Undercover Policing

Debate between Lord Herbert of South Downs and Mark Reckless

Wednesday 13th June 2012 Westminster Hall

[Mark Reckless]

Will the Minister clarify whether RIPA also applies to ACPO’s responsibility for an undercover officer and its status as a private company? Moreover, did ACPO have any involvement in the Lambert case, or did it become involved only in later operations?

[Nick Herbert]

I will clarify that point later, but my understanding is that the accountability lies with chief constables, not ACPO. I am aware of and share my hon. Friend’s concern about ACPO and its status. I hope and believe that it will be addressed, but if there is anything further to say about the matter, I will write to him.

[Mark Reckless]

I am thinking in particular of the environmental protests at Ratcliffe-on-Soar, where it emerged that ACPO was responsible for the management of undercover officers. I am delighted that, since then, Ministers have ensured the transfer of the powers involved to the Metropolitan police.

[Nick Herbert]

My hon. Friend is correct about the responsible unit, and that important change has enhanced accountability.

RIPA applies to each of the instances that I have mentioned, because the true nature of the relationship, which involves reporting back covertly to a public authority what has been said or done, is hidden from the other person or people being talked to. In every case, RIPA requires that authorisation is given only if it is necessary and proportionate. RIPA sets out who can make a decision to deploy a covert source and for what purpose the deployment might be made. RIPA codes of practice provide practical guidance on how best to apply the regulatory framework and how to observe the human rights principles behind authorisations. External oversight and inspection are provided by the chief surveillance commissioner, and independent right of redress is provided by an investigatory tribunal for anyone who believes that they have been treated unlawfully.

That is the system, which was not in place when Lambert was deployed, but does it work? The published annual reports of the chief surveillance commissioner indicate that, in the main, it does, but that has not always been the case. That was shown graphically by the independent report produced by Her Majesty’s inspectorate of constabulary earlier this year on the deployment of undercover police officer Mark Kennedy. It showed that there had been failings in the application of the existing system and safeguards, but it went further by making a number of recommendations for ACPO to strengthen both internal review and external quality assurance of undercover officers deployed against domestic extremism. It also invited the Home Secretary to consider the arrangements for authorising the undercover police operations that present the most significant risks of intrusion. In particular, it proposed raising the internal level of police authorisations for the long-term deployments of undercover police officers under RIPA, and establishing independent, external prior approval by the chief surveillance commissioner for long-term deployments of undercover police officers.

The Home Secretary welcomed the HMIC report, and since its publication the Home Office has been working with the inspectorate, ACPO, the chief surveillance commissioner and others on how best to implement its recommendations.

Policing

Debate between Lord Herbert of South Downs and Mark Reckless

Thursday 12th January 2012 Westminster Hall

[Nick Herbert]

As I have said before, I might not have been in the House of Commons for as long as the right hon. Gentleman, but I have learned not to answer hypothetical questions, and I do not intend to answer that one. We expect that chief constables and police authorities, and in succession to them police and crime commissioners, will be incentivised and want to be part of this new arrangement for delivering IT, because it will ensure a better service for them. It is the right approach to securing better ICT in the future.

On the other side, we have the training and development function, and I am pleased that the Chair of the Select Committee and, I think, Members on both sides of the House have welcomed the idea of the creation of a professional body for policing. I am immensely encouraged that the approach has captured the enthusiasm of police leaders.

In answer to the question about the involvement of the Police Federation, it is true that the federation expressed concern about the Neyroud report, which we had commissioned and which first proposed a body of some kind, partly because it stated that effectively the Association of Chief Police Officers would be the body’s heart and soul—I think that that was the expression used. The federation expressed the concern, among others, that it would not, therefore, be a body for the rank and file.

[Mark Reckless]

I think the phrase was “both the heart and the head”.

[Nick Herbert]

I am very grateful to my hon. Friend; that was indeed the expression.

