Policing Protocol Order 2012

Lord Dear Excerpts

Wednesday 25th January 2012 Lords Chamber

[Lord Dear]

My Lords, when I spoke at Second Reading of the Police Reform and Social Responsibility Bill on 27 April last year, I described the Bill as a crucial step towards a thoroughly modernised police service. I did not say that the Bill would in itself produce that; I described it as a crucial first step. As we all know, the issue of PCCs was an essential element in the Bill. In fact, one could well say that it was the essential ingredient in that Bill, especially in so far as handling police finances and, even more importantly, the operational independence of a chief officer or interference with that.

We all remember and understand the difficulties that we had when Clause 1 was voted off the table, as it were, in Committee, and the difficulties that we had in discussing the role of PCCs in that environment. It was a lengthy and very detailed series of debates, and I will not go into them. They are fresh in our memories. But it became very obvious as we went through that series of debates that there was a need for a protocol to flesh out the detail behind what we meant by some of those terms. I personally welcome it and speak in support of it tonight.

After the General Committee debate, which took place two days ago in the other place, I ran off 23 pages of that debate on my computer and could not find a single word that passed any comment to say that the consultation process was less than robust. The Committee preoccupied itself very much with trying to tease out a definition of proper or improper political interference, which comes very close to what we are talking about tonight. But I could find no trace of any disquiet there about a lack of proper consultation. Indeed, the consultation has involved all the three existing major players; it cannot obviously go to PCCs as they do not exist yet—they have not been elected. But it involved ACPO, the Association of Police Authorities and the Association of Police Authority Chief Executives. I cannot think of anyone else that it could have gone to, and certainly ACPO is satisfied with the procedure and believed that its views were put forward in adequate fashion. I think—although at second hand, and I am subject to correction at this point—that the other two agencies felt very much the same way. So with the greatest respect, I disagree with our own House of Lords Select Committee on the Merits of Statutory Instruments, which said in paragraph 3 of the report:

“Given the constitutional importance of the governance of the police service, the Committee considers that a full consultation might have provided a more complete test of the robustness of the Protocol”.

With the greatest respect, I disagree.

Protection of Freedoms Bill

Lord Dear Excerpts

Tuesday 6th December 2011 Lords Chamber

The problem for too many victims of stalking is that being killed or maimed is a real threat. There is no point in strength there. Let us not rush this. Let us get it completely right and then do it—and do it early next year. We owe it to those who have given their lives or live in fear of them.

[Lord Dear]

My Lords, I shall be brief. I support the amendment as set out by the noble Baroness, Lady Royall of Blaisdon, who has made a very adequate case for this change. I have changed my mind on this issue over, I suppose, the past six months or so. I had for a long time thought that the current legislation, the Protection from Harassment Act, was sufficient, but I now realise that the terminology in it is too strict. The term “violence” needs to be ameliorated in some way and the wording in the amendment that refers to “fear or alarm” would take us closer to the course of conduct referred to in many parts of your Lordships' House.

This issue has grown in modern society over the past 10 or 20 years. I do not offer any suggestion as to why that has happened. Perhaps we have, paradoxically, an anonymous society on the one hand and a society with a plethora of information in it on the other. There is certainly a growth in technology and perhaps a celebrity culture. Whether celebrity is real or imagined hardly matters; the fact that it is now possible to become the focus of someone’s attention is clearly at the root of what is proposed. I believe that we need to do something to alter this very tight definition of violence. The question of whether the wording of the amendment is too prescriptive I leave for a later debate. Personally, I think that much of the legislation coming through your Lordships’ House is far too prescriptive, and that in itself presents a trap. I hope that the Minister can take away the comments of this House, including my own, to examine what has been said, and perhaps we can return to this matter for further consideration on Report. I support the amendment.

[Baroness Hamwee]

My Lords, perhaps I may raise two small points. They seem almost trivial in the context but they are important and, as the noble Baroness said earlier, the opportunities for this sort of discussion are limited to Committee. I appreciate that this is existing legislation in Scotland. My first point relates to proposed new subsection (4) in the amendment, which states,

“where A knows, or ought in all the circumstances to have known”.

The existing Section 4(2) brings in the notion of a reasonable person. I read the existing law as objective and this proposal as being subjective, and I am not sure whether it is strong enough.

My second point relates to new subsection (2) of the proposal, where it would be necessary for the course of conduct to cause “fear or alarm”. Again, I wonder whether that is strong enough. What if the victim is a particularly resilient person? Should the person engaging in the conduct be able to do so because of the toughness of the victim?

Protection of Freedoms Bill

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Tuesday 29th November 2011 Lords Chamber

[Baroness Hamwee]

The noble Lord, Lord Soley, talked about deterrence in the context of a voluntary database. I take the point about stigma, but only a little bit.

On the requirement for further evidence sought in the amendment, as the noble Lord, Lord Condon, has said, the science and the technology are both galloping forward very fast, and logically one could make an argument for continually looking for further evidence as the science goes forward and never coming to a conclusion. It is always possible to ask for more evidence, and we will hear from the Minister what evidence the Home Office has looked for. However, I would like to ask him in this context about the post-implementation review mentioned in the impact assessment. There are a number of boxes under that heading that are not completed. Perhaps he can tell the Committee something about the establishment of the criteria for the assessment under a post-implementation review, because that would be helpful.

I am not sure that the amendments in this group that seek to extend the period are entirely consistent. We are in Committee, so I understand that, but to seek to decide whether to increase or decrease the time period while at the same time calling for further evidence before implementing this part of the Bill does not quite seem to hang together. However, that is probably a picky and unworthy argument because, as my noble friend said, the noble Baroness has raised matters that are extremely important.

