Probation Services: Prisoner Early Release Scheme

Lord Keen of Elie Excerpts

Thursday 14th November 2024 Lords Chamber

[Lord Hanson of Flint (Lab)]

The Probation Service is asked to do an awful lot. Its first and foremost duty is to protect public safety, and to ensure the rehabilitation of people through community sentences or release mechanisms. The noble Lord will know that a sentencing review has been commissioned by the Lord Chancellor. That review is looking at long-term sentences, at short-term sentences and their effectiveness, and at the strengthening of community sentences. It is extremely important that community sentences are strong, that they are implemented and that people attend them. I hope that, further down the line in our policy development, the sentencing review delivers for victims, reducing reoffending and helping the rehabilitation of those individuals who have been convicted.

[Lord Keen of Elie (Con)]

My Lords, the early release scheme excludes prisoners serving a sentence for sexual offences, domestic abuse, terrorism and serious violent offences. Will the Minister explain why the Government do not regard all crimes of violence as serious for these purposes?

[Lord Hanson of Flint (Lab)]

I am grateful to the noble and learned Lord for his question. I think that, on reflection, he will know that, had he been at this Dispatch Box after 4 July, he would have been introducing a similar scheme to the one that the Government have currently introduced, though perhaps without the exceptions that we have made on sexual offences, domestic violence offences and serious offences. A line has to be drawn, and the Government have done so. Our prime objective is to free up prison places while ensuring that there is probation support, as indicated by the right reverend Prelate the Bishop of Gloucester, to ensure that we protect individuals on their release. I hear what the noble and learned Lord says but he knows—and the smile on his face tells me he knows—that he would have introduced a very similar scheme in this place had he been the Minister.

Telecommunications Restriction Orders (Custodial Institutions) (England and Wales) Regulations 2016

Lord Keen of Elie Excerpts

Monday 18th July 2016 Lords Chamber

Moved by

[Lord Keen of Elie]

That the draft Regulations and Orders laid before the House on 24 May, 14 and 15 June be approved.

Relevant documents: 4th Report from the Joint Committee on Statutory Instruments, 3rd Report from the Secondary Legislation Scrutiny Committee. Considered in Grand Committee on 12 July.

Motions agreed.

Policing and Crime Bill

Lord Keen of Elie Excerpts

Monday 18th July 2016 Lords Chamber

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, I do not think this is quite my swansong, but I assure noble Lords—perhaps to their relief—that my noble friend Lady Williams of Trafford will be taking up the baton on this Bill after this evening. I am sure she is looking forward to it.

I am grateful to all noble Lords who have participated in the debate and thank them for their contributions. It has been a wide-ranging debate, enhanced by the level of expertise and experience which noble Lords have in various areas touched on. It has been evident from the debate that there is a good measure of support on all sides of the House for many of the Bill’s provisions. Among those provisions which have been widely welcomed are the strengthening of the inspection framework for fire and rescue authorities, the reforms to the police complaints and discipline systems, the limitations on the use of pre-charge bail, the changes to police powers under the Mental Health Act, and the measures to protect children and vulnerable adults.

Other provisions in the Bill have had what might be described as a mixed response. I include in this category the provisions enabling police and crime commissioners to take on the responsibilities of fire and rescue authorities and those enabling chief officers to designate volunteers with a bespoke set of police powers. I will respond to some of the observations made by noble Lords and, if I do not cover every point raised, I apologise in advance. It is not because I do not consider them material, but in view of the time available I will be able to address only some of them.

I go straight to a point raised by the noble Lord, Lord Harris, who began by disclosing his knowledge of puddings and then went on to develop the point that the Bill is simply enormous—more than 300 pages, larger than the Bill that gave rise to the independence of India and Pakistan. Then, to my astonishment, he executed the most neat backward flip I have seen in this Chamber, and went on to add that there were many wasted opportunities for putting further material into the Bill. We got one after the other. This is only an estimate, but I rather think that we would have a Bill slightly longer than the Chilcot report if we had incorporated everything that he wanted us to include. Perhaps there is no harm—he complimented the industry of the Home Office and he was right to do so—but we have to try to keep the Bill within certain bounds.

I will address points mentioned by the noble Lord, Lord Rosser, and others. On Part 1, he asked whether PCCs should proceed to take over fire authorities. PCCs have been a success. One noble Lord is a PCC and another, the noble Lord, Lord Prescott, endeavoured to become one, so they have embraced the idea.

[Lord Prescott]

Sadly, it did not happen.

[Lord Keen of Elie]

I cannot account for the voters of Humberside, my Lords, but there we are.

We are developing proposals to implement the governance of single-employer models. If there is no agreement, a PCC can submit a business case to the Home Secretary. I may have misunderstood the noble Lord, Lord Bach, but there is no question of a PCC being forced to proceed with a merger. I make that absolutely clear: it is only where the PCC and local authorities cannot reach consensus that the PCC will present his case to the Home Secretary and she or he will then be required to seek an independent assessment to inform their view whether the governance change would be in the interests of economy, efficiency and effectiveness. It requires independent consideration.

The question of volunteers was raised by the noble Lord, Lord Rosser, and several other noble Lords, including the noble Lord, Lord Paddick. Just to be clear, these reforms will place the matter of decision-making about volunteers firmly in the hands of officers who will be able to determine on the basis of their professional expertise and local knowledge what powers are needed in their area and can properly be given to volunteers in their area. They will then designate staff for that purpose. Of course the staff will be trained; there is no question of untrained volunteers being brought in in that context.

The noble Lord, Lord Rosser, also raised the question of mental health provision, as did several other noble Lords, including the right reverend Prelate the Bishop of Southwark, the noble Baroness, Lady Howe, and the noble Lord, Lord Harris. To put this into context, of course a police cell is not considered a suitable place of safety. That is the impetus behind the Bill. It is only in exceptional cases with respect to adults that it would ever be contemplated. The noble Lord, Lord Harris, talked about guarantees. You cannot have guarantees at this stage. You can have provision. The Government have announced additional funding for the NHS of up to £15 million to invest in additional health-based places of safety; that provision will be available. In addition, the Bill increases the flexibility for local areas and clinical commissioning groups to explore innovative options to create additional places of safety to try to ensure that police cells are resorted to in only the most exceptional cases.

The noble Lords, Lord Rosser and Lord Prescott, raised the question of what is sometimes termed Leveson 2. As we have already made clear, there are still ongoing criminal cases relating to part 1 of the Leveson inquiry and we have always been clear that these cases, including any appeals, must conclude before we consider part 2 of that inquiry process.

The noble Lord, Lord Paddick, asked about requiring passports or other identification and suggested that this was an instance of confusion between immigration enforcement and policing. With great respect, that is not the case. These powers will only ever be employed where the police have already made an arrest on the basis that an individual is suspected of committing a criminal offence, so there is no confusion there at all. This power is given to the police post-arrest in circumstances where a crime or offence is suspected. It is appropriate and proportionate that the appropriate request may be made. The noble Baroness, Lady Hamwee, cited not only the question posed by the committee but the answer given; I do not seek to repeat that; she referred to it at length.

The noble Lord, Lord Blair, asked about firearms under Clause 37, and I undertake to write to him on that point, but he also raised a point about a lacuna with regard to specified ranks in the service. We do not accept that there is a lacuna. There may well be circumstances where the senior officer ranks could properly be filled by someone who transferred from another organisation, such as the Security Service, with the requisite experience in terrorism, for example. It would be a matter of deciding whether they had the requisite qualities and qualifications for the job. That will always be the final determining factor. It is not considered that this is simply a lacuna in the Bill.

The noble Lord, Lord Bach—in fact, I have perhaps addressed this—raised the question of whether PCCs would be forced into employing the governance and employment model. As I mentioned, that is not the case.