We have made it clear that we wish to reconceive the idea of a professional body for policing and to ensure that it is inclusive. That is one of the important principles that I have set out, and I have a working party looking at how we would set up such a body. I am very pleased that in spite of the continued reservations of the Police Federation, which I acknowledge because I do not wish to mislead Members, the federation’s chairman has been attending the working party meetings. The Police Superintendents Association is also represented, as are the ACPO representatives and UNISON, and we now have representation from the police and crime commissioners’ side as well. I am also seeking some independent advice for the working party.

[Nick Herbert]

I agree with the right hon. Gentleman about the value of the advice of the Police Superintendents Association. I certainly share his view and have mentioned that the association is represented, which is important. I want to make it clear that we envisage that this will be an inclusive body. It is important that we raise our sights and consider the great advantage of the creation of a professional body that will have responsibility for standards, professional development and training. That is something that I think has been absent from the policing world. It is surprising that policing does not have such a body, which will be immensely positive.

I will explain briefly why this is so important. The development of professionalism in policing—the acquisition of the right skills—is an important part of our agenda to ensure that police officers are equipped to deal with modern challenges without the kind of bureaucratic approach that we have seen in the past. If we are to develop in policing an agenda of trusting professionals and the extension of professional discretion, we must ensure alongside that that police officers are trained, equipped and incentivised in a way that reflects the exercise of professional judgment, skills and discretion that commands public confidence and trust.

[Mark Reckless]

The Minister has said that he has secured representation from the police and crime commissioners, but I am puzzled because they will not be elected until November. In his report, Mr Neyroud suggests that there could be ministerial representation on the body in charge of the professional body, but he is not so keen on the elected commissioners, whom he wants to see on a consultative panel on the side. Has that been reviewed? Will the Minister clarify his remarks?

[Nick Herbert]

I noticed my hon. Friend’s puzzlement, so I should have offered clarification. What I meant is that Kit Malthouse, the deputy Mayor of London who has responsibility for policing in London, now attends the working party that I have set up, as does the chair of the Association of Police Authorities, Mark Burns-Williamson, who is also the chair of West Yorkshire police authority. That side of the tripartite is now represented, as are the policing professionals, which is important. Moreover, on Monday the arrangements will change so that, effectively, the first police and crime commissioner will be created in London. That is what I meant.

--- Later in debate ---

[Nick Herbert]

In law, on Monday. It is up to the Mayor whether he wishes to delegate that function. That power of delegation was, of course, established by the previous Government, so I am sure that there will be no criticism of it whatsoever. It makes sense for us to ensure that the deputy Mayor of London, as the person responsible, at present, for holding to account the country’s biggest police force and a quarter of all police officers, takes part in such discussions, because he can give voice to those who hold, and who will hold, police forces to account.

[Mark Reckless]

When I was a member of the Kent police authority, I was appointed by Medway council, which is an elected body. Surely that provides an analogy with Mr Malthouse, who has been appointed by the elected Mayor. The purpose of this reform is to increase democratic accountability. Although I welcome what is happening in London, it is different from elsewhere. I am not sure that Members are convinced by the idea that someone who is merely appointed by someone who is elected, or who is an independent member of a police authority, can somehow represent, in advance, elected commissioners. To the extent that there is to be an elective impact, whether with the protocol or other developments, that should come from hon. Members, who are elected, and we ask the Minister to consider our views, rather than look to people who are appointed by others.

[Nick Herbert]

I do not consider that to be an alternative. I pay attention to all views expressed on the issues, but I certainly have no intention of placing a Member of Parliament on a working party for the development of the professional body. The working party consists of policing professionals and representatives of policing organisations. I have sought to add, in a way that is entirely sensible, those who hold police forces to account. Of course, we will continue to discuss with the Committee and with hon. Members the development of a policing professional body, which is an entirely sensible thing.

That brings me on to the second part of my speech. The first phase of the police reform agenda was about structures and that work will continue as we set up the National Crime Agency.

