Ian Puddick (Internet Crime)

Lord Herbert of South Downs Excerpts

Thursday 7th July 2011 Commons Chamber

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

First, let me congratulate my hon. Friend the Member for Enfield, Southgate (Mr Burrowes) on securing the debate, which it is a pleasure for me to respond to on behalf of the Government. I know of his long-standing interest in these issues, particularly on ensuring that freedom of expression is protected and I fully understand why he seeks to raise his concerns about the case of his constituent, Mr Ian Puddick. I appreciate that my hon. Friend seeks to put the case for his constituent very forcefully, which he has certainly done.

I know that my hon. Friend understands that Ministers do not have a role in commenting on or interfering in specific cases, but it is important to restate that point. In this country we have a principle of operational independence for the police and it is very important that Ministers do not seek to direct police investigations or to comment on them improperly. However, it is also very important that we have a proper system of accountability for the police and their actions in relation to the law and more widely. I will return to that point. I am afraid that I cannot therefore comment on the legal aspects of this individual case, but I understand that the City of London police took the allegation of harassment against Mr Puddick very seriously and that it was investigated in line with national procedures.

I also understand that the City of London police received a complaint last September relating to the conduct of officers involved in Mr Puddick’s arrest on suspicion of harassment in August 2009. Following a thorough internal investigation the force’s professional standards directorate found no misconduct. Mr Puddick was informed of that decision last December and had the right to appeal to the Independent Police Complaints Commission. I do not know whether he has pursued that course, but my hon. Friend might wish to contact him and help him in that regard. We have a formal complaints procedure whereby the conduct of police forces can be properly investigated precisely to deal with situations in which people feel they have been improperly treated by the police. Having the IPCC means that such complaints and police forces can be independently investigated quite separately from Government, as is proper, but there might be reasons why Mr Puddick has not taken that course.

[Mr Burrowes]

I am grateful for the Minister’s response and I will certainly follow up the details of my constituent’s complaint. My presumption is that the progress of his complaint was subject to the fact that proceedings were ongoing, but they have recently been concluded and he will now be able to pursue many avenues. The problem he has probably encountered is that his complaint is not like usual complaints about how people have been treated in detention or on arrest, but is more of a systemic issue about an operational decision that was taken, and so he might find it harder to get to the truth. I therefore invite the Minister to make inquiries into why, given the facts of the case, the decision about Operation Bohan was taken.

[Nick Herbert]

My hon. Friend is seeking to draw me into precisely the sort of comment about individual investigations that I am prohibited from making. Nevertheless, I will say that it strikes me that this case would merit an appeal to the IPCC. I might be wrong about that and will ensure that I follow up the debate by sending him formal advice on whether that remains an option for Mr Puddick.

My hon. Friend referred to the involvement of counter-terrorist officers in the case, which the media also reported on. I can confirm that the investigation was run by the force’s major investigation team, which, although it was set up primarily to deal with major crime, occasionally deals with cases outside its remit to relieve pressure on other departments within the force. The team sits within the force’s serious crime and counter-terrorist directorate, which might explain the confusion and the suggestion that counter-terrorist officers were involved in the investigation.

I know that my hon. Friend will agree that, when the police receive an allegation of a crime, they should consider it properly. Indeed, they are required within the rules set out to record it. The offence of harassment can cause the victim great distress, and the police are committed to responding in a timely manner when they receive such reports. My comments in this respect are not to be taken as an endorsement of the police action in this case, but I think that we would all agree with the general principle that it is proper for the police to respond to and investigate such claims.

The internet has hugely enriched our lives and every Member of the House is fully aware of its potency, but it can also be a useful tool for those seeking to abuse and intimidate their victims, and it is a source of particular concern to the Government that a new opportunity for crime has been created through cyber-bullying, cyber-stalking and such harassment of victims. The abuse can continue for long periods, with no refuge for the person on the receiving end of the harassment, and can involve a much bigger audience, with more people becoming accessories to the harassment by forwarding offensive messages and images, making it difficult to identify the perpetrator. For all those reasons, the Government are very concerned about the growth of this form of criminality and are seeking to deal with it.

Let me be clear that we have no plans to block legal internet content or websites. Our view on published material is that it is important to strike a balance between freedom of expression and protection of the public and that it should be proportional to the potential harm that might be caused. In other words, it is important that the action we take, and indeed the action of those who enforce the law, is proportionate, which is precisely the word my hon. Friend used. We are making progress in this area and there will be a ministerial seminar next week on personal harm on the internet, which will focus on the two key themes of cyber-stalking and hate crime. It is important that we continue to make progress in this area. Nevertheless, I strongly agree with the principle of equality before the law, as my hon. Friend set out. It is important that police forces in this country are impartial and act without fear or favour, and he is right to restate that principle.

My hon. Friend is correct to say that I am big on accountability, and so are the Government. We seek to ensure that police forces are accountable—of course—to the law for their actions, and they are in the case before us. I mentioned recourse to the IPCC, and should Mr Puddick believe that the police behaved unlawfully in his case he also has recourse to legal action. I make no comment on whether that is the case, but the police are not above the law.

The police should also be accountable for their actions, and we seek to strengthen the democratic oversight of policing, but that does not extend to interference in operational independence, because that principle must remain. We are, however, going to give directly elected police and crime commissioners an important role in the oversight of police complaints—not to receive complaints directly, because that will still be a matter for the IPCC, but to ensure that forces generally deal with complaints properly.

I regret that that measure will not be applicable to the City of London police, because it is the one force to which we will not be introducing directly elected police and crime commissioners, but I am sure that the force itself and the authority that holds it to account will watch carefully the developments in our legislation.

On the cost of the investigation, my hon. Friend cited the sum of £1 million. I am not sure whether he thought that that was the cost of the police investigation and the Crown Prosecution Service investigation, but the City of London police state that the £1.5 million cost that was ascribed to the investigation was very wide of the mark. I am not able to respond to his suggested cost for the combined operation of the police and the CPS, but I am happy to ask that the City of London police and the CPS provide that information to my hon. Friend. Importantly, the CPS would of course have had to agree to the charges that were brought before the courts and, in doing so, have taken the view that a prosecution was in the public interest, so the actions that were taken were a matter not just for the police, but for the CPS.

Without trespassing further on the detail of the case, I fully understand my hon. Friend’s concern about the matter and, indeed, respect the fact that he has brought it to the attention of the House. I hope he understands that I cannot interfere, but I hope also that I have provided some useful information.

[Mr Burrowes]

I am grateful for the Minister’s response. He will be aware, because I have raised the matter with him before, and agree that what is needed among other things in our justice system is information. Indeed, in the words of the victims commissioner, relentless information is a real driver of change and of accountability, and one aspect of that is the reporting of magistrates court cases, which often go unnoticed. I have raised two examples, but in that area as in others the benefits of more information will raise the stakes on accountability and ensure that Ministers are as aware as others of whether there is a prevalence of such cases and of the actions that could lead to criticism and to operational changes.

I therefore ask the Minister to have an eye for that, as well as just to—

--- Later in debate ---

[Mr Burrowes]

I will just raise one other matter concerning internet crime, which is the subject of the debate. I welcome ministerial involvement in the seminars on hate crime, which is a real concern. There is a particular prevalence of anti-Semitism on the internet, and I know that Ministers are taking on work from the previous Government in that area.

[Nick Herbert]

I strongly agree about the importance of transparency. The criminal justice system is relatively opaque, but this week the Government have announced further moves to increase transparency. One area in which we wish to do that is the criminal justice system, and I am working on such proposals because I believe that justice must be seen to be done. I hope that my hon. Friend will take a continuing interest in that and will encourage us in our efforts.

I am grateful to my hon. Friend for supporting our action on hate crime, and I know that he understands the importance of dealing with it. In respect of this case and the issues that my hon. Friend raises, it is very important that we and the law strike the appropriate balance. Free speech is an important freedom that must be protected to the greatest extent possible, but it cannot be permitted if harm is done to others. The law exists in order sometimes to curtail the operation of free speech where such harm may be done. That is why we have a harassment law. It is right that our law enforcement agencies focus on areas where people may be bullied, harassed or subject to intimidation and threats, and that includes through the new medium of the internet. It is appropriate that our law enforcement agencies take action according to the laws that have been set out by Parliament. It equally behoves those agencies to behave in a proper and proportionate manner.

Question put and agreed to.

Business of the House (Police (Detention and Bail) Bill)

Lord Herbert of South Downs Excerpts

Thursday 7th July 2011 Commons Chamber

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

I beg to move,

That the following provisions shall apply to the proceedings on the Police (Detention and Bail) Bill:

Timetable

l.-(l) Proceedings on Second Reading, in Committee, on Consideration and on Third Reading shall be completed at today's sitting in accordance with the following provisions of this paragraph.