The noble Baroness, Lady Bakewell, asked what would occur where the boundaries of a police authority and the fire authorities did not coincide. Should that be the case, it would be for the local areas to consider how the boundaries could be changed if a PCC wished to pursue taking over responsibility for the fire and rescue service. There is provision for that. It would not be part of the business case that the PCC presented that he should amalgamate fire and rescue areas for that purpose. If it was not appropriate and if there were real issues there, clearly that would be raised in the context of the business case and it might well not be made out in those circumstances.

The noble Lord, Lord Moynihan, asked about doping. The Government are committed to tackling doping in sport and will continue to work with the UK Anti-Doping in sport stakeholders to ensure that athletes can compete in a clean sport environment. The Department for Culture, Media and Sport is currently reviewing existing anti-doping legislation and assessing whether stronger criminal sanctions are required.

The noble Baroness, Lady Howe, raised issues with regard to mental health. I hope I have touched on those with regard to places of safety. She also noted that we had reduced the time for detention from 72 to 24 hours. It is considered appropriate that that period should be determined from the time at which it is possible to place someone in a place of safety, not from the point at which they are detained. That remains the Government’s position in that context. She also asked about Clause 144 with regard to the streaming of child pornography and whether its provisions would apply to all situations, including real-time streaming. The answer is that it will apply to that situation as well.

The noble Earl, Lord Attlee, asked about his father’s Webley .455 gun.

[Earl Attlee]

My Lords, I had to declare an interest—if I did not, I would be in serious difficulty—but I was actually speaking on behalf of all people who own a deactivated firearm; they are extremely concerned about it.

[Lord Keen of Elie]

I appreciate that, and I do not seek to belittle the noble Earl’s point. Clause 114 deals with defectively deactivated firearms—that is, firearms that have not been deactivated up to the standard of EU regulations—and deals with the prohibition on the sale of such firearms. No doubt, the question of involving EU regulations in that context is a matter that will have to be addressed in due course as we negotiate the various provisions with regard to Brexit.

The noble Lord, Lord Brooke, raised questions about powdered alcohol. First, he posed the question as to why it is treated differently to psychoactive substances. Essentially, it is because there is a distinct licensing regime with respect to alcohol. The potential difficulty is over whether alcohol licensing pursuant to the 2003 Act extends to powdered alcohol, because it refers in this context to liquor. So there is a doubt as to whether you are required to be licensed to sell powdered alcohol. It is to dispel that doubt and ensure that there is a licensing regime in place that those provisions are there. I hope that assists to some extent in explaining that matter.

The noble Lord, Lord Condon, referred among other things to the question of leadership skills. Indeed, it was a point raised by the noble Earl, Lord Attlee, as well. There was a question of whether enough was being done to ensure that we had these leadership skills in place, particularly for the senior ranks of the police force. In the Leadership Review published in June 2015, the College of Policing pointed to the need to create more flexibility in police careers, and we are supporting the college in examining options to encourage greater movement in this context. We would agree with the noble Lord that it is vital that all opportunities in policing should be open to the widest pool of capable candidates, and that PCCs in particular should be encouraged to look beyond their own police authority in that context. No doubt, that point will be brought home in due course.

The noble Baroness, Lady Hamwee, referred to the question of confusion between the role of police and immigration officials. Again, I hope that I addressed that in my earlier comments.

The noble Lord, Lord Tunnicliffe, in taking us through each area of the Bill, raised a number of issues that have been touched on already by the noble Lord, Lord Rosser. He finished by referring to the question of full-cost recovery and firearms, and I am not clear as to what the position is on that but I shall write to him on it if he is pleased to receive a letter. When I say that I shall write, I mean that the noble Baroness, Lady Williams, will be pleased to write to him on that matter in due course—thereby committing my noble friend to that which she had not intended when she first entered the Chamber this evening.

I appreciate that a number of additional points were raised—

[Lord Rosser (Lab)]

Could the noble and learned Lord clarify one point? When he was talking about volunteers, he said that it would be a matter for the chief officer as to how they would be used or deployed. Does that mean that a police and crime commissioner has no say over the extent to which volunteers will be used in his or her police force, or the kind of duties that they will undertake? If that is the case, and if a police and crime commissioner has been elected on a platform of saying in their electoral address that volunteers are being used too extensively or not extensively enough, that is meaningless because the PCC has no say—it is entirely a matter for the chief officer.

[Lord Keen of Elie]

No, it would not be a binary or a black-and-white issue. If it was an operational matter—that is, deployment—it would be for the chief officer of police. But in the wider issues that arise with regard to whether you deploy volunteers within a force the PCC would, of course, take an interest. When it comes down to operational matters such as deployment, and a particular deployment, clearly it would be a matter for the chief officer of police. I hope that that assists the noble Lord.

I am conscious that I have not been able to respond to all the points raised in the debate, and we will seek to write to noble Lords who have raised other issues. The Bill will enhance the efficiency and effectiveness of the police and fire and rescue services. It will strengthen democratic accountability. We believe that it will build public confidence and ensure that the right balance is struck between police powers and the rights of individuals. While we will undoubtedly continue to debate the detailed proposals in the Bill, I am sure that the whole House will support those outcomes. On that basis, I commend the Bill to the House.

Bill read a second time and committed to a Committee of the Whole House.

Brexit: Role of Parliament

Lord Keen of Elie Excerpts

Monday 18th July 2016 Lords Chamber

[Lord Tyler]

To ask Her Majesty’s Government what assessment they have made of the stage, or stages, at which Parliament’s authority should be sought as part of the negotiation for leaving the European Union.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, Parliament will have a role in making sure that we find the best way forward. The Department for Exiting the European Union will consider the detailed arrangements to provide for that.

[Lord Tyler (LD)]

My Lords, this is not just a matter of the triggering of Article 50; the whole process ahead of us is a matter of concern to both Houses of Parliament. Does the Minister recall that throughout the referendum campaign there were constant calls to restore the sovereignty of the British Parliament, not least from Messrs Davis, Fox and Johnson? We also were told regularly that we should “take back control”. Who is in control? Is it the British Parliament? Who is answerable to the British Parliament? Is it one of those three? Can the Minister explain precisely which provisions of Part 2 of the Constitutional Reform and Governance Act 2010 will be applied to this process?

[Lord Keen of Elie]

My Lords, Parliament is sovereign. But the Executive has certain prerogative powers that it exercises in international legal matters, including the making and unmaking of treaties. That remains the position.

[Lord Lawson of Blaby (Con)]

My Lords, can my noble friend remind me: was it not a decision of Parliament, by an overwhelming majority, that this important issue should be decided by a referendum of the British people?

[Lord Keen of Elie]

That is of course the case.

[Lord Bilimoria (CB)]

My Lords, the Prime Minister, in her wisdom, has appointed three Brexiteers to take us out of the European Union. Their motto must be, “All for one and none for all”. One of the main roles of this House is as a check and balance on the other place. Surely it is imperative that both Houses must have a say at every stage, whether it is Article 50 or beyond.

[Lord Keen of Elie]

With respect, the Government’s position is that there is no legal obligation to consult Parliament on the triggering of Article 50. That is, of course, the subject of challenge in the courts. Indeed, there will be a directions hearing in the Administrative Court tomorrow in respect of one of those claims.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, the referendum campaigns were both all-party. The challenge now falls to all of us to implement the result of that referendum. Will the Minister outline the Government’s plans to engage all parties, and indeed the Cross Benches, in the discussions that now need to take place?

[Lord Keen of Elie]

The Prime Minister has been very clear that it will take time for the UK Government to agree their position for negotiations in respect of the exit from Europe. They will consult widely, not only with all Westminster governmental institutions but also with the devolved Administrations, including the Scottish Parliament.