Oral Answers to Questions

Debate between Lord Herbert of South Downs and Mark Reckless

Monday 7th November 2011 Commons Chamber

[Nick Herbert]

I have explained that we are not in a position to reconsider the four-year funding allocation that has been made, because we have to deal with the deficit. Opposition Members simply do not seem to understand that. The police can make savings in ways that protect front-line services, as we heard earlier, and we are committed to ensuring that that continues to be the case.

[Mark Reckless (Rochester and Strood) (Con)]

In its White Paper, the Home Office said that from 2012-13, the police and crime panels would have the power to trigger a referendum on a policing precept recommended by the police and crime commissioner. When did the Secretary of State decide that that power would be better exercised by herself?

[Nick Herbert]

I do not accept the premise of my hon. Friend’s question. I have committed to meeting him to discuss the issue, but we believe it important both that the panel has the power of veto over an excessive precept set by a police and crime commissioner, which has now been legislated for, and that the public have the ability to reject an excessive precept through the referendum lock. That is the subject of separate measures that are before the House in the Localism Bill.

Police Reform and Social Responsibility Bill

Debate between Lord Herbert of South Downs and Mark Reckless

Monday 12th September 2011 Commons Chamber

[Nick Herbert]

To clarify the matter for the hon. Gentleman, the procedures do not extend to the power of the panel. If we wanted to give the panel the power of a veto, that would have to be determined by primary legislation. The matter must, therefore, be settled now. I have set out the Government’s case fully, but it seems that he disagrees with us.

[Mark Reckless]

Will my right hon. Friend confirm that what he is saying would apply also to my point? Although the Localism Bill contains mechanisms for a referendum, were we to want to use that to settle a dispute between the panel and the commissioner, the provision would have to be on the face of the Police Reform and Social Responsibility Bill or, perhaps better, the Localism Bill, for the panel rather than the Secretary of State to have that power. Without that, we are left solely with the “have regard” formulation.

[Nick Herbert]

I hope to be able to answer my hon. Friend’s question in a moment.

I had already sought to addressthe issue of the position of Cornwall as a unitary authority, which my hon. Friend the Member for North Cornwall (Dan Rogerson) raised very well with his amendment. I hope that my earlier comments about the power under the Bill will help to answer his concern.

Having spotted that the amendment did not allow the Secretary of State to impose unilaterally members who had not been proposed by the police and crime panel, the hon. Gentleman raised the interesting question of what would happen if the panel did not propose any co-opted members. He was right to suggest that we would not have the power of direction, but discussions would of course take place, and I have already indicated that we would be unhappy if a proposal for additional members of the Devon and Cornwall police and crime panel did not reflect geographical balance. We would certainly seek meetings with the relevant local authorities to discuss the issue.

--- Later in debate ---

[Mark Reckless]

There are two potential issues in the Secretary of State’s involvement. One of them is to do with setting an excessive precept level in respect of the Localism Bill, and the other arises when a panel vetoes and the commissioner “has regard to” that, and the panel and the commissioner have a dispute. My concern is that unless the commissioner or panel make a decision—although I cannot see how that can happen given the reference to “have regard”—these regulations will lead to an appeal to the Secretary of State, who will then in some respect have even greater central power than under the current system.

[Nick Herbert]

I appreciate my hon. Friend’s point to the extent that there are two checks in this process: the check that is provided by the police and crime panel, thereby giving a voice to local authorities in this matter, with every local authority in the policing area represented on the panel; and the check that is provided ultimately by the people, triggered by the Secretary of State suggesting that there may be an excessive precept and substituting, effectively, a democratic lock for an administrative lock. My hon. Friend is right that two procedures are riding side by side in this respect, and we have to work out how they fit together. We hope to achieve that through the regulations. We are, effectively, following the proposals on the democratic lock set out in the Localism Bill, but I repeat that I would be very happy to have a meeting with my hon. Friend to discuss how these regulations will be shaped and how we might establish procedures that are workable and that ensure policing does not grind to a halt if there is a dispute. I hope that what I have said reassures my hon. Friend in the interim, and I look forward to having those discussions with him.