[Lord Dear]

My Lords, we have discussed the rapid advances in DNA technology, but a fact that noble Lords may wish to take note of is that we are literally on the brink of a breakthrough in DNA analysis whereby, although the same sample being tested in the laboratory does not produce a hit on the database, it will nevertheless produce a pretty good description of the person who has given the sample. That will move the debate into a whole new area. I say that to put the record straight on just how fast databases are moving forward.

There is no doubt that if legislated for as we are considering, DNA technology will undoubtedly bring some convictions from cold case reviews. Indeed, that has already been mentioned from the Cross Benches. However, I have to say that, as a proportion of the total number of cases dealt with and convictions brought each year, the number will be relatively very small. Undoubtedly these reviews will frequently focus on serious cases involving rape or violence where the victim has suffered enormous trauma.

Having concluded my brief opening remarks, I have little else to say other than that I support the stance taken by the noble Lord, Lord Phillips of Sudbury. There has been far too much intervention in the privacy of the individual. We are currently reading in the newspapers about the conduct of the Leveson inquiry, which is yet another example of possible intervention in another sphere. That thrust of the interventionist state into our lives is something that this Bill seeks to reverse. Although this is an emotional issue, it raises great interest in the criminal justice system and in my former service, the police service. I shall make very few new friends in the service when I say that I believe that the safeguards proposed by the Government in trying to search for this balance are appropriate. I therefore support what the noble Lord, Lord Phillips, has said as well as the general thrust of this Bill.

[The Earl of Erroll]

My Lords, I associate myself with the comments of my noble friend Lord Dear and the noble Lord, Lord Phillips of Sudbury. Certain things can go wrong all too easily. DNA is not a straight yes/no; at the end of the day, if something is done in a laboratory, you are talking about an analogue match that is reduced to certain points. We have seen sometimes the misinterpretation of fingerprints. When a computer has reduced it to X points, it is not necessarily a true match. There have been miscarriages of justice as a result. People have refused to admit mistakes later because of the tendency of the system to try to cover up its mistakes for the greater good, in order not to discredit something that is widely accepted as evidence.

I am also worried that, if DNA exists and is associated with a case, you use it to try to prove some guilt. You do not know how it got there. I might have tried on a jersey in a department store and left a couple of hairs on it. It might later have been bought by someone else and the knife that went into the person might have carried one of my hairs inside the wound. With our DNA techniques, it could be deduced that I was the person who was at the place in question—you do not know

The trouble is that, because we have an adversarial system, we do not seek to find the truth in our courts; we see who has got the best lawyers to discredit the evidence on the other side. That can be dangerous sometimes with things such as DNA, which is fairly new. We have widely different quoted figures for what an exact match is and for the probability of a match that do not take into account laboratory accuracy. We need to think about exactly how accurate it really is. You also get criminal seeding of sites, which has been going on for a long time—taking ashtrays from pubs and leaving DNA evidence elsewhere to sow false things.

What worries me, finally, is what we saw happen with RIPA—that is, function creep. This will start off in the serious crime arena and then get extended, because it is an easy way to find who was where when or who handled what. We have to be very careful about making sure that that does not happen if we are going to retain DNA as evidence. That is why I approve of the Government’s stand and of what the noble Lord, Lord Phillips, said.

We seem to treat very lightly the fact that someone should be arrested. Actually, that goes on your record and it stays there even if you are never then prosecuted or a charge is not laid properly. The fact that you have been arrested will disbar you from all sorts of things. A simple example is the American visa waiver scheme. I am fairly certain that you cannot get a US visa waiver if you have been arrested. For some people, there is no smoke without fire. We have to be very careful before thinking that just an arrest is okay and that it is all forgotten in the wash—it is not.

--- Later in debate ---

[Baroness Hamwee]

My Lords, Clause 2(2) provides for the retention of certain material,

“until the conclusion of the investigation of the offence or”,

as the case may be, the conclusion of proceedings, where proceedings are taken. My amendment seeks to define what is meant by the conclusion of an investigation for the purposes of this clause.

“Conclusion of proceedings” seems to be relatively clear. Presumably one gets to the end of a case or the end of an appeal. Alternatively, when an appeal is not possible, I suppose there is always the possibility of a case being reopened by the Criminal Cases Review Commission, but I shall not try to go there. However, we also ought to be clear about when an investigation is regarded as concluded. There has already been a good deal of reference today to cold cases. How cold does a case have to be before it is concluded? If it is cold but not solved, is it still unconcluded? I simply suggest, partly as a way of exploring this matter, that an investigation should be regarded as concluded when it is certified by the responsible chief of police. I beg to move.

[Lord Dear]

My Lords, I have the greatest respect for the noble Baroness, Lady Hamwee, but I have to say from practical experience of commanding the largest force in the British Isles other than the Metropolitan Police—having previously headed the operations department of the Metropolitan Police—that in practical terms, forgetting the philosophical benefits or disbenefits of the amendment, it does not stack up.

There are thousands of offences on police books and well over half of them remain undetected. Therefore, seeking a certificate for every single one of them when one believed that an investigation was concluded would frankly be a bureaucratic nightmare. Quite apart from that, at the very serious end of offences it is not uncommon to have 50, 80 or 100 detectives and others working on an investigation. As the case winds on, that number will be run down until, months or even years later, you finish with perhaps five or six. There will come a point when everyone will know that the investigation has stopped because they will simply have run out of avenues to explore, but in my experience no chief officer would wish to say categorically, “It is finished”, because that would be slamming a door in the face of victims. We have already spoken in your Lordships’ House about the need to balance the rights and feelings of victims among other things, and that is absolutely right. I do not think that any chief officer of police would wish to say, “We have now certified that this is finished and as far as you, the victim, are concerned—or you, the general public, are concerned—we have now closed our books”, and I do not believe that the public would wish to hear it.