[Baroness Ludford (LD)]

My Lords, the Prime Minister has apparently promised a partnership involvement for the Scottish Government in Brexit negotiations. Why will the Government not show the same degree of respect to this Westminster Parliament, instead of offering the mere debate and discussions—crumbs off the table—that were envisaged in the response to the Urgent Question last week and, indeed, just now by the noble Lord, Lord Bridges, who said that there was no legal obligation to consult Parliament, as if that was the end of the story? Why can we not get the same respect as the Scottish Government?

[Lord Keen of Elie]

The Prime Minister has clearly extended the same respect to this Parliament as she has to the Scottish Parliament. The Prime Minister has also said that we will not trigger Article 50 until we have a UK approach and objectives. That will be the product of consultation with all these parties.

[Lord Spicer (Con)]

My Lords, in answer to my noble friend Lord Lawson, the Minister confirmed that parliamentary authority was at the root of the referendum itself. Therefore, surely, in answer to the noble Lord, Lord Tyler, he has to accept that it is the essence of the entire process.

[Lord Keen of Elie]

The referendum was an exercise in democracy, in which 17.5 million people cast their vote to exit the European Union.

[Lord Wigley (PC)]

My Lords, while it is perfectly clear that the vote in the referendum was to change our relationship with Europe, what was not clear were the alternatives that were being discussed. Is there not a duty on the Government to bring before Parliament a Green Paper or White Paper outlining the alternatives, with the pros and cons, so that there can be a proper debate before decisions are taken?

[Lord Keen of Elie]

The Government have established the Department for Exiting the European Union to form a view as to the basis on which we do exit the European Union.

[Lord Grocott (Lab)]

Like many others in this House, I had the pleasure of sitting through the whole Committee stage of the European Union Referendum Bill. As far as I can discover from Hansard, at no stage was it suggested that it was just an advisory referendum that was being established, much less that Governments subsequently would not need to take account of the decision made by the British people. Does the Minister agree with me that, with such authority having been given by Parliament to the British people and the British people having declared clearly their view on the specific question being asked, for either House, but, I must say, more specifically this House, of which I am very fond, to decide that it would in any substantial way—of course, one can look at the detail—thwart the decision of the British people would be a very unsatisfactory road down which to travel?

[Lord Keen of Elie]

It is not a road that this Government intend to go down.

[Lord Cormack (Con)]

My Lords, abrogating parliamentary responsibility is not thwarting the British people. I put it to my noble and learned friend that Parliament decided that there should be an advisory referendum. It is Parliament’s duty to listen carefully to the advice but not to remove itself from the decision-making process.

[Lord Keen of Elie]

Parliament passed a referendum Act; the people spoke.

[Baroness Farrington of Ribbleton (Lab)]

My Lords, would the Minister care to be more specific on the issue of reaching the conclusion on what should happen with Brexit—what the terms will be et cetera? He referred to consultation. Did he mean consultation after the Government have decided what the terms are, or will Members of the Commons, the Lords and the Assemblies be consulted before consultation is taken more generally? Is it just a government decision as to how it happens?

[Lord Keen of Elie]

There will be an ongoing process of consultation with all interested parties, including the devolved Administrations, so that we can arrive at a suitable conclusion as to how we proceed with Article 50 and our departure from the European Union.

Policing and Crime Bill

Lord Keen of Elie Excerpts

Monday 18th July 2016 Lords Chamber

Moved by

[Lord Keen of Elie]

That the Bill be now read a second time.

Relevant document: 3rd Report from the Delegated Powers Committee

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, policing in England and Wales has been transformed over the past six years. There has been a step change in the way police forces are held to account. In May, nearly 9 million people voted in the second elections for police and crime commissioners, and I am pleased that one of our number, the noble Lord, Lord Bach, is now one of 41 police and crime commissioners setting local policing priorities and visibly holding their police force to account.

We have enhanced the capacity of the police to respond to serious and organised crime through the creation of the National Crime Agency. We are strengthening the professionalism of police forces through the work of the College of Policing. When things go wrong, we have substantially enhanced the ability of the Independent Police Complaints Commission to independently investigate the most serious complaints made against the police. Much of this transformation has happened over the period of the last Parliament, during which police forces made a £1.5 billion contribution in cash terms to the reduction in the deficit but at the same time continued to cut crime, by over a quarter since 2010, according to the independent Crime Survey for England and Wales.

We are under no illusions that there is more to do. There are still far too many victims of crime, and police forces continue to face many challenges and demands on their necessarily finite resources. We need to drive further reform in order to build more capacity and capability to tackle the scourges of child sexual exploitation, modern slavery, online fraud, terrorism and the many other threats to the peace and security of our communities. The provisions of this Policing and Crime Bill will make an important contribution to that end.

It has long been accepted that the fight against crime and keeping our communities safe are not the responsibilities of the police alone. Police forces need to work closely with many other partners to deliver these shared objectives. Working collaboratively with other agencies can secure better outcomes for the public and at a reduced cost. We have seen some good examples of this in the collaborations up and down the country between the three emergency services. In Hampshire, the police, fire and rescue service and county council have integrated their back office functions, including HR, procurement and property services. In January, a joint police, fire and ambulance facility was opened in the town of Poynton in Cheshire, and in Durham, tri-service community safety responders have been trained to act as police community support officers, retained firefighters and community first responders for the ambulance service.

As welcome as these and other similar initiatives are, it is clear that there is scope for far greater joint working between the emergency services to improve front-line services and deliver greater value for money. Accordingly, Part 1 of the Bill introduces a high-level duty on the emergency services to collaborate to help maximise opportunities for improving efficiency and effectiveness.

However, this is not simply about value for money for the taxpayer. These reforms will also extend the police and crime commissioner model to fire and rescue services. The benefits of a having a single, visible, directly elected individual who can hold the fire and rescue service to account are clear. So, Part 1 of the Bill will also enable a police and crime commissioner to take on the responsibilities of the fire and rescue authority where a local case is made. Police and crime commissioners will be able to take this governance model a step further by adopting the single employer model, which will enable a single chief officer for both the police force and the fire and rescue service to maximise efficiencies through the integration of back- office functions.

Let me be clear: these provisions do not provide for the takeover of one emergency service by another. The important distinction between operational policing and firefighting will be maintained, and the Bill’s provisions will ensure that the funding for the two services, while it can be spent on matters of joint benefit, will continue to be accounted for separately. If the existing and new PCC-style fire and rescue authorities are effectively to hold fire and rescue services to account and drive improvement, they need clear, robust and independently verified information about their performance. The existing peer review arrangements do not satisfy those requirements.

That is why the then Home Secretary announced in May that she intended to bring forward proposals to establish a rigorous and independent inspection regime for fire and rescue in England. As a precursor to that, Part 1 of the Bill also strengthens the existing but dormant inspection framework provided for in the Fire and Rescue Services Act 2004. It does so by providing for the appointment of a chief fire and rescue inspector for England, charged with preparing an inspection programme and ensuring that fire and rescue inspectors have the necessary powers to enter premises and obtain the information they need to report on the efficiency and effectiveness of fire and rescue services.

Turning to Part 2 of the Bill, I have already alluded to the significant additional resources we have invested in the Independent Police Complaints Commission to enable it, rather than individual police forces, to investigate all serious and sensitive complaints made against police officers and police staff. The lack of independence in the way serious complaints were investigated was, and is, only one of a number of legitimate concerns that have been voiced about how the police complaints system has operated. The system has been viewed as too adversarial, too complex, too slow and lacking impartiality, given that many appeals are handled in-force.