(2) Proceedings on Second Reading shall (so far as not previously concluded) be brought to a conclusion at 3.00 pm.

(3) Proceedings in Committee shall (so far as not previously concluded) be brought to a conclusion at 5.00 pm.

(4) Proceedings on Consideration and on Third Reading shall (so far as not previously concluded) be brought to a conclusion at 6.00 pm.

Timing of proceedings and Questions to be put

2. When the Bill has been read a second time—

(a) it shall (notwithstanding Standing Order No. 63 (Committal of bills not subject to a programme order)) stand committed to a Committee of the whole House without any Question being put;

(b) the Speaker shall leave the Chair whether or not notice of an Instruction has been given.

3.-(l) On the conclusion of proceedings in Committee, the Chairman shall report the Bill to the House without putting any Question.

(2) If the Bill is reported with amendments, the House shall proceed to consider the Bill as amended without any Question being put.

4. For the purpose of bringing any proceedings to a conclusion in accordance with

paragraph 1, the Speaker or Chairman shall forthwith put the following Questions (but

no others)—

(a) any Question already proposed from the Chair;

(b) any Question necessary to bring to a decision a Question so proposed;

(c) the Question on any amendment moved or Motion made by a Minister of the Crown;

(d) any other Question necessary for the disposal of the business to be concluded.

5. On a Motion so made for a new Clause or a new Schedule, the Chairman or Speaker shall put only the Question that the Clause or Schedule be added to the Bill.

6. If two or more Questions would fall to be put under paragraph 4(c) on successive amendments moved or Motions made by a Minister of the Crown, the Chairman or Speaker shall instead put a single Question in relation to those amendments or Motions.

7. If two or more Questions would fall to be put under paragraph 4(d) in relation to successive provisions of the Bill, the Chairman shall instead put a single Question in relation to those provisions.

Consideration of Lords Amendments

8.-(l) Any Lords Amendments to the Bill shall be considered forthwith without any Question being put.

(2) Proceedings on consideration of Lords Amendments shall (so far as not previously concluded) be brought to a conclusion one hour after their commencement.

9.-(l) This paragraph applies for the purpose of bringing any proceedings to a conclusion in accordance with paragraph 8.

(2) The Speaker shall first put forthwith any Question already proposed from the Chair and not yet decided.

(3) If that Question is for the amendment of a Lords Amendment the Speaker shall then put forthwith—

(a) a single Question on any further Amendments to the Lords Amendment moved by a Minister of the Crown, and

(b) the Question on any Motion made by a Minister of the Crown that this House agrees or disagrees to the Lords Amendment or (as the case may be) to the Lords Amendment as amended.

(4) The Speaker shall then put forthwith—

(a) a single Question on any Amendments moved by a Minister of the Crown to a Lords Amendment, and

(b) the Question on any Motion made by a Minister of the Crown that this House agrees or disagrees to the Lords Amendment or (as the case may be) to the Lords Amendment as amended.

(5) The Speaker shall then put forthwith the Question on any Motion made by a Minister of the Crown that this House disagrees to a Lords Amendment.

(6) The Speaker shall then put forthwith the Question that this House agrees to all the remaining Lords Amendments.

(7) As soon as the House has—

(a) agreed or disagreed to a Lords Amendment; or

(b) disposed of an Amendment relevant to a Lords Amendment which has been disagreed to,

the Speaker shall put forthwith a single Question on any Amendments moved by a Minister of the Crown and relevant to the Lords Amendment.

Subsequent stages

10.-(l) Any further Message from the Lords on the Bill shall be considered forthwith without any Question being put.

(2) Proceedings on any further Message from the Lords shall (so far as not previously concluded) be brought to a conclusion one hour after their commencement.

1.-(l) This paragraph applies for the purpose of bringing any proceedings to a conclusion in accordance with paragraph 10.

(2) The Speaker shall first put forthwith any Question which has been proposed from the Chair and not yet decided.

(3) The Speaker shall then put forthwith the Question on any Motion made by a Minister of the Crown which is related to the Question already proposed from the Chair.

(4) The Speaker shall then put forthwith the Question on any Motion made by a Minister of the Crown on or relevant to any of the remaining items in the Lords Message.

(5) The Speaker shall then put forthwith the Question that this House agrees with the Lords in all the remaining Lords Proposals.

Reasons Committee

12.-(1) The Speaker shall put forthwith the Question on any Motion made by a Minister of the Crown for the appointment, nomination and quorum of a Committee to draw up Reasons and the appointment of its Chair.

(2) A Committee appointed to draw up Reasons shall report before the conclusion of the sitting at which it is appointed.

(3) Proceedings in the Committee shall (so far as not previously concluded) be brought to a conclusion 30 minutes after their commencement.

(4) For the purpose of bringing any proceedings to a conclusion in accordance with sub-paragraph (3), the Chair shall—

(a) first put forthwith any Question which has been proposed from the Chair but not yet decided, and

(b) then put forthwith successively Questions on motions which may be made by a Minister of the Crown for assigning a Reason for disagreeing with the Lords in any of their Amendments.

(5) The proceedings of the Committee shall be reported without any further Question being put.

Miscellaneous

13. Paragraph (1) of Standing Order No. 15 (Exempted business) shall apply so far as necessary for the purposes of this Order.

14.-(1) The proceedings on any Motion made by a Minister of the Crown for varying or supplementing the provisions of this Order shall (so far as not previously concluded) be brought to a conclusion one hour after their commencement.

(2) Paragraph (1) of Standing Order No. 15 (Exempted business) shall apply to those proceedings.

15. Standing Order No. 82 (Business Committee) shall not apply in relation to any proceedings to which this Order applies.

16.-(1) No Motion shall be made, except by a Minister of the Crown, to alter the order in which any proceedings on the Bill are taken or to re-commit the Bill.

(2) The Question on any such Motion shall be put forthwith.

17.-(1) No dilatory Motion shall be made in relation to proceedings to which this Order applies except by a Minister of the Crown.

(2) The Question on any such Motion shall be put forthwith.

18. The Speaker may not arrange for a debate to be held in accordance with Standing Order No. 24 (Emergency debates)—

(a) at today's sitting, or

(b) at any sitting at which Lords Amendments to the Bill are, or any further Message from the Lords is, to be considered, before the conclusion of any proceedings to which this Order applies.

19.-(1) Sub-paragraph (2) applies if the House is adjourned, or the sitting is suspended, before the conclusion of any proceedings to which this Order applies.

(2) No notice shall be required of a Motion made at the next sitting by a Minister of the Crown for varying or supplementing the provisions of this Order.

20. Proceedings to which this Order applies shall not be interrupted under any Standing Order relating to the sittings of the House.

21.-(1) Any private business which has been set down for consideration at seven o'clock, four o'clock or three o'clock (as the case may be) on a day on which the Bill has been set down to be taken as an Order of the Day, shall, instead of being considered as provided by Standing Orders, be considered at the conclusion of the proceedings on the Bill on that day.

(2) Paragraph (1) of Standing Order No. 15 (Exempted business) shall apply to the private business for a period of three hours from the conclusion of the proceedings on the Bill or, if those proceedings are concluded before the moment of interruption, for a period equal to the time elapsing between seven o'clock, four o'clock or three o'clock (as the case may be) and the conclusion of those proceedings.

22. The Speaker shall not adjourn the House at the sitting on the day on which the Bill is sent back to the House from the Lords until—

(a) any Message from the Lords on the Bill has been received, and

(b) he has reported the Royal Assent to any Act agreed upon by both Houses.

The motion provides for some five hours of debate on the Police (Detention and Bail) Bill. If the House approves the motion, we will move directly on to Second Reading, which will take us to no later than 3 o’clock. The Committee of the whole House will then follow until no later than 5 o’clock, with a final hour for the remaining stages, to be completed by 6 o’clock. The motion also provides for programming of the later stages of the Bill in this House on consideration of Lords amendments, should there be any. I fully recognise that today’s timetable is a tight one. None the less, given the very specific issue that the House is being asked to consider, I am satisfied that the House, and in due course the other place, will have sufficient time to scrutinise this short Bill properly.

As I indicated in my oral statement in the House last week, it is imperative that we act speedily to put an end to the uncertainty created by the recent judgment of the High Court in the case of Hookway. As I then explained to the House, that judgment is having a direct and immediate impact on the police’s ability to investigate offences and protect the public. The view of the Association of Chief Police Officers, which we share, is that we cannot wait until the outcome of the Supreme Court’s hearing of the appeal on 25 July. We need to act now, not least because we can make no assumption about the outcome of the appeal to the Supreme Court.

[Mark Tami (Alyn and Deeside) (Lab)]

The Minister says, “We need to act now”, but why have not we acted earlier?