Therefore, with the greatest respect and although I understand where the noble Baroness, Lady Hamwee, is coming from, on practical and philosophical grounds—and, if those fail, then certainly on grounds of sensibility to feelings—the amendment does not have my support.

Protection of Freedoms Bill

Lord Dear Excerpts

Tuesday 8th November 2011 Lords Chamber

[Lord Dear]

My Lords, I, too, join the growing chorus of support for the Bill. I support its broad thrust. I welcome it and think it is timely. I will go through the list very quickly because noble Lords have already made the points. So far as the regulation of CCTV is concerned, of course I applaud that. As to the destruction, retention and use of fingerprints and DNA samples and so on, the existing position is totally untenable and the proposals in the Bill will bring us into line with what is already happening in Scotland and will broadly support the judgment put forward by the European Court of Human Rights in the case of S and Marper v United Kingdom in 2008.

So far as local authorities are concerned and the way in which some of them have used the Regulation of Investigatory Powers Act to deal with some of their problems, if ever there was a case of sledgehammers being deployed against walnuts, I have not seen a better one. That has to be curbed. The Bill seeks to do so and I applaud it. I also support, as other Members of your Lordships’ House have, Chapter 4 of Part 5, which seeks to disregard some convictions for some homosexual acts in the past.

The issue of terrorism is closer to my own heart for professional reasons. I agree that Section 44 of the Terrorism Act 2000, providing for stop and search without reasonable suspicion, is also untenable—a word which I have used already. The move towards using Section 43 instead, where reasonable suspicion is required, is to be applauded. In particular I very firmly support the proposed reduction from 28 days to 14 days in cases of pre-charge detention of suspected terrorists. I was the noble Lord who successfully proposed the amendment to stay at 28 days in the face of a determined attempt a couple of years ago to extend the period to 42 days, so I am speaking with a particular interest at heart. I note, of course, the saving provision for 28 days in emergency circumstances. I think that that is a very sensible move.

I want to draw attention to one freedom that is not covered in the Bill: the freedom of speech, one of the most fundamental of all the freedoms that we cherish in this country, and have cherished for a very long time. I say immediately that I have no intention whatever of seeking to amend the Bill to bring something in to cover freedom of speech, but I ask noble Lords to bear with me for a very short time while I introduce the subject very briefly and give the reasons why.

In common with many other Members of your Lordships’ House and a significant number of Members of the other place, I support the removal of the word insulting from Section 5 of the Public Order Act 1986. The term,

“threatening, abusive or insulting words or behaviour”,

has been included in legislation from as far back as the Public Order Act 1936, an Act which has been steadily amended as society has become more complex. Under Section 5 of the current Act, “insulting” stands at the very bottom rung of the ladder of descending seriousness. The ladder begins at the top with Section 4 of the 1986 Act, which criminalises intentional harassment and other criminal acts, going down through Section 4A into Section 5, where no intent is required for the offence to have been committed.

I have of course oversimplified that, but it gives you a picture of descending a ladder of criminality until one reaches the very bottom rung, which is insulting behaviour. “Insulting” is obviously the least serious of the range of behaviour encompassed by the current legislation. It is now also the subject of a good deal of debate, not least because on a significant number of occasions the enforcement of the legislation, so far as it applies to insulting, is seen by many to be an impediment to the proper exercise of free speech, whether or not one supports the views expressed by some of the defendants in some of the more contentious cases that have focused attention on this issue.

In normal circumstances, I would table an amendment in Committee to seek to strike out the word insulting from Section 5 of the current Act. However, on 13 October the Government announced a consultation exercise to examine police powers for public order under three heads, one of which is to examine this very issue—the possible removal of the word insulting from Section 5. That consultation period will run until 13 January 2012. For obvious reasons it would not be sensible or proper to press for an amendment while the consultation procedure is in place. I simply ask the Minister at this stage—a stage when we are examining and discussing many other fundamental freedoms, issues such as privacy, due process, freedom from arbitrary arrest and many others—to note my remarks, to recognise the fundamental importance of freedom of speech in this country, and perhaps to endorse my remarks in welcoming the conclusion of the consultation procedure in January next year, when we might have an early opportunity to return to this issue and to debate it fully, a debate which otherwise should and, I believe, would have been featured in this Bill today. As I said, however, the Bill as it stands has my broad support and I welcome it.

Police Reform and Social Responsibility Bill

Lord Dear Excerpts

Wednesday 20th July 2011 Lords Chamber

[Lord Clinton-Davis]

I thank my noble friend for introducing this amendment. There never has been a time when it is more apposite to talk about the integrity, impartiality and effectiveness of the police force. I very much regret what has happened in the past few days. I pay tremendous tribute to my noble friend Lady Hilton of Eggardon who has just spoken. However, I recall times in the early 1960s when some of the police were not always politically impartial. I refer to the Challoner case. Throughout West End Central, there was a philosophy that the police could do anything that they liked. This was absolutely wrong. I believe that my involvement in the Challoner case was an expression of the public’s disquiet at what was happening, and I think I had every reason to feel that.

I hope that the events of the last few weeks will herald a change in the way that the police are looked at by the public because I think that it is imperative that the public should have confidence in the police.

As far as elections are concerned, I believe that we are taking a step backwards. It is inevitable that the police will be drawn into political controversy, which is not desirable. Senior police officers should represent the qualities that my noble friend’s amendment emphasises. It is very important, from the point of view of the public, that these issues should be aired. I have no hesitation in supporting what my noble friend has said. We have plenty of time for the noble Baroness to be able to prevail upon some of her colleagues in Government to change their minds, too.

[Lord Dear]

My Lords, I think that one should reflect on the fact that policing can be a very lonely business. It is undoubtedly lonely for a police constable who is alone outside a club as it is turning out at 2 o’clock in the morning and everything seems to be going out of control—some of us have been there. It is equally lonely to be in the office at midday as a chief officer of police when the world is clamouring for a press conference and you are not too sure how to handle it. In the past I have found useful Polonius’s advice to his fast-departing son in Hamlet—a long list of things that one should or should not do—which concludes:

“to thine own self be true,

And it must follow, as the night the day,

Thou canst not then be false to any man”.