The provisions in Part 2 address these deficiencies, including strengthening police and crime commissioners’ oversight role in the local complaints system and making them the appellate body for those appeals currently heard by chief constables. We are also simplifying the appeal process by replacing five separate appeal rights with a single review at the conclusion of the complaint. The reformed system will also encourage the timely resolution of customer-service issues by expressly providing for low-level matters to be dealt with outside the formal complaints process.

In moving from a system where the IPCC conducted a little over 100 independent investigations in 2013-14 to one where this figure has increased fivefold, it is clear that the IPCC, too, must change. Following an independent review, it is apparent that the existing commissioner-based governance model is not sustainable—a conclusion shared by the IPCC. In its place, the Bill provides for the appointment of a single executive head of the organisation—the director-general—who will have ultimate responsibility for all case-working decisions. Corporate governance will be provided by a board comprising a majority of non-executive directors. In recognition of these new governance arrangements, we are changing the name of the IPCC to the Office for Police Conduct.

Part 2 also contains some important reforms of the police disciplinary arrangements. I am sure the whole House would agree that it cannot be right that a police officer, knowing that he or she is to be the subject of a serious complaint, can avoid being held to account by resigning or retiring from the force. To address this, the Bill and accompanying regulations will enable disciplinary action to be taken where a serious allegation is received within 12 months of an officer leaving a force. If, in such a case, gross misconduct is proven, the officer can then be barred from serving in any police force.

We believe a 12-month cut-off is both fair and proportionate, but we have listened to the representations from the Official Opposition and others who have argued for this period to be extended. In response, the Government are committed to bringing forward an amendment in Committee that will, exceptionally, allow for proceedings to be brought later in the most serious misconduct cases which are likely to do serious and lasting damage to the reputation of the police force or policing more generally.

Part 3 is designed to create a more skilled and effective police workforce. Police staff and volunteers have for many years worked alongside warranted officers to help keep our communities safe, but the current legislation constrains chief constables in how they can make best use of the staff available to them. To overcome these barriers, the Bill will confer on chief officers greater flexibility in the way they designate operational staff with police powers. Instead of a current prescribed list of powers that can be conferred on police staff, chief constables will be able to designate suitably trained and qualified staff with any of the powers of a constable, with the exception of those expressly reserved for warranted officers. This list of “core” powers, such as powers of arrest and stop and search, are the most intrusive. It is right that they continue to be reserved for fully trained police officers.

Under these new arrangements, it will also be open to chief officers to designate volunteers with powers appropriate to their role. We should be doing more to promote volunteering. If public-spirited individuals want to help keep their community safe by volunteering as a community support officer, or by putting their IT or forensic accountancy skills to good use, they should be allowed to do so. It simply makes no sense that the law enables a volunteer to serve as a special constable, with all the powers of a police officer, but in any other volunteering role in policing they cannot be designated with any powers whatever.

Part 4 relates to police powers. Where there is a well-founded operational case, the Government will act to address gaps in the ability of the police and prosecutors to prevent, detect, investigate and prosecute crime. Accordingly, this part strengthens police maritime and cross-border enforcement powers, and enables the police to retain DNA profiles and fingerprints on the basis of a conviction outside of England and Wales.

Equally, where there is evidence that police powers are being inappropriately used or misapplied, we will act to protect the rights of the individual. The police approach to the use of pre-charge bail is a case in point. There have been too many instances where individuals have been left subject to pre-charge bail for many months—in some cases, years—only for no charges to follow. During this time, they may have been subject to onerous conditions, restricting their liberty and causing added stress. Of course, the police and prosecutors need adequate time to gather and weigh the evidence, but there must be checks and balances so that interference with the rights of individuals who have not been charged or convicted of any offence is kept to an absolute minimum.

To this end, the Bill introduces a presumption that an individual subject to an ongoing investigation will be released without bail. Where pre-charge bail is both necessary and proportionate, it will normally last no longer than 28 days, with any extension beyond three months being subject to judicial approval. As now, the police will be able to attach necessary and proportionate conditions to pre-charge bail. Where these are breached, it is open to the police to re-arrest the suspect but in the generality of cases we do not believe it proportionate to make breach a criminal offence. Those arrested for a terrorism offence and bailed under PACE are, however, a special case. Given the continued draw of Daesh, there is a particular risk that someone bailed in these circumstances will seek to flee the country. Consequently, in such cases the Bill makes it an offence to breach pre-charge bail conditions related to travel. Of course, such a sanction will not, on its own, deter those who are determined to leave the jurisdiction. That is why the operational guidance used by the police has been updated to ensure that information relating to such individuals is shared in a timely and effective way with other agencies to stop travel at the border.

Part 4 of the Bill also seeks to transform the experience of those who have committed no crime but who come into contact with the police having suffered a mental health crisis. Such individuals must have their mental health needs assessed as quickly as possible by a mental health professional in an appropriate place of safety. While significant progress has been made in recent years to reduce the use of police stations as a place of safety, it is clear that in some parts of the country a police cell is too often used as a first, not last, resort. The Bill therefore prohibits the use of police stations as a place of safety for children and young people under 18 and ensures that, in relation to adults, they will be used only in exceptional circumstances. The Department of Health is investing up to £15 million this year in the provision of health-based places of safety but the Bill also affords greater flexibility to use other suitable premises in appropriate cases. We are also reducing the maximum period of detention under Sections 135 and 136 of the Mental Health Act 1983 from 72 hours to 24 hours.

Part 6 of the Bill seeks to close a number of loopholes in the Firearms Act 1968 which can be exploited for criminal ends. The Government fully accept that there is a strong case for the codification of firearms legislation but such an exercise will necessarily take some time. In the meantime, the Law Commission identified a number of defects in the law which are open to abuse. It is these that the Bill seeks to tackle. In particular, Part 6 now seeks to provide a definition of “lethality”, define what constitutes a “component part” of a firearm and provide greater clarity for both collectors and the police as to what constitutes an “antique firearm”. Part 6 will also ensure that defence companies and others who require a prohibited weapons licence under Section 5 of the 1968 Act meet the full cost of such licences rather than the cost falling, as now, to the taxpayer. This change does not affect the fees charged to individual firearm and shotgun certificate holders. This part will also enable the Home Secretary to issue statutory guidance to the police on the exercise of their functions under the 1968 Act. This will ensure that the highest standards of public safety are maintained when the police are determining the suitability of an individual to hold a firearm or shotgun certificate.

The legislative framework governing the sale and supply of alcohol is in a rather better state, having been completely overhauled in the Licensing Act 2003. Nevertheless, that is still 13 years ago and it is right that here, too, we seek to update and improve the legislation in the light of experience. Among other things, Part 7 of the Bill will strengthen the powers of licensing authorities to revoke or suspend a personal licence where the licensee has been convicted of a relevant offence. Part 7 will also ensure that powdered alcohol is covered by the licensing regime—something I know will be welcomed by the noble Lord, Lord Brooke, who previously raised this issue. I know that a committee of your Lordships’ House chaired by my noble friend Lady McIntosh of Pickering is currently undertaking a post-legislative review of the Licensing Act and I look forward to seeing the committee’s conclusions and recommendations when it reports next March.

Part 8 of the Bill strengthens the arrangements for implementing and enforcing UN and other financial sanctions, including by providing for new administrative monetary penalties and by increasing the maximum sentence the courts may impose following a conviction for breaching such sanctions. The UK currently gives effect to UN sanctions by way of regulations made under the European Communities Act 1972. How we implement UN sanctions in the future is one of the many issues that we will need to work through as a result of the decision taken by the British people to leave the EU. What is clear is that financial sanctions are, and will remain, an important foreign policy and national security tool and, as such, we need to ensure that they are robustly enforced however we give effect to them in this country.