[Nick Herbert]

I am sure that these matters will be covered in the Second Reading debate. I set out in my statement last week why it had not been possible to act until the written judgment had been properly considered and until we had received formal advice from the Association of Chief Police Officers that it wished us to proceed in this way. In that regard, I should like to quote the chief constable of Essex, Jim Barker-McCardle. On this issue, he has said:

“It was only when ACPO received the written judgment on 17 June, and a number of senior people were able to spend some significant time considering the issue, that the seriousness of this became apparent. As the ACPO lead on this issue, I was not going to advise Ministers that the police service needed, in exceptional circumstances, fast track legislation until I had satisfied myself first that the legislation was necessary and that the police service could not operate effectively in light of this judgment, beyond the very short term.”

We acted: within two hours of receiving that written advice, I was here giving a statement to the House announcing that we would introduce emergency legislation. The suggestion that we did not act swiftly flies directly in the face of what ACPO is saying about how it wishes this matter to be considered. Opposition Members do not have the backing of senior police officers for their contention that we acted too slowly in this respect.

[Keith Vaz (Leicester East) (Lab)]

I am grateful to the Policing Minister, who has accurately reflected the evidence given by the chief constable to the Select Committee on Tuesday. I have one point on the business motion. Is there any outstanding legal advice that the Home Office is seeking on this matter or is the issue of the legal advice now closed?

[Nick Herbert]

No, I am not aware of outstanding legal advice that we have taken. As I told the House last week, the Association of Chief Police Officers sought advice from two QCs before coming to us with a formal request for emergency legislation.

In conclusion, I welcome the continued support from the Opposition Front-Bench team for expediting this Bill. I hope that the whole House will understand the need for fast-tracking and will therefore support the motion.

Police (Detention and Bail) Bill

Lord Herbert of South Downs Excerpts

Thursday 7th July 2011 Commons Chamber

[Nigel Mills]

It is a pleasure to serve under your chairmanship, Mr Evans. I should like simply to expand a little further on the point I made in my intervention on the hon. Member for Gedling (Vernon Coaker) about the potential for retrospective effect. We have seen, in relation to other issues earlier this year, how concerned the public are about any possibility of compensation being paid to people who are guilty of offences and are, perhaps, now being denied their right to vote. I expect the public would be incredibly concerned if people who have been through what was thought to be due legal process now had some chance of compensation, no matter how little, because that process, despite having been believed by everyone to be right, might have been ruled technically out of order by one judge in a verdict with which no one seems to agree. I accept the fact that, as is made clear in the explanatory notes, making the Bill’s provisions retrospective, right back to 1984, is an attempt to address that.

My concern is that to some extent we are in this mess because Parliament was not clear enough about its intentions when it passed the 1984 Act. It would be helpful if Parliament was entirely clear about what we mean when we give retrospective effect and if the Minister made explicit the intention, as set out in the explanatory notes, that these powers will be restored to what we all understood them to be for 25 years so that the courts will not allow any compensation claims. The explanatory notes are clear that that is what the Bill is attempting to do.

To try to clarify the point that the hon. Member for Gedling made, if he looks at page 9 of the explanatory notes, he will see that paragraph 36(c) states:

“Unless the Bill is given retrospective effect, it is possible that a very large number of people could bring claims for damages for detention occurring before the judgment, even though that detention was in accordance with what was honestly thought to be a long-understood legal position.”

There could be a huge number of claims and a large amount of money at stake, and it would be very generous to think that some claims-handling firms would not go around trying to find people to make those claims and test the process.

I want to ask the Minister two questions. First, will he make it absolutely clear that the Government’s view, and Parliament’s intention, is that no compensation would be due? Secondly, will he address the point about whether it would be wise to add a separate subsection to the Bill that makes that absolutely explicit so that if and when such claims are brought there is no doubt that our intention is that no compensation should be due?

[Nick Herbert]

The hon. Member for Gedling (Vernon Coaker) and my hon. Friend the Member for Amber Valley (Nigel Mills) have raised a number of concerns that I will try to answer, but first I wish to return to the Opposition’s general allegation about delay. It is simply not the view of senior police officers that there has been inappropriate delay in the matter. The Opposition are claiming something that does not have the support of those most affected by the judgment’s implications.

I attended the ACPO conference in Harrogate this week, which the hon. Gentleman joined for the last day, and talked with the chief constable of Greater Manchester police, the force originally affected. He said that at the time of the oral judgment his force could not believe that a single judgment in Salford could affect all the cases across the country and overturn something that had been operating since 1986. The police force affected did not appreciate at that stage the potential wider implications of the court’s decision. The High Court judge, Mr Justice McCombe, said that the consequences would not be

“as severe as might be feared”,

a view with which the shadow Home Secretary disagrees. As I noted earlier, the ACPO lead on the issue, the chief constable of Essex police, Jim Barker-McCardle, has said:

“It was only when ACPO received the written judgment on 17 June…that the seriousness of the issue became apparent.”

The chief constable of the force concerned did not appreciate the wider implications, the High Court judge said that the consequences were not severe and the ACPO lead said that their seriousness was not appreciated until 17 June, and yet the Opposition appear to know differently and apparently, with astonishing clairvoyance, saw the need for action in May. Neither the police, nor the High Court judge saw the need for action, but the Opposition apparently did. This simply is not a credible position for the Opposition to take. I repeat that the Government acted as fast as we could. In particular, once we received formal advice from ACPO that it believed that emergency legislation was necessary, we acted very fast indeed.

I say to the hon. Member for Gedling—this is an important point—that the Opposition could take a different approach. He may remember that, in 2008, when the Supreme Court ruled on witness anonymity and against the common law understanding of the issue, the then Government decided to introduce emergency legislation and we supported them. I know that we did so because I led for the then Opposition. I did not claim that the Government of the day had in any way delayed, yet that emergency legislation was introduced to almost exactly the same timetable as this legislation after the written judgment had been received. We also hope that this legislation will be on the statute books sooner than that one was, so there is no need to strike such a partisan stance on the matter, given the cross-party agreement that it is necessary to do something. I am sorry that, when we need to consider the substance of the issue, the Opposition have continued to make political points, but I hope that deals with the issue of delay.

The hon. Gentleman also asked whether the Government felt there should be a debate about time limits. My point on Second Reading was that, if there are believed to be problems with the operation of police bail, and if the suggestion is that bail is being extended for too long a period or over-used, those who believe that to be the case should assemble their evidence and present a serious case, at which point I am sure that hon. Members on both sides will debate and consider it carefully.

Such points were made, it seems to the Government, at a very late stage and only when the High Court judgment came in, so we do not think it appropriate to amend the emergency legislation. That does not preclude sensible debate about the matter in future, but I gently point out to the hon. Gentleman that the Opposition did not raise them before that point, either. The House did not appear to be aware of a concern—if, indeed, there is widespread concern, and I do not presume that there is—about the operation of police bail.

The Government certainly do not have a closed mind to the issue, and of course we should pay the closest attention to a proper case, should one be made to us, but we will not arbitrarily and in a rushed manner set limits on the operation of police bail without proper evidence, proper understanding of the problem, proper consultation and proper consideration of the impact of such limits. That is a responsible position to take.

The hon. Gentleman asked also about the Government’s response to the Lords Constitution Committee report, which he correctly said we received just this morning, and in particular our response to its conclusion that there is an issue of constitutional principle regarding the separation of powers and the rule of law, because Parliament is introducing emergency legislation when an appeal is pending to the Supreme Court.

The Government do not see that the decision to legislate in advance of an outcome to that appeal raises any constitutional issues. The sovereignty of Parliament means that it is entirely open to Parliament to legislate at any time in response to a court judgment, and that is what we are doing.

The hon. Gentleman also raised the important issue of retrospection, about which my hon. Friend the Member for Amber Valley (Nigel Mills) was also concerned in relation to compensation claims. The hon. Member for Gedling wanted in particular to know whether the retrospective nature of the Bill meant it went back only to the original judgment on 19 May. That is not the case, because the High Court judgment itself applied to all cases going back to 1986. The Court, owing to its different understanding of the Bail Act, stated that any cases prior to 1986 may have involved unlawful detention, so this legislation must go all the way back as well. That is why if hon. Members read clause 1(3) they will see the following wording:

“The amendments made by subsections (1) and (2) are deemed always to have had effect.”

That is particularly important because we need to create legal certainty. As I said on Second Reading, it is important that we do not permit what might otherwise be the bringing of a rash of legal cases.

[Vernon Coaker]

The Minister is providing helpful clarity in responding to what the hon. Member for Amber Valley (Nigel Mills) and I said. Without having the legal support that the Minister does, it was not immediately obvious to me that that was the case, and I was worried about it. His reply will give a sense of relief to all sane people throughout the country.