Of course, that begs the question, which Shakespeare did not address, of what yardsticks you are going to use when you are being true to yourself.

To address the loneliness of policing on some occasions one should turn to the oath of office that one takes as a constable, and which binds you all the way through to the most senior of ranks. You swear or affirm that you will exercise your duties as a constable at all levels without favour, affection, malice or ill will. That is a binding principle and is a useful one to remember. I am sure that the majority of police officers remember it whenever the going is tough. The answer to the question of how you should react is that you react without favour, affection, malice or ill will. That really means impartiality.

I do not quarrel at all with the wording of the amendment. Upholding the integrity and impartiality of the office is, of course, critical. It is critical today because it is in the public focus; it is always critical at 2 am and 12 pm, as I have just said. I support the amendment in the name of the noble Baroness, Lady Browning, which refers to,

“the effective exercise of the functions of the police”.

From my point of view, the effective exercise of functions embodies, among other things, the fact that you will act impartially and according to the oath of office which binds you when you are in the police.

I suppose what I am saying, in an effort to be helpful, is that I do not quarrel at all with the wording of Amendment 3, but I have spoken on several occasions in your Lordships' House in Committee and on Report about the risk of being overprescriptive. I do not think this is overprescriptive; it spells out in greater detail what the words “effective exercise of functions” mean. For my money, I am happy to stick with the amendment tabled by the noble Baroness, Lady Browning, because, as I have said—I will not repeat myself at length—it encompasses not only the words of Polonius to his son, but, much more importantly, the wording of the oath of office. As I say, I do not quarrel with the amendment of the noble Lord, Lord Hunt, the wording of which is admirable, but I think that it is encompassed by the wording of the amendment tabled by the noble Baroness, Lady Browning.

[Lord Beecham]

My Lords, the problem with the proposition advanced by the noble Lord, Lord Dear, is that the government amendment is strictly related to the person and role of a single individual—the police commissioner. It seems to imply that it is necessary to direct the panel to support the police commissioner in the exercise of his functions as if that was an overriding consideration whereas, of course, the overriding consideration is the functioning of the police service. That is what is encompassed in the amendment of my noble friend Lord Hunt. I am surprised that the Government felt it necessary to produce the amendment in the terms that they have. It seems to see the role of the police and crime panel as the police and crime commissioner’s little helpers who are there to support him in the exercise of his functions.

Given that this is a political role, the implications around supporting the commissioner in the exercise of those functions—for example, in the run-up to an election for a police commissioner—are rather disturbing. Are we to see the police and crime panel accompanying a future Mayor of London on another occasion when the police make an early-morning arrest? Are we to have a latter-day repetition of the siege of Sidney Street, not just with an individual—the Home Secretary was involved in the Sidney Street affair—but with a police commissioner, accompanied by the police and crime panel effectively supporting him in the exercise of his functions? It is rather concerning.

My noble friend referred to the position of the chief constable in these circumstances. Surely he is also entitled, and the police force is entitled, to the support of the police and crime panel in the exercise of its functions, not simply those of the commissioner. Given that it is possible to envisage circumstances in which, in an election for a police and crime commissioner, one of the platforms of a candidate might be a wholesale criticism of the existing chief constable and an implicit threat that he might be replaced, what is the position then of the police and crime panel as regards that person being elected? The Government need to reconsider this provision very carefully. My noble friend’s amendment pitches the support where it is needed—for the police force as a whole, not for an individual, be it either the chief constable or the police and crime commissioner. That seems much the preferable course. There is an implicit danger in the Government’s amendment. I hope that on reflection they will accept that my noble friend’s amendment achieves what is probably the Government’s intention, but which might be frustrated in practice given the politicisation of the role which is being created.

Metropolitan Police Service

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Monday 18th July 2011 Lords Chamber

[Baroness Browning]

I thank my noble friend for that. The inquiry by Lord Justice Leveson will be in two parts, as noble Lords will know. We hope that some aspects of the inquiry will be moved along more quickly than others. We must let the inquiries have enough time to get the outcome of full transparency and disclosure. Therefore, I am tempted not to say that I want them to be hurried up, because we need to get this absolutely right. The Home Secretary announced an HMIC inquiry today, from which she has asked for immediate feedback later in the summer.

[Lord Dear]

My Lords, I, too, declare an interest. As some noble Lords know, I, too, served at a senior rank in the British police service. I make no apology for revisiting an issue that I raised in your Lordships' House as recently as Wednesday last week in the debate that followed the Statement on phone hacking. My contribution can be found in the Official Report of 13 July, in column 732.

I do not believe that it is unduly repetitious to remind ourselves that leadership is important in any organisation and that in the police service it is absolutely essential. Today, even more than last week, the issue is paramount. For years, successive Governments have failed to address adequately the problem of providing leaders in the police in sufficient numbers to provide a critical mass that can influence events and, in particular, ethics and attitudes in the service. Today we see the Metropolitan Police—a great force, as we all know—in what is colloquially known as “a very bad place”. We see that there is no clear succession plan in place for the commissioner and, worse, that there is a marked shortage of suitable candidates.

In the light of recent events, will the Minister go further today than the Leader of the House was able to go last week when he replied to me and give your Lordships' House a firm reassurance that, after the publication of the Winsor report at the end of the year, the Government will address the question of recruiting people of the highest quality into the police in sufficient numbers, and of their training and deployment into positions of intermediate and high rank on a structured basis. I venture to suggest that this can be implemented, notwithstanding the several reviews that have been mentioned. Can the Minister therefore indicate any appetite in Her Majesty's Government for such a review of leadership as a matter of urgency?