Part 9 includes some further measures to help protect our borders. Establishing the nationality of individuals as early as possible in the criminal justice process increases the prospect of being able to remove foreign national offenders. Clauses 139 to 141, which introduce a requirement on arrested persons and defendants in criminal proceedings to state their nationality, are directed to this end. I can assure noble Lords that the provision in Clause 139 does not amount to another stop-and-search power. In order to exercise the new power, the police must already have arrested the person on the basis of having reasonable grounds to suspect that he or she has committed a criminal offence.

Finally, Part 9 will also strengthen the law to help protect children and vulnerable adults. The amendment to the Sexual Offences Act will ensure that behaviour relating to the live streaming or transmission of images of child sexual abuse is caught by relevant offences in that Act. The new power to issue statutory guidance to local licensing authorities will help safeguard the users of taxis and private hire vehicles. And the introduction of lifelong anonymity for the victims of forced marriage will, we believe, encourage more victims to come forward and thereby help bring to justice the perpetrators of such crimes.

I am conscious that this is a wide-ranging Bill, but its purpose is clear. The measures in this Bill will support the continued transformation of policing by improving efficiency, strengthening accountability and building public confidence. It is only by continuing to drive these reforms that the police will be better able to deliver their core objective of cutting crime and keeping communities safe. I commend the Bill to the House.

EU Citizens in the UK

Lord Keen of Elie Excerpts

Thursday 14th July 2016 Lords Chamber

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, there are two things that I cannot clarify: the first is the Question that the noble Lord, Lord Lucas, has asked, which I will address, and the other is my position as I stand before your Lordships. I shall pick up a number of points made by the noble Lord, Lord Rosser. I acknowledge his expertise in the matter of political party splits, but I cannot accept his disdain for popular democracy. It was not a party referendum; it was a British referendum—a United Kingdom referendum.

I thank the noble Lord, Lord Lucas, as have others, for taking the time to table this debate on such an important topic. The Government are listening to the concerns that have been raised in this House, and across the country, on this issue. It is the Government’s intent to provide reassurance to all those in the UK. It is appropriate that we protect the rights of EU citizens in the UK and provide them with the security of knowing that they can continue to practise, work, live and study here.

These are, however, unprecedented circumstances, and we must now reflect on the situation that this country has voted for. There can be no doubt that the 3 million EU nationals currently in the UK make an invaluable contribution to our economy, our society and indeed our daily lives. As the noble Lord, Lord Berkeley, observed, people from the EU provide vital services to this country, not only to businesses but to our public sector, where nearly 250,000 employees are EU nationals. They are our doctors, nurses, teachers and carers. In the NHS alone, almost one in 10 doctors and one in 15 nurses are from an EU country. This Government are immensely grateful to EU nationals for the role that they play in making our country great, and we continue to welcome them to the UK. People from all around the country, including noble Lords and our colleagues in the other place, will have wives, husbands, parents and friends who are EU nationals. They are pillars of our communities and held dear by many.

It is precisely because of this that the Government want to be able to guarantee the status of EU nationals who are living in the UK, and we are confident that we will be able to do that. However, we must also have the same rights for British nationals living in European countries, who are contributing to their economies and societies. It will be an early objective for the Government to achieve these things together.

I reassure noble Lords that the Government respect that this is an uncertain and distressful time for EU nationals in the United Kingdom and UK nationals who have made their lives in other member states. This country has always been compassionate in dealing with people, irrespective of whether they are from the EU or outside it. These principles define us as a nation and will guide us through future discussions with Europe.

I reiterate the remarks the Immigration Minister made in the other place. This does not mean that the Government view EU citizens as bargaining chips. Far from it—in the approach the Government take and the agreements we make we will never treat EU citizens in such a way. As the UK Government have made clear, there will, in any event, be no immediate changes in the circumstances of European nationals in the United Kingdom, and currently they can continue to enter, live, work and study in the United Kingdom as they did before the referendum. The UK currently remains in the EU. We remain subject to EU legislation until we have left the EU, and this includes the legal framework on free movement. There is no current requirement for EU nationals to apply for documentation from the Home Office to acquire this status.

It has been suggested here today and repeatedly over the last fortnight that the Government could fully guarantee EU nationals living in the United Kingdom the right to stay. This sounds so simple yet, as soon as you scratch the surface, it is in fact fiendishly complicated. When one says “guarantee rights”, do noble Lords seek to preserve the essence of the status of these individuals or the legal and operational system which underpins them? Another question is: from when should we make these guarantees? For example, would they be guaranteed only to those residing in the United Kingdom before the referendum result was announced, as was suggested by one noble Lord? What about the EU nationals who arrived later that day, or last week? Or would it be a date in the future, the date that Article 50 is invoked, the date the exit treaty is signed, or perhaps when it comes into force?

Exactly what rights are we talking about? This issue is not simply about the immigration status of an individual. Under EU free movement law, EU citizens’ rights are far broader than just the right to reside in the United Kingdom. For example, there are rights to work or be self-employed, to study, entitlements to benefits and pensions, and rights of access to public services and to run a business. EU nationals also have rights to be joined by family members and extended family members, in some cases from countries outside the EU. There are also rights for non-EU parents of EU children and for those who are married to EU nationals, or indeed for those who are divorced from EU nationals. In addition, what will we do about those who are subject to a deportation order, an appeal, or where appeal rights have not been exhausted? It is not therefore a simple binary question of whether we should guarantee rights, as under that there are a range of scenarios and considerations.

Of course, these rights do not just extend to EU citizens. As noble Lords are aware, they extend to citizens of the EEA and to Swiss nationals. All that has to be taken into consideration as well. Furthermore, these rights need to be considered in the context of the many different situations people face in real life; for example, an EU national who has just lost their job, or who has just arrived and is not yet into the period where they must exercise treaty rights—bearing in mind that they can be here for three months without employment and then have a further three months as a jobseeker. What will their status be if they arrived last week or arrive next week? What will be the status of an EU national who has just divorced a British citizen, or has just retired? The list is extensive.

Finally, once we have settled all that, how do we determine who these people are? Currently EU nationals are not required to register with the UK authorities to enjoy basic EU rights to reside, so we will need to work out how we identify fairly and properly the people who are affected by this.

[Baroness Ludford]

Surely that is why the Government are the Government—they have to work out all those difficult details. We are asking for the broad picture: guarantee the rights of those already here. Indeed it is hugely complicated—that is why leaving is incredibly complicated—but we are asking the Government to be the Government and sort that out.

[Lord Keen of Elie]

But you have to work out the complex details, which the noble Baroness, Lady Ludford, acknowledged, before you can come to a conclusion as to how you will deal with the matter. You cannot say in broad terms, “We give you a guarantee”, when you do not know to whom you are giving the guarantee or how it will work. As the noble Baroness, Lady Ludford, has raised certain matters, I will make one observation. She referred to the Vienna convention, meaning the Vienna convention on treaties, and alluded to the fact that that may preserve prior rights created by international treaty. I assume that she had in mind Article 70(1) of that convention. However, I point out that Article 70 preserves prior acquired rights under international treaties but applies only to the rights and obligations of states, not individuals, and therefore would have no application in this context.

As the noble Baroness, Lady Ludford, anticipates, the Government will need to undertake comprehensive work to examine each of these rights, and the different circumstances in which people find themselves, to ensure that there are no unforeseen or unintended consequences. That work will be led by the European unit, which is being established under the present Government, which will work in close consultation with all government departments that have an interest in this matter. As I have said throughout this debate, the protection of the rights of EU nationals and those British nationals who live in the EU will be at the heart of future discussions with our European partners, and EU nationals will continue to be welcome in the United Kingdom for so long as we remain members of the EU.