[Nick Herbert]

I am grateful for the hon. Gentleman’s support, although I did it almost all on my own without the legal support that he claims. Nevertheless, that is the effect of the Bill, and that is important because it means that there is no doubt about the matter. Any claim based on what the High Court has said since the May judgment would not succeed because Parliament is stating clearly that the original understanding of the legislation should apply. I am happy to put on record that the Government’s, and I believe Parliament’s, intention is not to allow compensation claims that may have arisen as a consequence of this judgment. It is expressly our desire to prevent such claims, which would be improper and unwarranted in the circumstances.

The hon. Member for Gedling asked me a specific question about the Home Office’s preparedness for legislation—that is, did we prepare on a contingency basis before ACPO came to us with its formal request on the necessity for emergency legislation? ACPO presented its case to me on the morning of Thursday 30 June, and I made my oral statement less than two hours later. The Home Office had already studied the judgment, considered possible legislative vehicles, and prepared instructions to parliamentary counsel that were sent on the same day in time for a first draft of the legislation to be received later that day. We acted explicitly and swiftly. Of course, the drafting was not complicated because this is a straightforward Bill that simply restores the status quo ante.

The hon. Gentleman asked whether it was merely our aim that the Bill should receive Royal Assent next Tuesday or whether it would receive Royal Assent next Tuesday. Of course, that is a matter for the other place, but it is very much our hope and expectation that we will have Royal Assent on 19 May once the other place has considered the Bill. [Interruption.] I am sorry—I should have said 19 July. There is always a danger in reading things without my glasses. As I have said, the Bill will take effect once Royal Assent is received. I hope that that answers the hon. Gentleman’s specific questions.

[Vernon Coaker]

This is a hugely important issue not only for the police but for the confidence of the public in ensuring that we are doing as much as we can, as swiftly as we can, to protect them from the people they need protecting from. Notwithstanding our difference about the delay, it was helpful for the Minister to clarify some of those specific points, and I thank him for that.

[Nick Herbert]

For the record, may I correct what I said about when the Bill will receive Royal Assent? I should have said 12 July, not 19 July. That was written in larger writing, but I could not see it.

[Vernon Coaker]

On a point of order, Madam Deputy Speaker. Is the Minister absolutely certain that he has got it right this time?

--- Later in debate ---

[Nick Herbert]

I beg to move, That the Bill be now read the Third time.

I do not need to detain the House, because there is broad agreement about the importance of this legislation and the substance of it. I hope that I have answered the questions that have been raised during the Bill’s passage. There will, of course, be a further opportunity to consider any issues when the other place debates the Bill on Tuesday. I hope that the fact that questions have been raised by hon. Members on both sides of the House indicates that there has been proper scrutiny of the Bill. It is a short Bill, but important questions were nevertheless raised about it. The Government are grateful for the support of the official Opposition and hon. Members on both sides of the House for this important legislation, which will simply restore 25 years of previously understood legal and police practice, and enable the police to do their job. I commend the Bill to the House.

Police Detention

Lord Herbert of South Downs Excerpts

Thursday 30th June 2011 Commons Chamber

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

I apologise, Mr Speaker.

With permission, I would like to make a statement on the recent High Court ruling on police bail. The Home Secretary is in Madrid at a G6 meeting.

Since the Police and Criminal Evidence Act came into effect in January 1986, the police, the Government and the courts have all agreed that the time suspects spend on bail does not count towards the maximum permitted period of detention without charge. For more than 25 years, this sensible and uncontested way of working has enabled the police to investigate crimes and keep the public safe.

On 5 April, a district judge refused a routine application from Greater Manchester police for a warrant for the further detention of a murder suspect, Paul Hookway. On 19 May, Mr Justice McCombe confirmed the district judge’s decision in a judicial review. Mr Justice McCombe’s written judgment was made available on 17 June. Since then, Home Office officials and lawyers have been working with the police, the Crown Prosecution Service and others to evaluate the scale of the problem that the judgment presents.

When the scale of the problem became clear, Ministers were alerted on 24 June. If any suspect is released on bail, the judgment means that they are, in effect, still in police detention. That means that time spent on bail should count towards any maximum period of pre-charge detention. The judgment goes against a quarter of a century of legal understanding and accepted police practice, and as the Home Secretary said yesterday, it causes us grave concern.

The police believe that the judgment will have a serious impact on their ability to investigate crime. In some cases, it will mean that suspects who would normally be released on bail are detained for longer. It is likely that there will not be enough capacity in most forces to detain everybody in police cells. In other cases, it risks impeding the police to such an extent that the investigation will have to be stopped because the detention time has run out. The judgment will also affect the ability of the police to enforce bail conditions.

We cannot, must not and will not ask the police to do their work with one hand tied behind their backs, so they have our full support in appealing the decision to the Supreme Court. With about 80,000 suspects on police bail around the country, however, we cannot afford to wait for a Supreme Court ruling. That is why the Association of Chief Police Officers has today advised the Home Secretary that new legislation is needed.

We agree with that assessment, so we will urgently bring forward emergency legislation to overturn the ruling. That emergency legislation will clarify the position and provide assurance that the police can continue to operate on the basis on which they have operated for many years. We are also seeking urgent further advice on how to mitigate the practical problems caused by the Court’s decision in this interim period. I welcome the support that the Opposition Front-Bench team have already promised for this action.

There must be proper rules governing the detention of suspects before charge, which was what Parliament intended more than 25 years ago. This judgment upsets a careful balance that has stood for a quarter of a century and impedes the police from doing their job. That is why it must be reversed, so I commend this statement to the House.

[Yvette Cooper (Normanton, Pontefract and Castleford) (Lab)]

That was an astonishing statement from the Minister. I do not even have a copy of more than two pages of it, which I was given as he walked into the Chamber, and I believe that other Members do not have copies at all. I was advised by the Minister’s office that lawyers were still checking it. He was very lucky that an urgent question was asked this morning, because otherwise he would not have had a statement to give on what is a very serious issue, six weeks after the original judgment. What has the Home Office been doing in the meantime?

As the Minister said, this is a deeply serious situation for the police, prosecutions, and, ultimately, justice for victims. Twenty-five years of police practice and legal interpretation have been overturned. We understand that the ruling has immediate effect, and we agree with the Minister that the previous position must be restored at the earliest opportunity. The ruling affects 80,000 suspects who are currently on police bail, but prosecutions and trials could be put at risk if the police have not acted in line with the current law.

I have been advised that Home Office officials were informed of the judgment soon after it was made on 19 May. Can the Minister confirm that? He said that they had the written judgment on 17 June, 13 days ago. What have the Government been doing since then? Why is it still not clear what this means for the police? Some forces believe that it affects custody but not bail conditions, while others fear that it means that bail conditions no longer apply. That could include bail conditions affecting whether or not a suspect can interfere with witnesses. Has definitive guidance been circulated among the police? If not, why not?

During the 13-day period since the written judgment was made available, has the Home Secretary or the Attorney-General even looked at the legal position or sought legal advice, rather than simply leaving it to the police to take a view? The police need to know what to do 43 days after the original judgment was delivered. What has been done to get the judgment suspended in the meantime? I understand that this morning the Supreme Court granted leave to appeal. Has it been able to introduce a stay of judgment? Did anyone apply to it for a stay of judgment? Was it asked to conduct an expedited hearing in order to introduce a stay of judgment? Was an appeal made to Mr Justice McCombe to stay his initial judgment pending further appeal from the Supreme Court? It is not good enough to say that this is a matter for the police, because it has implications for justice throughout the country.

Why did it take so long to conclude that emergency legislation was needed, and why has no work been done to sort that out? The Leader of the House has just stood up and given the House the business for the next two weeks. Will he have to stand up again and tell us what the business for the next few days will be so that the Government can get the emergency legislation through? We have had no discussions with business managers, and I have seen no draft emergency legislation. Why was legislation not drawn up 43 days ago as a contingency measure to deal with these extremely serious circumstances?

Will the emergency legislation be retrospective? How will it deal with the cases that are currently being handled in police custody centres and police stations across the country? What guidance are the police being given on whether they are jeopardising prosecutions through decisions that they are making in custody cells every day and every hour across the country? When will we see the legislation? I have already told the Home Secretary that we will support emergency legislation to restore the previous position, and we will seek to do that as soon as possible.

I know that the Home Secretary is in Spain today, but she was not there yesterday, and she should have made the decision at a time when she could come to the House and announce it. There has been considerable chaos in the Home Office, not just this week but for the past few weeks. The situation is ludicrous: someone whom the Home Office tried to ban from the country has sauntered in, while people whom it is trying to put in custody are sauntering out. There is a worrying level of carelessness, drift and incompetence. Justice for victims and protection of witnesses are too important to be handled in this way, and the Home Secretary should get a grip.

[Nick Herbert]

My understanding is that there is widespread agreement and concern about the impact of the decision, and that we should proceed on the basis of sensible discussion. We are grateful for the Opposition’s support in that regard.

