subject of this Question, I understand that there is a difficulty with retention. Is that correct, and if it is, are the Government aware why there is a problem with retaining the officers?
Lord Ahmad of Wimbledon
We currently have 1,280 full-time equivalent staff who are undertaking this casework. The noble Baroness talks about retention; there is normal turnover of staff. We are also enhancing some of the requirements, particularly on English language, for such staff, which will come into play in this area, and across the public sector, from October 2016. It is important in any role undertaken within government and the public sector that career paths are pointed out to people—the mentoring scheme we deploy for such staff is a valuable asset in this regard.
Investigatory Powers Bill
Baroness Hamwee Excerpts(8 years, 4 months ago)
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Baroness Hamwee (LD)
My Lords, my noble friend Lord Paddick remarked to me the other day that investigatory powers should be intelligible to a 70 year-old computer-illiterate grandmother. I did wonder whether he was talking about me—although I have to say none of those characteristics applies—and was also quite concerned that he thought 70 was old, but I realised that his comment was very apt. Transparency does not mean being able to see through something but means that you should be able to see the thing itself, and know it and understand it in the context we are discussing. Every Bill throws up its own lexicon: transparency is one item in it for this Bill, as is balance, which has been mentioned several times tonight.
I am not sure we should be in the business of “balancing” privacy and security. The term “binary” has become quite common, but for these Benches, privacy and security are not binary or mutually exclusive—a point I think the noble Lord, Lord Rosser, made right at the beginning of the debate—and our aim must be to achieve both. However, we are bound to discuss privacy more than security, not least because of the old dilemma, which my noble friend Lord Oates referred to, of what an Opposition, the public and perhaps also Ministers can say in response to, “If you knew what we know”. My noble friend Lord Strasburger made a very big ask of Ministers about unacknowledged knowns and indeed unknowns. I do not want to avoid acknowledging the crucial importance of security, so will say that we are part of what RUSI called the,
“near-consensus in public opinion that there are circumstances in which law-enforcement agencies … and security and intelligence agencies require sensitive capabilities to obtain communications in order to safeguard national security, investigate crimes and protect the public”.
But that is the beginning of the story—my words, not RUSI’s—not the end.
Ministers must be in an unenviable position. It must be hard to have the agencies saying, “Yes, please”, to more and more information—of course they will say that. But does quantity affect quality and workability? I confess I have long had a mental block about these issues. I am not computer-illiterate, but neither am I very computer-literate. My lightbulb moment—or one of them, the other coming when I read the Library Note, which, I should like to put on record, was admirably clear—was when I realised that it was not entirely my fault that the technical language was blocking my thinking about the underlying issues. Language should clarify, not impede, debate and scrutiny. That is not a criticism of the drafting of the Bill, but more of the commentary around it.
There is a consumer rights issue in this as well. It is very odd and disconcerting that after you casually look something up online, you are prompted to pursue it by advertising of the product or service. I say to the noble Baroness, Lady Liddell, that I am not exalted. I appreciate the commercial realities of this, but how many people realise that in the small print, which they did not read, they have consented to information being passed on to third parties? What do you do if you read it and do not like it? Do you cut yourself off from an essential modern tool? Public services, which we are talking about—not commercial services—must be better than that.
It is particularly important to me that the citizen, who is more than a consumer, is made aware of having been subjected to the use of powers. You may be part of a large group targeted—I use the term technically—although not suspected. I say that because the corollary of the right to know is the right to challenge. Those who are entrusted with oversight need the structure and criteria that enable them to make a proper assessment.
I still have a problem with the judicial review principles, and indeed I wonder whether the filter provided by the Bill is just another mechanism to collect information, but we will come back to all that.
In the Commons, the Government made a number of commitments to consider further amendments, including commitments made to the chair of the Intelligence and Security Committee, and the noble Earl referred to several amendments that we may expect. It is important—I hope we can hear this tonight—that the House knows from the Government when they will publish their amendments or, conversely, that they inform us that they will not propose amendments on the issues they have raised and on which they have given assurances that they will consider various matters.