EU nationals have our full and unreserved reassurance that their right to enter, work, study and live in the United Kingdom remains unchanged and that they continue to be welcome here. Of course we value the tremendous contribution they make every day, up and down the country. Given that both the UK and EU want to maintain a close relationship, we are confident that we will work together and that both EU and British citizens will be protected through a reciprocal arrangement. We want to be able to conclude this matter as quickly as possible, and the new Prime Minister has been clear that resolving this issue is a priority. The Government keep the protection of the interests of EU nationals and British nationals alike at the forefront of their mind and we are determined to secure the best outcomes for both.

Orgreave: Inquiry

Lord Keen of Elie Excerpts

Wednesday 13th July 2016 Lords Chamber

[Lord Balfe]

To ask Her Majesty’s Government whether they have yet decided whether there will be an inquiry into police actions during the Orgreave miners clash.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, the Home Secretary has been considering a submission from campaigners on the need for an inquiry into the events at Orgreave. The IPCC is working with the CPS to assess whether material related to the policing of Orgreave is relevant to the Hillsborough criminal investigations, and decisions have yet to be made on whether any criminal proceedings will be brought as a result. The Government’s position will be announced to Parliament after this.

[Lord Balfe (Con)]

My Lords, I thank the Minister for his response. These incidents go back to 1984, and we have had answers from the Government which have not taken us very far forward on a number of occasions. On 5 February, in another place, it was said that the government position would be announced “in due course”; on 12 May, it was “in the near future”; and on 6 June we were back to “in due course”. On 13 June, the Home Secretary was,

“looking at it at the moment”.—[Official Report, Commons, 13/6/16; col. 1429.]

We are dealing here with a police force which has, shall we say, not come out too well from the Hillsborough disaster. Clearly there are questions that need to be looked at. Could the Minister urge whoever is the new Home Secretary—this is one job we know will change—to look at this urgently with a view to giving some relief to the many families involved?

[Lord Keen of Elie]

There is, of course, a desire to respond to this as soon as possible, but perhaps I could put it into context. Following the conclusion of the inquests on 26 April, the IPCC commissioned a barrister to go through some 10,000 documents that had been provided by South Yorkshire Police in the context of the Orgreave investigation. The IPCC told Home Office officials that if it announced any action to set up an inquiry or other investigation relating to Orgreave, it would have an impact on the Hillsborough investigation. It is for that reason that the decision will be taken only once that part has been concluded.

[Lord Morgan (Lab)]

My Lords—

[Lord Rosser (Lab)]

My Lords, could the Minister just confirm that media reports have revealed the previously redacted sections of the Independent Police Complaints Commission report from June of last year, which exposed striking similarities between the personnel and alleged practices of South Yorkshire Police at Orgreave and at Hillsborough? Could he also confirm that in May the interim chief constable of South Yorkshire Police said:

“The Hillsborough Inquests have brought into sharp focus the need to confront the past. I would therefore welcome an independent assessment of Orgreave, accepting that the way in which this is delivered is a matter for the Home Secretary”?

Could the Minister also confirm that in a letter to the Home Secretary last month, several MPs called for a public inquiry and said that,

“trust will never truly be restored until we find out the entire truth about Orgreave … and the wider policing of the miners’ strike”,

including the allegations of police mistreatment of striking miners? We support the call for an inquiry, the case for which is now overwhelming. Why, as the noble Lord, Lord Balfe, asked, is it taking so long for the Government to come to the same conclusion?

[Lord Keen of Elie]

It is not a case of the Government delaying coming to a conclusion. As I indicated in an earlier answer, the IPCC has specifically pointed out that a decision on an inquiry at this stage could cross over into further investigations into potential criminal prosecutions. With regard to the disclosure of the unredacted report by a newspaper on 4 May 2016, the entire unredacted report was not disclosed. However, that which was disclosed did show a number of senior officers acting in common in regard to Orgreave and Hillsborough; that is correct. As regards the observations that have been made by the temporary chief constable and the MPs, I agree that those observations were made.

[Lord Paddick (LD)]

My Lords, does the noble and learned Lord agree that an investigation similar to that conducted by the Hillsborough Independent Panel might be the way forward?

[Lord Keen of Elie]

My Lords, that will be a matter for the new Home Secretary.

[Viscount Hailsham (Con)]

My Lords, may I reinforce the caution shown by my noble and learned friend? While it may be the case that individual police officers were guilty of misconduct or overreaction, the primary responsibility for what happened rests on the leaders of the mining community, who brought very large numbers of people to the site and were prepared to use force and threats of force in order to implement policies that were as much political as industrial. Had they succeeded, that would have subverted the principles of democratic government.

[Lord Keen of Elie]

I think the factual circumstances of the incident at Orgreave are well known, and I would not seek to elaborate upon them.

[Lord Blair of Boughton (CB)]

My Lords—

--- Later in debate ---

[Lord Morgan]

Thank you, my Lords. I am very grateful, from the Back Benches, to be allowed to speak—a rare privilege. Is it not the case that the police have far too often escaped inquiry into their handling of the labour movement? This goes back a long time—back to the time when the Public Order Act was used against unemployed workers but not against fascists. Has this not been made much worse by the operation of the so-called Freedom of Information Act? I say “so-called” because it has been used in a very obstructive way. I would be grateful for a comment.

[Lord Keen of Elie]

I cannot accept that there has been an excessive move by the police in regard to these matters.

[Lord Clark of Windermere (Lab)]

My Lords, it is with regret that I heard the comment from the other side of the House blaming the miners’ leaders. I represented a mining community in the other House and I was very proud to do so. I was very active during the strike in 1984, and I must say that I saw police violence as well. I feel that there ought to be a general inquiry about the policing of the miners’ strike—because it is one of the reasons for the disenchantment with politics that we saw three weeks ago in the Brexit vote.

[Lord Keen of Elie]

I am not going to anticipate a decision that will be made by the future Home Secretary, but I would observe that, following the incident at Orgreave, 51 pickets and 72 policemen were injured.

Criminal Justice Act 1988 (Offensive Weapons) (Amendment) Order 2016

Lord Keen of Elie Excerpts

Tuesday 12th July 2016 Grand Committee

Moved by

[Lord Keen of Elie]

That the Grand Committee do consider the Criminal Justice Act 1988 (Offensive Weapons) (Amendment) Order 2016.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, the order before us today adds zombie knives, zombie killer knives and zombie slayer knives to the list of offensive weapons by amending the Criminal Justice Act 1988 (Offensive Weapons) Order 1988.

The purpose of the order is to maintain public safety. Restricting the supply of weapons which can be used in violent crime or to create a fear of violence is a matter of public concern, which is why the Government are taking this action. Before setting out further details about the order and what action the Government are taking, I will briefly explain why it is necessary to tackle zombie knives.

We are concerned about the availability of these weapons, which can be purchased for as little as £10, have an aesthetic appeal to young men and have no practical use. In 2015, Stefan Appleton, a young man of 17, was murdered with a zombie knife marketed as a “renegade zombie killer machete/head decapitator”.

The Government believe that although the number of sales is relatively low, these weapons have a disproportionate effect because their appearance both creates a fear of violence in law-abiding members of the public and glamorises violence for those to whom these types of knives appeal. The police advise that they are often used as status symbols by gangs in videos inciting violence, and have asked that they are banned.

Unlike other types of knife, zombie knives have no legitimate purpose. They are designed for the purpose of violence and creating a fear of violence, and the way they are marketed, using names such as “headsplitter”, “decapitator”, “skullsplitter”, “chopper” or “executioner”, clearly demonstrates the purposes for which they are intended. Many of the knives are also painted in a way that suggests blood on the handle or blade. These knives pose a danger to the young men themselves and to wider society.