I think I have now responded to all the issues raised in what has been a useful, if somewhat technical, debate.

Lords amendment 5 agreed to.

Lords amendments 7 to 42 agreed to.

Lords amendment 43 disagreed to.

Government amendments (a) and (b) made in lieu of Lords amendment 43.

Lords amendments 44 to 52, 54, 55, 58 and 60 to 97 agreed to.





Schedule 8

Appointment, Suspension and Removal of Senior Police Officers

Motion made, and Question put, That this House disagrees with Lords amendment 98.—(Mark Tami.)

Police Detention

Debate between Lord Herbert of South Downs and Mark Reckless

Thursday 30th June 2011 Commons Chamber

[Nick Herbert]

I am grateful to the right hon. Gentleman for his support for introducing emergency legislation, and we will, of course, discuss that as fully as possible with him and with the shadow Secretary of State, as that is the right way to proceed. The Metropolitan police has issued interim guidance on the basis of the judgment, and that is available to other forces. However, we will have further discussions with ACPO about what the appropriate guidance should be for all forces in this interim period, so that it is consistent with our and their obligation to comply with the law as now stated by the High Court. We will do everything possible to mitigate the impact of the judgment, because we want to ensure that the police are not impeded in going about their business and in dealing with criminals.

[Mark Reckless (Rochester and Strood) (Con)]

Will my right hon. Friend reflect on the relative roles of himself, Home Office officials and ACPO in respect of the advice just given to the House, and will he agree to publish the legal advice that has been provided—through ACPO in this instance, it appears? Will he also reflect on the development in the use of police bail over the past 25 years? Clearly, it has been accepted practice, but is there any evidence of a trend of suspects being put on police bail often for many months, or even years, when the police might instead be taking a more expeditious approach to their cases?

[Nick Herbert]

I am not aware of any such trend, nor am I aware of any concern in this House, or more widely, that gave rise to the decision. The judge’s decision in this instance was based on the narrow case that was before the court. So far as I am aware, there has not been any wider debate suggesting concern about the way police bail has been operated over the past 25 years. That is why we feel that it is appropriate to introduce emergency legislation. I doubt that it would be proper for ACPO to publish its legal advice, which it has received from two Queen’s counsels, but I can confirm that ACPO has written to the Home Secretary to confirm its view that emergency legislation is required. It has given a summary of counsels’ advice, which was given to it since 23 June, and that summary was sufficient to persuade it and us that it is necessary to move forward in the way I have suggested.

Police Reform and Social Responsibility Bill

Debate between Lord Herbert of South Downs and Mark Reckless

Wednesday 30th March 2011 Commons Chamber

[Nick Herbert]

First, I confirm again to the House something that has been confirmed on a number of occasions: the Bill does not change the legal position that the direction and control of forces remains with the chief constable. Therefore, the basis of the legal relationship between police authorities and chief constables is maintained in the direction of control in the Bill.

Nevertheless, there is concern about ensuring the fundamental principle of the operational independence of chief constables, which we debated at considerable length in Committee. As we discussed at some length, there is no statutory definition of operational independence, and indeed, there is general agreement that it would be unwise to attempt such a definition. The matter has been considered on a number of occasions by the courts—my hon. Friend the Member for Rochester and Strood (Mark Reckless) spoke of one key case. However, ACPO, which is concerned to ensure that the operational independence of chief officers is not in any way threatened, has said that it does not wish us to try to define it in law.

The debate on the proper role of the chief constable and the proper role of the local body that holds them to account will continue—as it does between police authorities and chief officers and others, with the matter sometimes ending up in court. That is part of what Sir Hugh Orde, the ACPO president, described—not pejoratively—as the tension that should exist in the relationship. However, as I said in Committee, to some extent, we are talking about shades of grey.