[Baroness Browning]

My Lords, I am grateful to the noble Lord, who, in the course of the Bill, has given advice and a very clear steer on the need for a pool of senior officers for whom leadership is a key component in their training and development. The Government take police leadership and issues affecting it very seriously. Police leadership is key to ensuring that officers across England and Wales are able to provide a high-quality service to the public. Peter Neyroud set out his views on the future of police leadership and training in his report of 5 April. The Government are currently considering the responses received during the consultation period on the report. We will set out our position in due course, and we will set out our response to the second part of Tom Winsor's report following its publication next year.

I hope the noble Lord is reassured that we are taking on board the need for leadership to be placed at the heart of policing. I have asked, during the passage of the Bill, for volunteers to come forward and advise on the development of a pool of senior officers so that, for example, when there are vacancies, there will be a good choice from as large a pool as possible of people of the right standard, qualifications and leadership skills.

Police Reform and Social Responsibility Bill

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Thursday 14th July 2011 Lords Chamber

[Lord Cormack]

My Lords, I strongly support what my noble friend Lord Marlesford has said. I took part in the Second Reading of the Bill of the noble Lord, Lord Tyler, and briefly intervened on my noble friend Lord Marlesford, but I have been speaking on this issue for many years. I raised it first in the other place when the squalid encampment first appeared in Parliament Square. All noble Lords, I am sure, believe in freedom of speech and freedom for peaceful demonstration, but that is not what we are discussing; we are discussing the defacement of a world heritage site that is the centre of our parliamentary democracy. It should not be beyond the wit of the Government to come up with a solution but, sadly, the last time a Government tried—a Government from another party—they failed. They produced draconian regulations and the squalid encampment remained.

I fear that my noble friend Lord Marlesford is only too correct in pointing to the deficiencies in the Bill as it is currently before your Lordships’ House: placing the duties of lost property custodians upon the Metropolitan Police is not the best way of using its all-too-depleted manpower. When my noble friend the Minister replies, I hope she will acknowledge the unworkability—and, indeed, the absurdity—of the proposals to which my noble friend has alluded. I hope she will accept the amendments of my noble friend Lord Marlesford. If she feels for technical reasons that she cannot do that, I hope she will agree to come back at Third Reading with a government amendment, having discussed the matter with the noble Lords, Lord Marlesford, Lord Tyler and others, and come up with a solution that we can all accept.

I have absolutely no desire to go into the Lobby against my noble friend the Minister, but unless she can either accept the amendment or promise to come back on Third Reading, after consultation with my noble friend Lord Marlesford and others, with a sensible and workable solution, the House will have no alternative but to express its concern in the only way that it can.

[Lord Dear]

My Lords, I spent a great part of my working life protecting the freedom of speech, which is one of the most important things that anyone can do in a democracy. I also vigorously resisted the thought police. I now find that I have to consider the blanket police, the cardboard box police, the sleeping bag police, and a vision of shaking people out of sleeping bags in the middle of the night and wondering whether you log them as lost or found property.

I support the amendments of the noble Lord, Lord Marlesford. It is very much in the public interest that we should do something—if not what the noble Lord suggests then something closely akin to it. As has already been alluded to, we are in the cradle of democracy. I find it difficult to walk into your Lordships’ House—as do many noble Lords—because of the mass of tourists who are here at the moment. Tourists flock from all parts of the world to look at us and the buildings around us, and they have to step over 20, 30 or more tents and placards. This is not only repugnant but quite unacceptable.

We should not overcomplicate matters, as the Government’s Bill suggests at the moment. I am a great believer in keeping things simple. The amendment of the noble Lord, Lord Marlesford, is a solution which goes a long way towards the simplicity we are looking for and we should support it. As the noble Lord, Lord Cormack, said, I hope the Minister will take this away and come back at Third Reading with something workable which is closely akin to the amendment of the noble Lord, Lord Marlesford.

[Lord Morgan]

My Lords, I will speak briefly. I certainly support the amendment. It is extremely clear, giving a clear chain of command to deal with these matters.

My complaint is not that these demonstrations are visually offensive. People who demonstrate against the established order are not likely to be immaculate in their appearance or even, with all respect, in their conception. My problem is that these demonstrations offend the right to demonstrate. It is a very precious venue for demonstrations to occur. The imperishable rights of free speech, for which people have given their lives over the centuries in this country, should be preserved. The problem is that these demonstrations take root. They took root in the most obvious, physical way by people sleeping there. That not merely causes offence, which I understand, but obstructs and cheapens the right to demonstrate.

I am all in favour of large numbers of demonstrations taking place in Parliament Square. There are lots of things in our country to demonstrate about and lots of evils to complain about. We should cherish the right to protest but I am against monopoly. This is a self-centred, self-indulgent form of monopoly that is harmful to the rights of free speech. For that reason particularly, I support the excellent amendment.

Police Reform and Social Responsibility Bill

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Wednesday 13th July 2011 Lords Chamber

[Lord Beecham]

My Lords, I correct my noble friend Lord Hunt, who has underestimated the extent of the precept as a percentage of the local council tax, which would fall potentially to the acting commissioner to levy. It is 11 per cent in England and 15.5 per cent in Wales—even greater than my noble friend indicated. I respectfully suggest that there is potentially an equal underestimate in relation to the period of vacancy. As I read the Bill, the six-month period after which a vacancy would have to be declared and a new election take place, which would add to the length of time in any event, arises in connection with incapacity. However, there are other grounds on which a vacancy might arise. In particular, there is the possibility of a police and crime commissioner being suspended. That could conceivably take an even longer period to resolve, so there is the potential for this position to be filled by a second-hand appointee, as it were, for a long period. Of course, the whole rationale of the proposal for police commissioners—flawed in the opinion of many, certainly on this side of the House—is that it is necessary to have somebody who is elected and who has a direct mandate for the purposes of exercising the functions that the Bill confers on the holder of the office.