The right hon. Lady asked about the Home Office’s role since the judgment. Mr Justice McCombe delivered his judgment in the divisional court in Manchester on 19 May, but it was an oral judgment. The Greater Manchester police forwarded a copy of it, but only when we received the written judgment, on 17 June, were we able to begin to ascertain the extent of its effect, and, in particular, only then did it begin to become clear that its implications went beyond the issue of warrants of further detention. Since then the Home Office, the Crown Prosecution Office and officials of the Association of Chief Police Officers have been engaged in a constant dialogue in an attempt to understand the detailed implications, which are complex. On 24 June—-last Friday—the leaders of ACPO met senior Home Office officials, and at that point Ministers were informed. ACPO then commissioned advice from a leading QC. The right hon. Lady asked about the guidance issued to police officers; ACPO issued interim guidance to all chief constables at that point.

Last Wednesday ACPO commissioned additional advice from Steven Kovats QC, which it received this morning. I hope to explain some of the circumstances to which the right hon. Lady referred. It was this morning that ACPO presented its case for urgent legislation to Ministers, and it was therefore this morning that it was appropriate for us to come to the House to say what would be the right thing for us to do. We will seek to put the legislation before the House as soon as possible, following discussion through the usual channels. The matter is of concern to the police, but it is appropriate for us to continue to work carefully with them in relation to the guidance that will need to be given to forces following the further advice received from the QC.

There seems to be general agreement that this was an unusual judgment, which overturned 25 years of legal understanding. We cannot wait for a Supreme Court decision, and emergency legislation is therefore sensible and appropriate. I am glad that that is also the view of the official Opposition, and we are grateful for their support in expediting it.

[Tom Brake (Carshalton and Wallington) (LD)]

There is a clear and urgent need for emergency legislation. Does the Minister expect permanent legislation to be included in the Legal Aid, Sentencing and Punishment of Offenders Bill? Pending the implementation of emergency legislation, what emergency measures are being considered, such as the creation of additional temporary cell capacity?

[Nick Herbert]

We expect the emergency legislation to be the last word on the subject. We do not believe that it will be complicated to return to the status quo ante, which, after all, was the basis of legal understanding for 25 years. We do not think that it would be possible to leave the matter to an amendment to one of the Bills that are already before the House, because we would not secure that legislation soon enough. It is therefore appropriate for us to consider introducing legislation much more swiftly.

As I said in my statement, we are urgently seeking further advice on how to mitigate the impact on the police. We will do everything that is lawfully possible to ensure that they can conduct their business and deal with the interviewing of suspects, and that is the subject of ongoing discussion with the Association of Chief Police Officers.

[Keith Vaz (Leicester East) (Lab)]

I thank the Minister for his statement. These must be busy times at the Home Office, but I am disappointed that there has not been a statement on the Sheikh Raed Salah case as the implications of that are equally important.

The Minister is absolutely right that there must be emergency legislation, and it would be useful if copies of the draft legislation were sent as soon as possible to the shadow Secretary of State, my right hon. Friend the Member for Normanton, Pontefract and Castleford (Yvette Cooper), and the Home Affairs Committee, so that we can all help the Government to get this legislation through. There is one issue, however: what happens in the next eight or so days? Do we accept the ACPO guidance, or are we saying that individual forces might act differently—I understand that the Met and West Yorkshire police are proposing different responses to this situation—so may we have a clear and definitive statement on the steps the police should take? The Home Secretary will appear before the Committee on Tuesday, so perhaps we can explore these matters with her then.

[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.

[Mr David Hanson (Delyn) (Lab)]

First, why did it take six weeks for Home Office officials to make the Minister aware of the judgment? Secondly, will the legislation be retrospective? Thirdly, will he advise police authorities, including mine in north Wales, that are currently mothballing police cells—such as in Mold in my constituency—on what action to take in respect of maintaining operational police cells in case he does not provide the legislation or win any appeal?

[Nick Herbert]

I have answered questions about when it became clear that this case was of concern. There was undoubtedly increasing concern among ACPO representatives and, when they met Crown Prosecution Service and Home Office officials, the full implications of the judgment became clear. The right hon. Gentleman asked why we did not do more, but, as I have explained, Ministers were not alerted to this by officials until 24 June, which was last Friday, and that followed deliberations that officials had been having with ACPO after it, in turn, had received its written advice. I am confident that ACPO has been working properly both in talking with officials in order to understand the implications and also in taking formal legal advice not once, but twice, about what those implications were. I am also confident that it was right for us then to come to the House once we had established a course of action, so that we could inform the House of the right way to proceed.

[Helen Jones (Warrington North) (Lab)]

The Minister’s comments have revealed an extraordinary degree of complacency in the Home Office about this very serious situation. Did Home Office officials know about this judgment in May? If so, why did they not alert Ministers, and when Ministers first found out about the judgment, why did they not immediately come to this House and make a statement and talk to the Opposition about how to get emergency legislation through to rectify the situation? Why has the Minister waited for so long?

[Nick Herbert]

I answered those points in terms in my previous answer, and I have nothing to add. It was important for us to establish what the implications of the judgment were first at official level, working with ACPO, and then on the basis of proper legal advice. It was only when officials received the written judgment of the High Court that it became clear that the original judgment might have an implication beyond that which was initially understood. There have been discussions during the course of the week about the appropriate way to proceed, and I have sought to update the House once we knew the course of action, so as to bring clarity. I repeat that I do not regard this as a matter for partisan difference. We are grateful to the Opposition for adopting a sensible approach to this matter and for supporting emergency legislation. We do not need to disagree on this.

[Robert Halfon (Harlow) (Con)]

I thank both my right hon. Friend for the statement and the Government for their prompt response in terms of the emergency legislation. Will he ensure that when this legislation is passed it will give a clear signal to judges such as the one who made the decision that we must be on the side of the victim, not the criminal?

[Nick Herbert]

I will not comment on the specific points in that question, for reasons I am sure my hon. Friend will understand, but, of course, in general it is important both that we have a criminal justice system that properly reflects the interests of victims and that justice is done. The police bail system had been operating for 25 years in a manner with which, as far as I am aware, everybody was content, and this judgment alone has, effectively, sought to undo that. That is why we think it right to bring forward this legislation.

[Mr Kevan Jones (North Durham) (Lab)]

Although the emergency legislation is welcome, police throughout the country are faced with the problem of administering the current law. What advice have the Minister or the Home Office given to police authorities about reviewing the availability of police cells and what estimate has been made of any additional costs? If there are additional costs, will the Home Office give additional grants to the police so that they can cope?

[Nick Herbert]

We are seeking to bring forward legislation to deal with the problem sufficiently swiftly to avoid any such impact that may be caused in the interim. We will also seek to mitigate the situation to the greatest possible extent, and I will discuss that with ACPO. Clearly there are implications in respect of resources and also for defendants, because as I said in my statement, it is possible that people will be detained in custody for longer, so the judgment’s practical effects will have implications for both civil liberties and the sensible operation of police bail.

[Mr David Nuttall (Bury North) (Con)]

Does my right hon. Friend agree that judgments such as this, which fly in the face of common sense, run the risk of bringing our justice system into disrepute? How can someone who is free possibly be judged to be inside? At this rate, all our prisons are going to be empty.

[Nick Herbert]

I think that the best way that I could respond would be by quoting the legal expert Professor Michael Zander QC, whom my hon. Friend may have heard on the “Today” programme this morning. He said:

“The only justification for the ruling is a literal interpretation of the Act which makes no sense”.

[Chris Ruane (Vale of Clwyd) (Lab)]

For the third time, was the Home Office advised of the oral judgment in May, yes or no?

[Nick Herbert]

For the third time, I say to the hon. Gentleman that I have explained the timeline in detail. When he looks at the record, he will see that I said—I am happy to repeat this—that Greater Manchester police approached the Home Office in May, but we received the written judgment from the court only on 17 June. Therefore, action was taken as soon as possible to understand the effects and seek advice once that written judgment was taken.

[Paul Blomfield (Sheffield Central) (Lab)]

This is an important point, and information from the House of Commons Library suggests that Home Office officials did know in May. Will the Minister give a clear answer to the House on whether that is the case, yes or no?

[Nick Herbert]

I do not understand why Labour Members are trying to pursue a point that I have already answered on a number of occasions. I am happy to repeat that officials were informed in May about the oral judgment, but it was only in June that we received the written judgment of the High Court judge. Officials then began to appreciate that the implications extended beyond that which was originally understood from the oral judgment. I am happy to go on repeating that timeline to hon. Members for as long as they seek to ask these questions.