With that background in mind, I turn to the details of the order. Under Section 141 of the Criminal Justice Act 1988, it is an offence to manufacture, sell, hire, offer for sale or hire, or expose or possess for the purposes of sale or hire, a weapon specified in an order made under that section. The importation of any such weapon is also prohibited. The offence carries a maximum penalty of six months’ imprisonment.

The order does not provide for the possession of these weapons to be a criminal offence, but the possession of an article with a blade or point in a public place or school premises without good reason or lawful excuse is a criminal offence under Sections 139 and 139A of the Criminal Justice Act 1988, as is the possession of an offensive weapon in a public place by virtue of Section 1 of the Prevention of Crime Act 1953.

The Government want to add zombie knives to those weapons that are prohibited by order. This will be achieved by using the order-making powers in Section 141(2) of the Criminal Justice Act 1988 to add these knives to the list of offensive weapons to which the section applies. These weapons are defined as:

“the weapon sometimes known as a ‘zombie knife’, ‘zombie killer knife’ or ‘zombie slayer knife’, being a blade with … a cutting edge … a serrated edge; and … images or words (whether on the blade or handle) that suggest that it is to be used for the purpose of violence”.

I hope noble Lords will agree that this order should proceed. It will prevent these weapons being used in violent crime or to instil a fear of violence. I therefore commend the order to the Committee and I beg to move.

[Lord Kennedy of Southwark (Lab)]

My Lords, I had never heard of these weapons before I looked at this order a couple of days ago. The descriptions in the Explanatory Notes and impact assessment are truly dreadful, and I am grateful to the Minister for showing me a picture of one of these knives a few minutes ago. I am very happy to support a complete ban on the manufacture, import, sale, hire, and offer for sale or hire of these weapons. The names—zombie knives, zombie killer knives and zombie slayer knives—are just dreadful.

The impact assessment makes it very clear that the benefits outweigh the costs, even in simple monetary terms, but what we are talking about here is not just money but serious injury to human beings and the killing of human beings with these awful weapons. There is no monetary figure you can put on that. If one life is saved or one serious injury prevented by introducing this ban, it will be a step well worth taking, and I am very happy to support the order.

--- Later in debate ---

[Lord Keen of Elie]

I am most obliged to the noble Lord. As he indicated, these weapons have no legitimate purpose and yet they have an appeal to vulnerable young people. Therefore, it is important that they should be added to the list of banned weapons.

Motion agreed.

Misuse of Drugs Act 1971 (Temporary Class Drug) Order 2016

Lord Keen of Elie Excerpts

Tuesday 12th July 2016 Grand Committee

Moved by

[Lord Keen of Elie]

That the Grand Committee do consider the Misuse of Drugs Act 1971 (Temporary Class Drug) Order 2016.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, I thank the Advisory Council on the Misuse of Drugs for its expert advice, which informed the order we are considering today, which was laid in Parliament on 15 June.

If the order is made, seven methylphenidate-based compounds, as well as their simple derivatives, will be subject to temporary control under Section 2A of the Misuse of Drugs Act 1971 for a further 12 months, thereby maintaining the offences concerning their production and distribution. These compounds were controlled for 12 months under a previous temporary class drug order, which expired on 26 June 2016. The new TCDO came into effect on 27 June and will remain in effect for 12 months, subject to Parliament’s approval.

We are seeking to extend the temporary control following a request from the ACMD for additional time to strengthen its evidence base. This will give it the opportunity to consider the most recent data, including data from festivals, drug-related deaths and information from the drugs early warning system. The additional 12 months will allow the ACMD to consider whether these drugs should be made subject to full control under the Misuse of Drugs Act 1971. The ACMD notes that the initial TCDO has had a positive effect. Police Scotland has reported that in Edinburgh, where there had been reported injecting practices and an outbreak of infections involving some of these substances, there has been a reduction in harms.

These seven compounds are thought to be highly potent stimulants, similar to methylphenidate, a class B drug. One of these substances, ethylphenidate, had previously been marketed online as an alternative to cocaine. Their harms are reported to include anxiety, paranoia, visual disturbance, chest pain and a strong urge to re-dose. Other reported harms include anti-social and violent behaviour, loss of fine motor control, a high risk of bacterial infection and local tissue damage from injecting.

The order enables UK law enforcement to continue action against traffickers and suppliers of temporary class drugs while the ACMD gathers evidence. The order also sends out a clear message to the public, especially to young people, that these drugs and the brand names associated with them carry serious health risks. We know that the change in the law cannot on its own deter all those inclined to use or experiment with these drugs. However, we expect the TCDO to continue to have a notable impact on their availability, and in turn on demand for them, as we have seen with other substances controlled under a TCDO.

We know that legislation alone is not enough and continue to take action across education, prevention, treatment and recovery in order to reduce harmful drug use. We will continue to update our public health messages to inform the public of the harms caused by these substances, using the latest evidence gathered from early warning systems. In these circumstances, I commend the order to your Lordships.

[Lord Kennedy of Southwark (Lab)]

My Lords, as we have heard, the order seeks to renew a temporary control order on the substances listed in the paper for another year, while further work is undertaken and a decision is made on what should happen in the long term. I have no issue with the order whatever. All I would say is that I hope that in granting this temporary ban for another year, we are able within that time to gather the information that the council has asked for, so that it can come back to us to recommend a permanent ban. Clearly, these drugs are harmful to health, and it is important, as the noble and learned Lord said, that education, treatment and advice are made available to young people so that they understand the harm that they can do to themselves and to others by taking them. I am happy to support the order and hope that sooner rather than later we will be able to deal with this issue permanently.

[Lord Keen of Elie]

I am obliged to the noble Lord. I should explain that generally speaking the council has to be helped to make a recommendation about six months before the expiry of a TCDO in order for there to be time to transpose the prohibition into the Act itself. It was therefore thought necessary in the present case that there should be an extension. I do not believe that it is anticipated that a further extension will be required, because further evidence of harm has become available and is now being analysed.

Motion agreed.

Telecommunications Restriction Orders (Custodial Institutions) (England and Wales) Regulations 2016

Lord Keen of Elie Excerpts

Tuesday 12th July 2016 Grand Committee

Moved by

[Lord Keen of Elie]

That the Grand Committee do consider the Telecommunications Restriction Orders (Custodial Institutions) (England and Wales) Regulations 2016.

Relevant document: 4th Report from the Joint Committee on Statutory Instruments, 3rd Report from the Secondary Legislation Scrutiny Committee

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, the draft telecommunications restriction order regulations provide that the National Offender Management Service—NOMS—and other specified law enforcement bodies may apply to the civil court for an order requiring mobile network operators to prevent or restrict the use of communications devices, including mobile phones, by persons detained in custodial institutions.

The use of mobile phones by prisoners is on the increase. In 2013, NOMS recovered an astonishing 7,451 mobile phone handsets and SIM cards from its estate. In 2014, it seized a record 9,745 devices. That is an average of over 26 handsets and SIM cards seized per day, every day. If these numbers alone are food for thought, then the range of serious crimes committed by prisoners, all enabled by their use of mobile phones, is truly sobering. Prisoners have been convicted of an array of serious organised crimes, all underpinned and enabled by their access to and use of mobile phones. These include: arranging murder; importing automatic firearms into the UK from Europe; smuggling huge shipments of class A drugs from South America; orchestrating the supply of recommissioned firearms across London; controlling the supply and distribution of class A drugs across the UK; two separate and truly audacious prison escape plots—the list goes on. The use of mobile phones by prisoners does not just help them continue their offending in prison but threatens prison security as well. Unauthorised mobile phones are strongly associated with drug supply, violence and bullying inside custodial institutions.