[Mark Reckless]

Is not one limitation of existing case law that an individual litigant—or a company such as International Trader’s Ferry—trying to get the chief constable to do something is different from the relationship that the Minister describes between the police authority and its statutory powers and the chief constable? The Home Affairs Committee heard from witnesses who felt that there is significant scope within the existing regime for police authorities to be more assertive in setting policy—it just happens that they have not done so.

[Nick Herbert]

My hon. Friend’s point is well made. However, the police and crime commissioner, who will have a mandate, could be more assertive. That is the basis and thrust of the chief constables’ concerns. I cited the example of London. The Mayor of London stood on a manifesto of placing uniformed officers on public transport and tackling knife crime. Whether that cut across the operational independence of the Met has been debated but not resolved, but it is significant that those things have happened, and the Metropolitan police have willingly implemented them. We must accept that, to some extent, there are areas of negotiation and shades of grey, which is why all parties agree that it would be a mistake to try to define in statute the notion of operational independence.

However, equally, we are all agreed—as I indicated on Second Reading, the Government were already minded to do this—on drawing up a protocol, as the Home Affairs Committee recommended, to try to set out the precise roles of the police and crime commissioner and the chief constable in the new arrangements, and to broaden the protocol to cover the role of the police and crime panel, given that that is new, and the role of the Home Secretary. It is worth stating that the Government’s intention in introducing that reform is not to abandon the tripartite, but to rebalance it, because we feel that it has been too distorted in the past, particularly in relation to the accrual of power by the centre and the Home Secretary.

--- Later in debate ---

[Nick Herbert]

I repeat that we do not envisage this being a statutory document. It was originally called a memorandum of understanding by the Select Committee, and I do not think that the Committee’s recommendation envisaged it being a statutory document. Its purpose is to clarify the roles and responsibilities in law. In other words, it will be seeking not to set law but to explain what the law is. The danger is that we will be drawn into a means of setting law, when all the parties involved have so far said that we should not seek to define operational independence by statute. They have said that we should leave the matter to the understanding of the courts and the existing case law.

[Mark Reckless]

Will the Minister agree to supply the document, at least in draft form, to the Home Affairs Committee as well as to the House of Lords? The Association of Chief Police Officers and the Home Office are negotiating, but should not the negotiations be for the tripartite system, although we do not yet have the elected commissioners in place?

[Nick Herbert]

First, the Association of Police Authorities is certainly involved in the drafting; it is part of the group discussing the matter. I agree that negotiations must reflect the tripartite system, and I want to reassure my hon. Friend about that. As to supplying the draft to the Home Affairs Committee, I am happy to agree. Furthermore, if my hon. Friend would like to meet me and officials to discuss it further, I think it would assist our deliberations. I would like to organise that as soon as possible, bearing in mind the considerable experience that my hon. Friend brings as a member of a police authority with a particular view.

I appreciate my hon. Friend’s purpose in proposing amendment 149, according to which

“the police and crime commissioner shall have no involvement”

in deciding whether a person is investigated or directed. In fact, that is the existing common law principle and the courts have consistently stated that the Executive must not interfere in operational law enforcement decisions, so there is no need for that to be written expressly in the Bill.

I hope that the hon. Member for Gedling will accept the good faith with which I agreed with the recommendation of the Home Affairs Select Committee. I hope he will acknowledge that I have listened to the Association of Chief Police Officers and others who have expressed concern about operational independence; restated that we do not seek to cut across that principle; and confirmed that we will bring the draft document before Parliament at the earliest possible opportunity. I appreciate that he would have liked to see it sooner, but I hope he acknowledges the very considerable steps we have taken in this regard.

Police Reform and Social Responsibility Bill

Debate between Lord Herbert of South Downs and Mark Reckless

Monday 13th December 2010 Commons Chamber

[The Minister for Policing and Criminal Justice (Nick Herbert)]

I apologise to the House for the fact that I had briefly to leave the debate. I was attending and addressing a meeting in the House of London members of the Police Superintendents Association, as were Opposition Front Benchers.