[Nigel Mills (Amber Valley) (Con)]

I am sure that we all appreciate that these legal judgments can be complicated and that their full implications can take some time to work through, but does my right hon. Friend agree that there is a bit of concern about how long this took to reach Ministers? Is there perhaps scope for reviewing the interaction between his officials and ACPO to see whether a better process can be put in place to deal with the unlikely event that something as horrible as this ever happens again?

[Nick Herbert]

I note my hon. Friend’s point, but I think that officials wished to ascertain, with ACPO and in consultation with the Crown Prosecution Service, what the full implications of this judgment were before they came to Ministers with advice, because they needed to be able to advise Ministers properly on the extent of the implications. We will continue to work very closely with ACPO to do everything we can to support the police in doing the job that they have to do.

[Mr Jim Cunningham (Coventry South) (Lab)]

I think that what hon. Members are trying to get at is this: when the Home Office knew in May why could action not have been taken right away to set something in motion?

[Nick Herbert]

I say to hon. Members that it would be better if we dealt with the substantive issue, because I have repeated on a number of occasions the timeline and the reasons why. In particular, I have discussed the need to take legal advice to understand the implications of a complex judgment that was simply not expected. That is why ACPO has taken two sets of legal advice, and it was this morning that ACPO formally asked us for emergency legislation. I hope that that explains to the hon. Gentleman the sequence of events and why we have come to the House today to explain what we want to do.

[David Mowat (Warrington South) (Con)]

Our criminal justice system costs about 10 times more than similar criminal justice systems in similarly sized countries, yet judgments such as the one yesterday, which are perverse and self-regarding, are causing this sort of reaction by Government. When are we going to consider more structural reform of a system that is barely fit for purpose?

[Nick Herbert]

Without commenting on the specific judgment, I agree with my hon. Friend to the extent that we do have one of the most expensive criminal justice systems in the world, and that is why we seek reform of the system across the piece. It also explains the important reforms that my right hon. and learned Friend the Lord Chancellor has introduced in his Legal Aid, Sentencing and Punishment of Offenders Bill and the reforms that we seek on enhancing the accountability of the police. We will have more to say in due course about the efficiency of the criminal justice system and how we seek to drive forward on value for money and a more effective justice system.

[Mr Alan Campbell (Tynemouth) (Lab)]

The House of Commons Library advises that the Supreme Court has not stayed the judgment this morning and that nobody applied for a stay. Can the Minister confirm that that is correct?

[Nick Herbert]

I understand from the Solicitor-General that that was the case this morning, but I should say to the hon. Gentleman that every effort has been made by Greater Manchester police to appeal against this judgment—the force did this from the original court of first hearing to the High Court—and that the Government are now making every effort to overturn this judgment. That is precisely why we wish to introduce emergency legislation; we do not think that a recourse to further legal process will give sufficient certainty or will deal with the issue in the time that we think is necessary.

[Bob Blackman (Harrow East) (Con)]

As the Minister has described, some 80,000 people are affected by this judgment. No doubt many of them will be consulting their Member of Parliament this weekend and in the future, so can we have some urgent clarification and guidance from the Home Office about what to say to these people?

[Nick Herbert]

As I said in my statement, we are urgently seeking advice so that we are able to update the police, through ACPO, on how we intend to mitigate the impact of this judgment. I am happy to ensure that the House is updated as well.

Oral Answers to Questions

Lord Herbert of South Downs Excerpts

Tuesday 28th June 2011 Commons Chamber

[Mr John Spellar (Warley) (Lab)]

2. What discussions he has had with the Secretary of State for the Home Department on steps to remove foreign national prisoners.

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

Home Office and Ministry of Justice Ministers have frequently discussed the issue of foreign national prisoners, and our officials are in regular contact. The removal of foreign national prisoners and offenders awaiting deportation is a mutual priority.

[Mr Spellar]

The Department says that it wants to reduce the prison population. I am dealing with a case where a long prison sentence was rightly given, the tariff has been reached and the UK Border Agency is trying to deport the man, but the Minister is letting the Parole Board block this. What benefit is there to the British taxpayer or the safety of the British public in keeping him here? Can we have some joined-up government on this?

[Nick Herbert]

I can tell the right hon. Gentleman that this is the kind of thing we want to address, and I understand that it is being addressed in the Legal Aid, Sentencing and Punishment of Offenders Bill. We wish to improve our performance on the removal of prisoners. I should point that out that more than 5,000 foreign national prisoners were removed last year. We intend to continue to take every possible step both to reduce the foreign national prisoner population and to remove prisoners from this country.

[Dr Julian Lewis (New Forest East) (Con)]

One of the problems with removing convicted foreign prisoners is an interpretation put by the courts on their rights, such as their right to a family life—they are absolute, rather than conditional. What steps are the Government taking to recognise in law that people have rights which can be qualified by their own bad behaviour?

[Nick Herbert]

I am aware of my hon. Friend’s concern and that of the House about this issue and about whether it is appropriate in such circumstances that the removal of offenders is being blocked. I hope that the commission we have announced on the Human Rights Act 1998 will pay the closest possible attention to the operation of the human rights legislation in such cases, because it is in the public interest that we remove foreign national prisoners who have forfeited their right to remain in this country.

[Andrew Gwynne (Denton and Reddish) (Lab)]

Can the Minister say how many British nationals are held in foreign prisons, whether he expects them to be repatriated and, if so, what provision has been made in the prison estate to accommodate them?

[Nick Herbert]

I understand from my hon. Friend the prisons Minister that the number is about 2,000. The EU prisoner transfer agreement will come into force in December and will alleviate the position as regards the number of foreign national prisoners in our jails. The principle should be that if someone has committed a serious crime in this country, they cannot expect to remain at the end of their sentence. We seek the removal of prisoners in such circumstances.

[Mr James Gray (North Wiltshire) (Con)]

It is laudable that the total number of foreign nationals in prison has gone down since Labour left office from 11,000 to 10,000, but does the Minister agree that that is 10,000 too many? Is it not time we sent the whole lot of them home?

[Nick Herbert]

I agree with my hon. Friend that we want to make greater progress and that is why we have set out provisions in the sentencing Bill on, for example, conditional cautions, which will be available as an alternative disposal to remove foreign national prisoners in some circumstances if they agree not to return for a period of time. The question of whether foreign national prisoners could serve their sentences abroad relies on the consent of other countries. We are attempting to negotiate more agreements, but even if we no longer need the consent of the offender, we cannot remove them without the consent of the country that receives them.

[Mr Philip Hollobone (Kettering) (Con)]

3. If he will take steps to ensure that judges and magistrates are informed of incidents of reoffending of each offender they have sentenced.

--- Later in debate ---

[John Glen (Salisbury) (Con)]

17. What steps he plans to take to reduce rates of reoffending.

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

The Government set out their radical plans to reduce reoffending in response to the “Breaking the Cycle” consultation. We will pay by results to incentivise rehabilitation programmes that successfully prevent offenders from returning to a life of crime.

[John Glen]

I thank the Minister for that helpful reply. As a serving JP, one of the things I find particularly frustrating when considering sentencing is the several pages of antecedents involving multiple short sentences and failed attempts at drug rehabilitation. What work is being done to improve the effectiveness of drug rehabilitation, which is so crucial in stopping reoffending?

[Nick Herbert]

I welcome my hon. Friend’s comments. The good news is that in April this year the Department of Health assumed responsibility for funding all drug treatments in prison and in the community. That joint commissioning of services by the health and criminal justice agencies will facilitate a more co-ordinated approach. We must move to programmes that ensure that we are dealing with the problem properly and getting people off drugs, not simply maintaining them, as has too often been the case in the past.

[Chris Williamson (Derby North) (Lab)]

18. Which organisations his Department has consulted on reforms to the Criminal Injuries Compensation Authority and the scheme for compensating victims of overseas terrorism.

--- Later in debate ---

[Elizabeth Truss (South West Norfolk) (Con)]

Given the costs of delay when court papers do not turn up on time, what are the Government doing to expand the use of e-mail to deliver court judgments and papers?

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

I am happy to tell my hon. Friend that the Government think that it is time the criminal justice system caught up with the rest of the world. Our plan is that information documents will be sent by secure e-mail between all agencies in the system by April next year, so that we can eliminate that wasteful paperwork and drive efficiency in the system.

[Dr William McCrea (South Antrim) (DUP)]

Can the Minister update the House as to what discussions he has had with the Minister of Justice in the devolved Administration concerning proposed changes to the legal aid system?

--- Later in debate ---

[Mr Stewart Jackson (Peterborough) (Con)]

What message is sent to potential offenders and police officers—one of whom is my own brother—by the guidance of Sir Paul Stephenson, the Metropolitan Police Commissioner, that even the most offensive language used against a police officer will not now result in an offence under public order provisions.

[Nick Herbert]

I share my hon. Friend’s concern. We should all agree that it is wholly unacceptable for people to swear at police officers. Whatever the merits of that guidance or the legal position, we should stand by our police officers in the job that they do. They should not have to expect that kind of treatment.