There will be no such democratic element in the event that the procedure currently in the Bill is enacted. There would be no democratic mandate of any kind—direct or indirect. It is intolerable that that should be the case when within the police and crime panel, there will be people with a mandate—not the complete mandate—that will be claimed for the police and crime commissioner in as much as he or she will be elected for the whole force area. There will at least be some democratic mandate for those elected local councillors who will constitute the majority of members of the police and crime panel. In those circumstances I can see no argument for allowing—indeed requiring—the appointment of somebody who has no mandate when there are those available within the structure who would have at least some mandate.

I hope that the Government will think again. The noble Baroness was unlike her old self, if I may say so, at the beginning of this debate when her rather surprisingly peremptory statements were made. I would like to see her return to what your Lordships might think is the much more acceptable Browning version.

[Lord Dear]

My Lords, we are working against the clock this evening so I will not repeat any of the powerful arguments adduced so far. I say simply that I agree with them and support the amendment.

[Lord Harris of Haringey]

This is an extremely important issue and not one that we should rush through simply because we are fed up. I am sure that I have just as much stamina as the noble Baroness, Lady Browning, although I am not required to take the whole Bill through this House. We have to consider and debate these issues seriously because, after all, that is the function of this House.

This is a problem of the Government’s own making in that, having decided that police and crime commissioners—and for that matter MOPC in London, although the issues are slightly different—have substantial, individually held powers, the question then comes: what do you do in circumstances when there is a vacancy or someone needs to act while that happens? The Government cannot have it both ways. They cannot say, “Actually, it will be okay and we can have a member of the staff of the police and crime commissioner’s office to act in this function”, and at the same time say, “The police and crime commissioners are so important and will be so busy that they have to work full time on these functions”. What are they working full time on?

They are presumably setting direction—I am sure they are not intervening in operational matters because the Government are clear that they will not be doing that. They will be providing guidance on what is regarded as important to the electorate of that policing area. Among their duties will be setting the level of local taxation. There is no other area of British public life when something that impacts on taxation is not decided by people who are elected. If the noble Baroness wants to interrupt and tell me of one that I have not thought of, I would be delighted to receive it. There is no such area.

This is one of the most important decisions and it is one that will matter very much to the public in the area concerned. The task of being an elected politician is to balance what you believe are the important aspirations that you might have for the public service concerned and how much money can readily be raised in taxation. That is an issue that this and previous Governments have struggled with, and those who are actively engaged in local government struggle with it each year. You have to make a judgment and you can make it only if you see both sides of the equation. You see the side of expenditure and you see the side of what it will mean in taxation. Only somebody who is elected will have that perspective of what the public want in terms of services delivered and what they are prepared to buy through taxation. The public are not always single-minded on these matters. We are all aware of those stresses and strains, which is all the more reason why it must be an elected politician who makes that judgment. Only an elected politician with the authority of being elected can strike that balance knowing what the electorate of the area feel.

--- Later in debate ---

[Baroness Henig]

Before the Minister replies, I have a brief query that I would like to ask. Between discussing this in Committee and on Report, the Minister has laid an amendment about deputies, so I think we have covered this. I am therefore assuming that it is possible that the noble Baroness might be saying—and it was certainly what I understood when it was first mentioned—that a deputy might assume this role of acting commissioner.

When I looked at this in some depth, it seemed to me that this deputy post was not one that would be exempted from Section 2 of the Local Government and Housing Act. In other words, it was going to be a post where the incumbent would have to be politically restricted. If that was in fact the case and it was a politically restricted post, it would seem to me to be completely wrong for that person who is politically restricted to be able to act up. Am I correct in my understanding of that? When that deputy post was created, I had rather assumed that one of the reasons for it was that the deputy could act up, but having looked at it, I do not see how that could work. I would be most grateful if the noble Baroness would perhaps say something about that as well in her reply.

[Lord Dear]

If an allegation of corruption or any other crime is made against someone, whoever the officer might be, the procedure is well laid down, and I do not think that the Bill would change it in any way. The complaint is made to the chief officer of police, who has to record the complaint, which is automatically notified to the Independent Police Complaints Commission. The IPCC can take over the inquiry or supervise it, and discipline remains a matter for the chief officer. If, in the doomsday scenario, the chief officer does not deal with the complaint properly, then it is for the police authority or, in this instance, the police and crime commissioner, to step in. I do not think the procedure would be changed by the Bill.

[Lord Foulkes of Cumnock]

I fully understand. That was an exceptionally clear explanation. However, if the commissioner was not there, and someone was standing in for the commissioner, would it be appropriate for the member of the panel who is standing in for the commissioner to deal with the issue in the same way as the commissioner would?

[Lord Dear]

In the theoretical instance cited by the noble Lord, I do not think it would work that way because the chief officer of police would have to demonstrate that he had not dealt with the complaint properly, and that would take some time. We are talking about six months plus two months before an election, so by the time that doomsday scenario occurred, you would have an elected individual in place as the PCC, as I understand it.

[Baroness Browning]

My Lords, this amendment seeks to secure the appointment of an acting PCC from the panel rather than from the PCC's staff. I recognise the points made today and previously in Committee and remain open to suggestions about how we might secure a process of appointment for an acting PCC which provides the safeguards and political neutrality that I have described in previous debates and which would also provide assurance to a PCC that any appointment of a temporary stand-in would not endanger the continued delivery of the police and crime plan and objectives. I say to the noble Baroness, Lady Henig, that I am very happy to consider taking forward the situation with the deputy, but the deputy is not politically restricted.