The Joint Committee on Human Rights—like the noble Lord, Lord Henley, I am a member—has also reported. As the noble Lord said, “due course” will bring more comments on that. The committee acknowledged that the Bill represents a significant step forwards in human rights terms, but many human rights are engaged—privacy, freedom of expression, the protection of personal data, and freedom of association, assembly, religion and movement—and any interference must of course be in accordance with the law, not only with a clear legal basis but sufficiently specific to guarantee against arbitrariness. It must also be necessary in the pursuit of a legitimate aim, as well as being proportionate. I agree with my noble friend Lord Campbell and the noble Lord, Lord Reid, that this is not a constant: life changes. That leads me to the adequacy of the safeguards, especially as the regime has not been given the cleanest bill of health by a clutch of UN special rapporteurs or the Council of Europe Commissioner for Human Rights.
However, it is not only the legislation but how the powers are used that is critical. For me, the codes of practice are less important to this debate because, as has been said, they are not amendable by Parliament, and indeed Parliament is dependent on others to check compliance with them. There is a limit to the Executive’s accountability. Accounting for one’s actions is empty if the actions themselves are not explained. As I understand the Bill, the Executive’s own proposals gag the Secretary of State with regard to that accountability.
The safeguard of and public interest in, as my noble friend Lord Thomas of Gresford put it, legal professional privilege is something that I feel particularly strongly about as a lawyer, although I have never had to get my feet wet in the cause of it. As we are all potential clients, it was predictable that it would receive a lot of attention today, and it will receive a lot in the following stages of the Bill. By some distance, we have not yet dealt with the issues of what my noble friend Lord Lester called the potentially chilling effect.
Similarly, as a politician and a citizen, I am concerned about safeguards for journalists and journalistic material. That may be the definition to pursue, but I acknowledge that there are difficulties around definitions. Journalists’ work may not all be in the public interest but much of it is, and there is a clear public interest in protecting journalistic sources. There will be a number of issues to cover, particularly internet connection records, from the point of view of service providers as well as the public. The noble Baroness, Lady Neville-Jones, referred to the intelligent and constructive engagement of the providers, and they still have significant concerns. I was interested in the points they made in briefings about extraterritoriality and the international regime, or lack of it.
And we will have the review of bulk powers, which, as the Minister says, will become more important than ever. The terms of reference for the review make it a matter for the Prime Minister as to whether the review is published. I think it would go against the spirit of the review if it were not. Tributes have been made, and rightly so, to David Anderson. I wonder, who would be David Anderson? What a responsibility we place on his shoulders. It is not for us to comment on Commons procedures, but Members of the House of Commons will not have a chance to propose amendments to the Bill in response to the review of bulk powers unless we amend it and give them that chance.
When the draft Bill was published, I worried that I was not sufficiently worried. Over the years, talking on the phone to a friend whose work has been closer to the security world than mine has ever been, we have joked about some odd interruptions and noises and said things like, “I hope whoever’s listening finds this interesting”. However, when I realised that the regime extends from what I do to who I am—my legal secrets, as my noble friend Lord Macdonald put it—my concerns fell into place. My noble friend Lord Carlile’s phrase “the legitimacy of use” is very helpful here. As I say, we will focus on internet connection records.
I said that our task is about achieving privacy and security. The next few months will be turbulent politically. Where we will end up, who knows? This certainly suggests to me that perhaps we should not wait five years for a review of the Act that this will become. Whatever the turbulence—or “disarray”, which was the rather more polite term used by the noble Baroness, Lady O’Neill—we must not be diverted from the task in “the age of anxiety”, in the phrase of the noble Lord, Lord Hennessy, and, in that of the noble Baroness, Lady Harding, in the “civilised digital world”. It is an important task.