[Mr David Crausby (Bolton North East) (Lab)]

Last December the Justice Secretary promised me that he would consider reviewing the maximum sentence for dangerous driving, which currently stands at two years regardless of the severity of the injury caused, short of death. It might well be against his liberal instincts to increase tariffs, but what progress has he made?

[Margot James (Stourbridge) (Con)]

Following on from the question asked by my hon. Friend the Member for Peterborough (Mr Jackson) about people not being convicted of abusive language and behaviour towards the police, does my right hon. Friend agree that it is even more ridiculous that some of the people concerned are then compensated for wrongful arrest? Will he please review this as a matter of urgency?

[Nick Herbert]

Again, I share my hon. Friend’s dismay. It is precisely to avoid such a situation that the Metropolitan police issued the guidance on the existing position. I repeat that it is not acceptable for police officers to be sworn at, and nor are we happy about the suggestion that it is. We wish to consider this issue because we need a system that ensures that we stand by our police officers when they are executing their duties.

[Kevin Brennan (Cardiff West) (Lab)]

I want to ask about the drug-free wings that the Justice Secretary is introducing in prisons. Will prisoners be able to choose whether they enter a drug-free wing or a wing where drugs are rife?

Police (Firearms)

Lord Herbert of South Downs Excerpts

Thursday 9th June 2011 Written Statements

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

The latest figures on police use of firearms in England and Wales from 1 April 2009 to 31 March 2010 show that:

The number of police operations in which firearms were authorised was 18,556—a decrease of 1,395 (7%) on the previous year.

The number of authorised firearms officers (AFO’s) was 6,979—an increase of 111 (1.6%) officers overall on the previous year.

The number of operations involving armed response vehicles was 14,089—a decrease of 2,475 (15%) on the previous year.

The police discharged a conventional firearm in six incidents (up from five incidents in 2008-09).

Full details are set out in the tables below:

Management of Police Pursuits: Code of Practice

Lord Herbert of South Downs Excerpts

Monday 23rd May 2011 Written Statements

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

My right hon. Friend the Home Secretary is today presenting to Parliament a statutory code of practice on the management of police pursuits. Copies of the code will be available from the Vote Office.

The code is being laid under the provisions of sections 39 and 39A of the Police Act 1996. Section 39 permits the Secretary of State to issue codes of practice relating to the discharge by police authorities of any of their functions; section 39A permits her to issue codes of practice relating to the discharge of functions by chief officers where that is necessary for the purpose of promoting the efficiency and effectiveness of police forces in England and Wales. Under section 39A(7) of the Act, chief officers have a duty to have regard to a code of practice when discharging a function to which the code relates. The code must be followed unless there are good reasons not to do so, in which case the decision not to follow the code should be recorded in writing.

Over the last six years there have been on average 22 deaths a year arising immediately or subsequently from police pursuits. Following a recommendation from the Independent Police Complaints Commission, the Association of Chief Police Officers revised their existing operational guidance on the management of pursuits and asked for this to be issued as a statutory code under the Police Act. They indicated it was their clear professional judgment that a code would ensure appropriate chief officer attention to this issue and make a significant difference on the ground, with a reduced risk of deaths and serious injuries. I agree with their advice.

The Government are committed to the operational independence of the police and will respect their professional judgment. The code I am now presenting is therefore a high-level strategic document, setting national standards and requiring chief officers to have regard to the guidance prepared by the police themselves. It is the guidance, not the code, that sets out best practice and operational detail. The guidance will be periodically amended and updated by ACPO as necessary.

Police Reform and Social Responsibility Bill (Programme) (No. 2)

Lord Herbert of South Downs Excerpts

Wednesday 30th March 2011 Commons Chamber

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

I beg to move,

That the Order of 13 December 2010 (Police Reform and Social Responsibility Bill (Programme)) be varied as follows:

1. Paragraphs 4 and 5 of the Order shall be omitted.

2. Proceedings on Consideration and Third Reading shall be concluded in two days.

3. Proceedings on Consideration shall be taken on each of those days as shown in the following Table and in the order so shown.

4. The proceedings shall (so far as not previously concluded) be brought to a conclusion at the time specified in the second column of the Table.

[Vernon Coaker (Gedling) (Lab)]

It would be churlish not to recognise the fact that the Government have provided an additional day’s debate. We are grateful for that. Notwithstanding the time we have, the problem is that the Bill raises so many issues that lack clarity, but no doubt we will debate them this afternoon. As I have said, however, we are grateful for the additional day, and it would be churlish not to recognise that fact.

Question put and agreed to.

Police Reform and Social Responsibility Bill

Lord Herbert of South Downs Excerpts

Wednesday 30th March 2011 Commons Chamber

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

First, I apologise to the Chairman of the Home Affairs Committee, the right hon. Member for Leicester East (Keith Vaz), for exhausting him. I look forward, of course, to his inquiry. I very much hope that he will invite me to give oral evidence, but that is entirely a matter for him and his Committee. I am sure that the Home Office will submit written evidence, but of course I welcome the inquiry, as I have welcomed all his reports since he assumed the chairmanship.

It seems to me that the purpose of new clause 4 is to delay the enactment of the important part of the Bill that will create directly elected police and crime commissioners. That has been expressed pretty openly. The right hon. Member for Torfaen (Paul Murphy) was explicit about the fact that he sought that for Wales, so I will seek to address that point.

As I argued in my speech to the Institute for Public Policy Research on Monday, which is on my website and which I am happy to send to any hon. Member—I am grateful to the right hon. Member for Leicester East for quoting it—I do not believe that there is time for delay, because the changes that we need to make to policing are urgent. The democratic deficit must be addressed, and there is a need to drive savings at local level more strongly than they have been driven before. We therefore need to undertake this reform.

Furthermore, if the Government signal any kind of delay now, which the Government emphatically do not wish to do, we would create uncertainty, at a time when, subject to the further deliberations of the House and the other place, others outside are preparing in the expectation that the Bill will become law—the House gave a Second Reading to the Bill—and that the first elections for police and crime commissioners will take place in 2012.

The Home Office has a transition board, which I chair, which includes all parties, including ACPO and the Association of Police Authorities. Those parties may not have proposed the Government’s measure, and they may not be wholly happy with it, but they nevertheless sensibly recognise that it makes sense to sit down and discuss how the changes should be put into place.

I want to emphasise that although the Government are determined to proceed with the Bill and its reform, we have listened. I hope the hon. Member for Gedling (Vernon Coaker) accepts that we listened in Committee, when I believe we had a constructive debate. We also listened to those outside—important views have been put to us—and to the Home Affairs Committee. We will come to debate what the Committee describes as the memorandum of understanding to protect operational independence—we call it a protocol—but we agree that it is a good idea.

We also listened to ACPO’s concerns on ensuring that strategic policing is addressed despite the greater localisation expressed in the Bill. As a consequence, the Bill provides for the strategic policing requirement. We have also strengthened the powers of police and crime panels. The Government have listened and sought to address concerns, but we nevertheless remain committed to the introduction of police and crime commissioners, with the first elections in May 2012, although we could move sooner in London, which already has a Mayor.

The right hon. Member for Torfaen referred to the National Assembly for Wales Communities and Culture Committee request for a deferment of the provisions and asked whether the Government have held discussions with the Welsh Assembly Government. I must reassure him that, right from the beginning, we have sought such discussions and to respect the devolved arrangements in Wales. I have met the Minister responsible, as has the Home Secretary, and our officials have had a great deal of discussion.

The Assembly Government have made it clear that they do not favour police and crime commissioners, but of course, policing is a reserved matter, and the House of Commons has decided that police and crime commissioners should apply in England and Wales—that is what the Bill says. The question is whether we can find arrangements that respect those aspects of the devolution settlement that are within the competence of the Welsh Assembly. We sought to do that through the legislative consent motion that we tabled, which we will shortly debate further.

I very much regret that the Welsh Assembly did not pass that motion, but I repeat that we have at all times sought to address the Welsh Assembly Government’s proper concern, while recognising that it is equally proper that the House of Commons decides on that reserved matter. Saying that we must always follow a request from the devolved Parliament or one of the Assemblies for a deferment is tantamount to saying that the matter is no longer reserved. For so long as the matter is reserved, I believe that the right decisions have been taken.

[Paul Murphy]

I remind the Minister that things are not quite as simple as saying that policing is reserved. Policing is of course reserved, but aspects of the Bill touch on matters that are not reserved. Local government, which is wholly resolved in Wales, has a huge role to play on the panels, so it is not quite as simple as he says it is. There is more room for negotiation with the Welsh Assembly Government on those very important matters.