--- Later in debate ---

[Lord Dear]

My Lords, I wonder if I might put a different gloss on the matters that we are debating in this group of amendments. We know that there is a strong likelihood that there will be a national crime agency some time in the next calendar year. We already have a discussion document about that. It refers to tasking, which I am confidently assured means direction from the centre. That means that there is bound to be tension between local and national issues, which is a good thing. It is democracy in action. It is inevitable that the inspectorate will become involved, at the behest of local or national figures. That is what it is there for and that is my experience, having served in it for more than five years, albeit some time ago.

I am concerned that the Bill is in grave danger of becoming overprescriptive. We are covering detail, which is good as far as it goes. However, to put it in the Bill rather than take it as a matter of good sense or encompass it in regulation stretches too far the issue of what should be in the Bill.

I shall refer to Amendment 235A. Having followed an all-encompassing definition of national crime, we are then invited to put in something about children, vulnerable adults, members of minority groups and so on. I do not at all underestimate the threat to those groups; terrible things are done to and with them. However, if we are to pick out those groups, why do we not put in something about drugs, counterterrorism, and the theft of high-value motor vehicles and plant, all of which happen on a European—if not a more international—scale? Why do we not put in something about cybercrime or identity theft? I shall sit down soon because I want to brief, but my point is that we should not drop into the trap of being overprescriptive. Valid though all the comments from speakers so far have been, it is asking the Bill to accept too much.

[Lord Hunt of Kings Heath]

My Lords, this has been a very interesting debate. I understand what the noble Lord, Lord Dear, is saying about the risks of overprescription. However, we are talking about strategic policing requirements. This is a matter of national importance. My noble friends have argued very well for their respective amendments.

No election will be won by a police and crime commissioner on issues to do with national policing. They will be won on local manifestos. Almost every candidate will promise more police on the beat. The question will be an auction over just how many police will be on the beat at any one time. That is fair enough and clearly responds to a general view held by many members of the public, who like the police to be visible. I do not argue with that. However, it will have some consequences. It will put the squeeze on the specialist units that the police forces have developed. It will also put the squeeze on each force’s responsibility to the national policing requirement. In some way or other, without being wholly prescriptive, we need to find a way in which to reassure Parliament that the national strategic policing requirement will be carried out as effectively as possible. It is not just terrorism; it is also about serious organised crime. My noble friends Lord Harris and Lord Foulkes were absolutely right to develop the argument about the threats that we face. We are in no position today to be complacent about those threats.

In their approach to the Bill the Government have really rather pooh-poohed the current tripartite relationship. They have criticised police authorities for a lack of visibility—although I have yet to hear any conclusive evidence put forward on why they ought to be visible. Furthermore, they believe that the tripartite arrangement is at fault because Home Secretaries have indulged in too much target-making. There will be a debate about targets and their place but there should be no doubt that in the end the Home Secretary is accountable to Parliament and ought to be accountable to Parliament for national policing strategy and the effectiveness of police forces in making a contribution to that strategy.

I agree with the noble Lord, Lord Dear, about the implications of the national crime agency. I also agree with him that some tension will be constructive—but tension could also be destructive. In the Bill we see that the requirement in relation to the strategic policing requirement is placed on chief officers of police. In exercising the functions, they must have regard to the strategic policing requirement. In other words, they can ignore it, because “have regard to” is a very weak use of parliamentary language. They have to have regard to it, alongside other matters that are placed in the Bill.

We then look to page 2 of the Bill and see that in Clause 1(4) that the,

“police and crime commissioner must … hold the chief constable to account for”,

a series of actions, but also,

“the exercise of the duty under section 37A(2) of the Police Act 1996 (duty to have regard to strategic policing requirement)”.

All we have in statute is a requirement on the police and crime commissioner to hold the chief constable to account. Then we find that the actual requirement is simply to have regard to. What if the police and commissioner does not effectively hold the chief constable to account? What if the chief constable has regard to but does not take the necessary action? Where are the safeguards and sanctions? There are none. That is really our concern.

The amendments seem to be helpful and constructive. My noble friend Lady Henig asks for a report to be prepared assessing the extent to which the strategic policing requirement has been met in each police area. That does not seem overprescriptive; it is simply giving an assurance to Parliament that there will be a process by which Her Majesty's Inspectorate of Constabulary has a means of looking at each police force area and reporting on how they are doing in their contribution to the strategic policing requirement.

My noble friend Lord Harris has another constructive amendment around the inspection programme. In our first debate the Minister was very helpful, although I did not really follow her arguments. She was very constructive in being willing to engage in the area of the acting police and crime commissioner. Nothing is more important than the national strategic policing requirement. I hope that the noble Lord, who, I suspect, is going to respond to the amendment, will be able to be as constructive as his noble friend.

Police (Detention and Bail) Bill

Lord Dear Excerpts

Tuesday 12th July 2011 Lords Chamber

[Lord Dear]

My Lords, I support the Bill. I had not expected to be able to attend your Lordships’ House today but my diary changed, and I am grateful to the House for allowing me to speak in the gap. I shall be brief.

I, too, declare an interest in that I served in a senior rank in the police service in England for many years. The noble Lords, Lord Pannick and Lord Thomas of Gresford, kicked the Minister’s shins fairly resoundingly with regard to timing and wasting time. I think that we are all concerned about that point. The noble Lord, Lord Thomas, went on to lay it on pretty thick, if I may say so, regarding what he termed lazy and oppressive police conduct in setting bail. I will come back to that in a moment. I would hope that what he outlined is the exception rather than the rule, but I am concerned on those points.

The real point of the debate today is that we are where we are and the police have a substantial problem, as my noble friend Lord Condon has outlined. The provisions of PACE, as they were understood, are still being exercised on hundreds of occasions every single day. They are part of the necessary working practice of any charge room, sometimes called a “charge suite”. Without certainty in this area, that part of the work of the police will grind very slowly—perhaps even to a complete stop.