NOMS uses a range of effective passive and active security measures to stop mobile phones getting into prisons and to prevent their use when they do, but the fact remains that it is seizing more mobile phones than ever. The problem is growing and, I say, will continue to grow unless we add to and strengthen the powers that prevent unauthorised mobile phone use. It is a criminal offence for prisoners to possess or use a mobile phone, but because of the relatively small size of handsets and SIM cards and the way prisoners can hide and move these around the prison estate, it is not always possible to take possession of these devices. There is a clear need for new, cost-effective measures to prevent the use of mobile phones which do not rely on first taking possession of the device—powers which allow mobile phones and SIM cards to be put beyond normal use remotely and effectively. These draft regulations achieve those aims.

NOMS or other law enforcement bodies will apply to the county court for a telecommunications restriction order. If the court is satisfied that those devices specified in the application are in use inside a prison, it will order the mobile network operators—MNOs—to take whatever action the order specifies to prevent or restrict the use of those devices by prisoners. I note in passing that each mobile phone has a unique identifier and, therefore, irrespective of the SIM that has been employed, once an order is obtained in respect of the mobile device, it will not be useable inside the prison estate. In practice, the order will involve the MNOs blacklisting the handsets—which prevents the handset from connecting to the mobile network—and disconnecting the SIM cards from their mobile networks. A disconnected SIM card will not work in any handset. These actions will be completed within a maximum of five working days. This quickly puts the mobile phone beyond normal use, without the need to take possession of the handset or SIM.

It may be useful if I summarise the main provisions in the draft regulations. These draft regulations confer on the civil courts powers to compel mobile network operators to disconnect mobile phones and SIM cards that are found by a judge to be in use inside custodial institutions without authorisation. There is no requirement to take possession of the mobile phone first. They provide the National Offender Management Service and other law enforcement bodies with a flexible, cost-effective measure which will add to and strengthen measures deployed to tackle unauthorised mobile phone use in prisons. They will provide that only a judge can order the blacklisting of handsets and the disconnection of SIM cards found to be operating inside prisons. They will protect law enforcement’s capability to disrupt and prevent offending in prisons using covert techniques by providing for court hearings to be held in private, and for non-disclosure of evidence beyond parties to the proceedings. In some circumstances—and only if the court is satisfied that it is not in the public interest —some sensitive evidence may not be disclosed to parties to the proceedings.

The regulations will enable the applicant for a telecommunications restriction order to inform the mobile network operator to remove the terms of a court order if an error is made and a handset or SIM card is incorrectly blacklisted or disconnected, without the need to return to court to vary the order. This safeguard will make sure that any mistakes are quickly put right and that anyone affected by an error can be reconnected as soon as possible in a matter of days, minimising as far as possible the impact of an error on anyone wrongly affected by a TRO. As an additional safeguard, and to make sure that there is independent and transparent scrutiny of these provisions, the use of the draft telecommunications restriction order regulations will be overseen by the proposed Investigatory Powers Commissioner when the draft Investigatory Powers Bill receives Royal Assent. I commend this order to the Committee and beg to move.

[Lord Kennedy of Southwark (Lab)]

My Lords, as we have heard from the noble and learned Lord, Lord Keen, the order before us today gives an additional power to disrupt the use of illegally held mobile phones in the prison estate by way of a telecommunications restriction order, which requires the telecommunication provider to prevent or restrict the use of communication devices by persons detained in custodial institutions.

I very much agree with the comments from the noble Lord, Lord Ramsbotham, contained in Appendix 1 of the report from the Secondary Legislation Scrutiny Committee. The option to block mobile phone signals seems to me a far simpler and more effective option available, and it seems odd that that was dismissed out of hand largely, it appears, on the grounds of cost. Clearly, there is a serious problem and action needs to be taken. What is proposed here is better than where we are at present, but it is cumbersome—new phones or SIM cards risk being smuggled in, and a constant battle may take place to identify a new device or number so that another application can be made for a telecommunications restriction order. It does not completely solve the problem. As I said, it is cumbersome. It will require multiple applications to court on a regular basis and the more effective option has been ruled out.

As we have heard and read in the papers, mobile phones held illegally in prisons have enabled serious crimes to be committed by prisoners, including the importation of automatic firearms, the distribution of drugs, the sale of firearms, planned escapes and the harassment and intimidation of witnesses. With a list like that, I think the case for a blanket ban, through the use of blocking devices, is compelling. Can the noble and learned Lord tell us what review processes are going to be in place to evaluate this scheme and whether the blocking devices are off the table for good, or is it something the Home Office will reconsider at some point in the future? Although I prefer the blocking option, I fully support the order before us today.

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Does the Minister agree with the important conclusion of our committee? This is not a nit-picking issue but rather fundamental.

[Lord Keen of Elie]

I am obliged to noble Lords.

I will first address the matters raised by the noble Lord, Lord Rowland. I am aware of the report from the Joint Committee. The points made by the committee in its report were not raised with the department before the report was published. However, the Home Office has given careful consideration to this question and its position remains that Regulation 8 is intra vires. Section 80 of the Serious Crime Act 2015 gives power to the courts to make a TRO, and matters such as disclosure, costs, appeals and so on are all supplementary to that process—they do not have to be specified. I acknowledge that the words “supplementary” and “incidental” are broad, but they are broad for that reason, so that they can embrace these issues. In these circumstances, it is the view of the Home Office that the provisions made in Regulation 8 are supplementary to the primary or principal business of Section 80 of the Serious Crime Act 2015, and that remains our position.

[Lord Rowlands]

But surely, when one reads the list in Section 80, a regulation which allows a court to withhold evidence from a party to proceedings is more significant and important than even those in Section 80. Why was it not at least included in the original Act in those sections? I suggest to the Minister and the Committee that it is quite serious. If this precedent goes through, government departments will be able to use this loose, imprecise regulation to introduce the most wide-reaching changes by regulation, which were not included in the original Act. A quite fundamental point is at stake here.

[Lord Keen of Elie]

I note what the noble Lord says, but it is the view of the Home Office that these provisions are simply supplementary to the principal purposes of Section 80. The 13 examples that are listed are not conclusive or exclusive in that regard. However, I will undertake to write to the noble Lord further to explain our position with regard to Section 80 if he wishes me to do so.

[Lord Rowlands]

The Minister could reply to the Committee.

[Lord Keen of Elie]

I turn to the points raised by the noble Lord, Lord Kennedy, with regard to the observations made by the noble Lord, Lord Ramsbotham, at an earlier stage, and in particular the stated preference for blocking technology to be fitted in prisons, as opposed to the use of the sort of technology that is contemplated under the present proposed regulations. NOMS makes use of blocking technology in its estate and is committed to investing more in this area. However, while the technology is effective, it is extremely expensive as an option; it is estimated that the cost of employing it over the entire prison estate would be in the region of £300 million, which is massively in excess of the costs anticipated with regard to the provision of TROs—therefore, there is a real cost issue there. It remains the position that blocking technology is used within the estate and NOMS has committed to invest more in this area, but it will take time. On the employment of blocking technology, it is not just the cost of installation, but the cost of maintaining it in each wing of every prison is also considerable and has to be taken into account. That is why NOMS has adopted the position that these regulations should be employed and believes that TROs are the way forward for the immediate future.

Once commenced, the new powers will add to and strengthen the ability to prevent and disrupt offending behind prison walls. That is a key pledge in our serious and organised crime strategy and part of the Government’s overall commitment to tackling serious crime. We are working towards a commencement date for the regulations in England and Wales of July 2016. I therefore hope that this Committee will see fit to approve the draft regulations.

Motion agreed.