It has clearly largely been a good debate and I welcome the constructive comments that have been made and that have been reported to me. I shall attempt to respond to as many as I can either now or, if appropriate, later. The Chairman of the Home Affairs Committee, the right hon. Member for Leicester East (Keith Vaz), mentioned his report and we are paying the closest attention to its recommendations, which we think are very considered. Like the Opposition Front-Bench spokesmen, he mentioned the importance of operational independence. We all agree about that and we all want to protect it. The Chairman of the Committee suggested that a memorandum of understanding might be the means by which that could be achieved. That is a good idea and the Government have already said that we will sit down with ACPO once the Bill is enacted and agree an extra-statutory protocol—I am sure that we can discuss these issues as the Bill makes progress—that will set out the terms of agreement to ensure that operational independence is protected. There is agreement between us and ACPO—it is important that the Opposition understand this—that we should not seek to define operational independence in the Bill. That is a matter for case law.

My hon. Friend the Member for Carshalton and Wallington (Tom Brake) made a number of important points and I shall respond in detail at the appropriate time, but let me deal with two of them now. We will be engaging with the Electoral Commission on its recommendations. He asked whether the strategic policing requirement could cover issues such as business crime. That is important, but the aim of the requirement is to cover issues of national importance on which co-ordination is required, such as counter-terrorism and serious organised crime, to ensure that elected police and crime commissioners and chief constables have regard to those cross-border issues. I am not sure whether that would be appropriate for the issues he raised, but it is worth discussing.

[Mark Reckless]

On the question of operational independence, one could get the impression from Opposition Members that police forces operate and are directed in a political vacuum. Surely, it is entirely appropriate that police authorities should determine whether Tasers, for example, should be used. None of us would expect police to start using water cannon and that sort of operational tactic without political permission and oversight.

[Nick Herbert]

I strongly agree and the Home Secretary said exactly the same thing today. Such tactics are a matter for the operational responsibility of the police, but such major decisions have to be agreed with the police authorities that hold them to account locally.

My hon. Friends the Members for Stroud (Neil Carmichael) and for Blackpool North and Cleveleys (Paul Maynard) made good speeches supporting our plans to toughen alcohol licensing. I welcome the Opposition’s support for those measures, but what a far cry it is from the claims of the right hon. Member for Dulwich and West Norwood (Tessa Jowell) that Labour’s 24-hour drinking laws were about

“enriching the quality of people’s lives.”

How naive that was. We have seen the result of those laws—violence and disorder in our city and town centres. So, Labour now repudiates its ill-judged experiment with the so-called café culture, but it is clearly going to oppose the measures on police reform for opposition’s sake. That is not the position of the former Minister with responsibility for policing, the right hon. Member for Salford and Eccles (Hazel Blears), however. Based on the notes I have seen, I think she made a thoughtful speech on the importance of accountability, although we may differ on the particular.

The shadow Home Secretary’s arguments against our proposals for police and crime commissioners are deeply unconvincing and he keeps getting things wrong. He attacked our statement on police funding today and got the numbers wrong. Last week, he said that the inspectorate of constabulary’s figures were “corrupt and erroneous”, but was then forced to retract those words. Today, he told the House that police and crime commissioners would have the power “to direct” policing, but that is simply wrong. Chief constables will retain control and direction of their forces, as it says in clause 2, which he should read. We are determined to protect the operational independence of chief constables. Police and crime commissioners will be able to set the policing plan with the agreement of the chief constable but they will not direct policing and nor should they.

The shadow Home Secretary said that the commissioners will be elected solely to run policing, but that will not be their sole job. They will be police and crime commissioners with wider powers and devolved budgets from the Home Office to fight crime and engage in crime prevention with the local community. If the right hon. Gentleman has such a good case, why does he need to invent objections to the Bill? He continues to assert that the commissioners will appoint political advisers, but we have repeatedly made it clear that we will not allow that. We do not want to politicise policing and we do not want spin in policing. We will not take any lectures about political advisers and spin from the friend of McBride and Whelan.