I am not particularly concerned about retrospection in this extant case. We are trying to put the legislation back to what was generally assumed, rather than bringing in a new set of circumstances that would then impede someone ab initio.

I am concerned that the Minister has, rightly, found it necessary to talk about the review that will look at excessive and onerous conditions of bail that are being set and have been set in the past—a point made by the noble Lord, Lord Thomas—and overdue duration. That has caused me concern for some time, and the review is timely and important. I look forward to a debate, probably in the autumn or shortly after Christmas, on that very point.

On the point that we are considering today, which is putting the world back to what it was assumed to be prior to 19 May, the Bill has my full support.

Police Reform and Social Responsibility Bill

Lord Dear Excerpts

Monday 4th July 2011 Lords Chamber

[Lord Hunt of Kings Heath]

My Lords, I am conscious of the hour and the fact that our Benches are filled to hear this debate, but this is a very important group of amendments. My noble friend Lady Henig and the noble Baroness, Lady Harris, have raised some important points about that come back, really, to the consequences of having a corporation sole, in which one person has enormous power and responsibility.

My amendments relate to the powers exercised by the police and crime commissioner. Under Clause 39, “Appointment, suspension and removal of chief constables”, huge authority is given to the police and crime commissioner to appoint a chief constable and to require their suspension, resignation or retirement. When it comes to the appointment, there are some safeguards, because the police and crime panel has a veto power on the appointment. We may disagree about the number of the panel voting in favour, but it has a veto power. When it comes to suspension, retirement or requirement to retire, the safeguard is much less. Although the police and crime panel can undertake a scrutiny process, as set out in Schedule 8, in the end, the police and crime commissioner can ignore the panel's recommendation.

My worry is that the police and crime commissioner who is seeking re-election when year two or year three is coming up and who is in some trouble may well consider sacking the chief constable as a visible sign to the public that he or she is doing something. There are circumstances—my noble friends have hinted at them—where that would be a jolly good thing to do, but at other times it will not; it will be a political action by a police and crime commissioner. Where are the safeguards? In the end, there are none because, whatever the panel says, the police and crime commissioner can ignore it.

I have a series of amendments which relate not only to the chief constable but to the circumstances where the same may be required of other chief officers and also to the situation in London. Essentially, this provision should apply only where it can be shown: that there is good reason—in other words, that it is in the interests of the force, for reasons of efficiency or effectiveness; that there has been appropriate consultation with the chair of the police and crime panel; that there has been proper investigation of the circumstances leading up to such an action; and that the approval of the Secretary of State is given. If Ministers consider that that gives the Secretary of State overweening powers, I must say that I have not been persuaded that the essential nature of the tripartite arrangement—the role of the Home Secretary, the police authority and the chief constable—should be so torn up that there are no safeguards to be undertaken by the Home Secretary if the police and crime commissioner decides to take such an action where, as I said, there is virtually no effective scrutiny other than the PCP recommendations.

This is a very important group of amendments. There is unease about the power to be exercised both by the police and crime commissioner in relation to the chief constable and other senior officers and then by the chief constable in relation to those employed by him as a corporation sole. We would look to the Government to recognise those concerns and to give some reassurance.

[Lord Dear]

My Lords, two amendments in this group, Amendments 189A and 192CA, stand in my name. One refers to the appointment of a chief constable and the other to the dismissal of a chief constable.

In Amendment 189A, I suggest that new words are inserted into Schedule 8:

“A police and crime commissioner should take advice from HMCIC before making any decision as to the appointment of a chief constable”.

I shall come back to the word “should” in a moment. This relates to the suggestion that the advice from an outside agency is taken prior to any decision being made by the PCC and prior to the subsequent discussion of that by the panel. We are looking at this in the context—we have talked a lot about context through the various stages of the Bill—of the fear of the untrammelled exercise of power by the PCC. There are a good many examples over the years of police authorities looking only around their own feet rather than at the broader horizon. The risk is somewhat greater when one has a fully elected individual who has very few of the constraints that police authorities have.

Although I am absolutely sure that, in the majority of cases, if PCCs come into being, they will exercise their power sensibly, in your Lordships' House we are often preoccupied with the thought that some of them might not. In this case, the lack of exercise of the sort of expertise that one would look for would lead to the risk of a blinkered mentality or, as has already been mentioned this afternoon, a silo mentality and a failure to take account of the talent that is available in the wider sphere nationally. Quite obviously, that would lead to a very insular approach from that PCC, the appointment of safe bets, perhaps the appointment of candidates who are personally known and favoured by the PCC, and the appointment of people who are locally or regionally accented. In other words, the whole thing would be driven inwards rather than outwards.

At the moment, there is no national pool of talent within the police service, which is managed in much the same way as some multinational corporations, national organisations or the Armed Forces manage their emerging top positions. The report by Mr Neyroud, which was published earlier this year, and the report that we expect to have from Mr Winsor, which is expected at the end of this calendar year, will have an emphasis on leadership within the police service and I dare bet will propose a whole raft of new developments, formalisation, and improvement of the present structure. I hope they do. On various occasions in your Lordships’ House, I have spoken at length about the crying need for better leadership and structured leadership within the police service.

The system at the moment involves a mixture of advice given to police authorities by ACPO, by the Home Office and by the inspectorate. The inspectorate, which I have included in the amendment, offers advice at varying stages prior to the shortlist being constructed by the Home Office and then offered to the police authority. It offers advice on the shortlisting carried out by the police authority itself and then at the interview stage. My experience of seven years as an inspector of constabulary was that I was asked by police authorities to sit on a large number of appointment interviews when chief constables were being considered. Usually, the advice that I gave was followed and sometimes it was not. I did not take it personally when my advice was rejected, but I saw it as an exercise of democratic accountability in the best possible sense.