[Nick Herbert]

I absolutely accept what the right hon. Gentleman says. Local government matters are not reserved and local government touches on the panels, but that is precisely why we negotiated the legislative consent motion. It is deeply unfortunate that despite the fact that I negotiated that motion with the Minister responsible, Carl Sargeant, and he agreed it, he did not vote for it. As I said at the time, I regret that, because it was self-defeating. The motion sought to put in place the special arrangements for police and crime panels in Wales, on which the Welsh Assembly Government would have representation. I emphasise to the right hon. Gentleman that we really tried to reach an arrangement and to respect the devolution settlement.

[Mark Tami (Alyn and Deeside) (Lab)]

The point that my right hon. Friend the Member for Torfaen (Paul Murphy) makes is that the mechanism for election to police panels is a devolved matter, meaning that the Assembly is responsible. How does the Minister square that circle?

[Nick Herbert]

If I may, I will come to that matter when we reach that specific group of amendments, because the Government have tabled amendments to address it. We must find a way to ensure that the Bill is consistent with the wishes of the Welsh Assembly, which it expressed in rejecting the legislative consent motion. I shall address that question at the appropriate time, but I wanted to respond specifically to the right hon. Member for Torfaen.

When moving new clause 4, the hon. Member for Gedling made a number of wider points in which he attempted to open up once again the arguments for and against police and crime commissioners. I shall not dwell on those other than to say that he has expressed support in the past for the concept of a direct component in police authorities, as was ably pointed out by my hon. Friend the Member for Northampton North (Michael Ellis).

In addition, in Committee, the hon. Member for Gedling moved an amendment for directly elected chairs of police authorities, and the previous Government twice proposed a democratic element. I accept that there is a difference between that Government and this one, but the difference is not that this Government do not believe in democratic reform of police authorities—it appears that all parties do. Rather, the difference is that the previous Government backed down twice, but we have no intention of doing so, because there was a Conservative party manifesto commitment, and as my hon. Friend the Member for Cambridge (Dr Huppert) pointed out, because having directly elected police authorities was separately a Liberal Democrat manifesto commitment.

We now know that the latest proposal from the hon. Member for Gedling is for directly elected chairs of police authorities. In moving and voting for that amendment, the hon. Gentleman wholly undermined his argument on cost, because implementation of directly elected chairs of police authorities would cost not the same as police and crime commissioners, but more. Therefore, the most expensive proposal for democratic reform of police authorities in the House of Commons is from the Opposition spokesman.

What is wrong with proposed new clause 4—I agree with the right hon. Member for Leicester East on this —is that it would put in the hands of the inspectorate of constabulary the power to hold an inquiry, and thereby to delay implementation of the Bill. Constitutionally, that would be very difficult. It would place the inspectorate in an invidious position. Parliament should decide reforms of this kind, after taking into account the views of both Houses and consulting widely. The idea that we can somehow park these matters into an inquiry by an independent body that is meant to look at the effectiveness and efficiency of policing is wrong. It would be very wrong for that organisation to do that, as it would effectively set up the inspectorate as judge and jury on a decision that Parliament had made. We therefore believe that these measures are the right thing to do, and we intend to proceed with them. Nevertheless, we are listening and will continue to do so.

In conclusion, on new clause 4, I would like to point out that, when the previous Home Secretary, the right hon. Member for Sheffield, Brightside and Hillsborough (Mr Blunkett) was proposing democratic reform of police authorities, he said that those who claimed to have the power, and who wished to hold the power, should therefore be accountable for the power. That is the right principle, and the basis on which we should proceed.

[Keith Vaz]

I do not wish to interrupt the right hon. Gentleman’s peroration, but I want to make a point about the timing of the election. During the course of the inquiry, the Select Committee picked up some concern about the election taking place in May next year, just before the Olympics, when people ought to be concentrating on security measures and related issues. Is the Minister quite satisfied that this is the right timing?

[Nick Herbert]

The right hon. Gentleman makes a genuine point. There are two answers. First, I have said that the Government wish to move sooner in relation to London. The transition in London could therefore be made before the elections in 2012. Secondly, the measures relate to a change in the governance of policing. The Bill will not affect the police forces themselves. There are important changes being made, but this is principally a change to the governance of policing. There should be proper discussion, to ensure that in the run-up to the transition the police authorities do not lose sight of such important matters and that the forces that they hold to account do not do so either.

The remaining group of Government amendments will not, I hope, be controversial. They are all of a minor and technical nature, and I will summarise them briefly now. Amendments 6 and 8 will clarify the wording of the Bill so that a commissioner—or, in London, the Mayor’s office for policing and crime—will be obliged to consult a chief officer of a force on a new or revised plan only to the extent that its content is actually new. At present, the wording of the Bill includes two repetitious obligations to consult on the plan—for example, in clause 5, subsections (6)(b) and (8). It would make no sense legally to compel such individuals to consult again on material that had already been discussed. I would expect such discussion to occur naturally and when necessary between a commissioner and his chief officer, so this new wording merely puts a duty on the commissioner to ensure that new content is drawn to the chief constable’s attention. Any more burdensome requirements would be needlessly bureaucratic and prescriptive.

Amendment 9 will bring the police and crime plan issued by the Mayor’s office for policing and crime into line with other mayoral strategies, in regard to some of the matters that the Mayor has to bear in mind when drafting the plan. It is right that there should be a consistent and joined-up approach to the plan and the other strategies. Amendment 10 will clarify the scope of the duty on commissioners and criminal justice bodies to co-operate with each other. On the purpose of the co-operation, it replaces the word “in” with the word “for” in the phrase

“so as to provide an efficient and effective criminal justice system in the police area”

in relation to a commissioner’s responsibilities for criminal justice “for their force area”. This reflects the fact that elements of the system such as a court or a prison that are outside the geographical area of the force may still contribute to the criminal justice system inside the area.

Amendment 12 makes it clear that the general bar on a commissioner delegating the discharge of his functions to another commissioner or a chief constable does not prevent the delegation of functions in the context of a formal collaboration agreement. Amendment 13 will correct a reference to the wrong subsection in the provisions dealing with the delegation of the functions of the Mayor’s office for policing and crime to the Deputy Mayor for policing and crime.

Amendment 14 will correct an internal inconsistency in clause 30, which deals with the suspension of a commissioner. We noted the inconsistency in Committee. Clause 30(1) makes it clear that the threshold for suspension is that the commissioner has been charged with an offence carrying a maximum term of imprisonment exceeding two years, but clause 30(4) incorrectly refers to the limit as a maximum sentence of two years or more. The amendment ensures that those references are consistent. I have noted the suggestions of my hon. Friend the Member for Cambridge (Dr Huppert) for a better way to proceed on suspensions. We had a debate about that in Committee, and I suspect that the other place will return to the matter. The Government will pay attention to the concerns that are expressed. However, we are clear that the current threshold is proportionate, striking the correct balance between protecting the public from criminals and not suspending the public’s representative for trivial offences.

Amendment 15 will correct an inconsistent use of language in the amendments that the Bill makes to the Police Act 1996, reflecting the fact that a commissioner will have the same function of maintaining the police force in his police area as a police authority has now under the 1996 Act. Amendment 20 will ensure that, while members of a commissioner’s staff may be compelled to answer questions and provide documents to a police and crime panel, they will not be required to divulge advice that may have been provided to the police and crime commissioner. That brings the provisions on commissioners into line with the existing arrangements for the Mayor of London, which we are retaining while replacing the Metropolitan Police Authority with the Mayor’s office for policing and crime. Not doing so would weaken a commissioner’s decision making power, as all discussions could potentially be subjected to criticism, which would discourage the free and frank flow of ideas.

I apologise to the House for going into such detail, but I think that it is important to give the public clarity on the amendments. Amendments 31, 32, 38 and 39 concern the appointment of a commissioner’s chief executive. The current wording refers to a “qualified” person. However, the Bill does not impose any qualifications in respect of candidates for appointment as chief executive—in contrast to the position of the chief finance officer, who must be financially qualified in accordance with local government legislation—so there is no need to include the word “qualified”.

Amendments 33 and 40 correct a drafting error in which references to the chief constable in amendment 33 and the Metropolitan Police Commissioner in amendment 40 should have been references to the police and crime commissioner and the Mayor’s office for policing and crime, respectively. Amendments 34 to 37 and 135 to 138 are included to make references to police staff consistent with the rest of the Bill, which refers to them as “police civilian staff”. Amendment 42 is included simply to clarify the Bill. In its present wording, it is unclear what paragraph (2)5 of schedule 7 is referring to when it uses the phrase “for these purposes”. The amendment makes it clear that this means the purposes of sub-paragraph 6.

Amendment 50 will correct a minor drafting error in relation to the replacement of the strategic policing priorities with the Home Secretary’s new strategic policing requirement. It amends the section of the Police Act 1996 that deals with policing objectives, which in future will apply only to the Common Council of the City of London in its capacity as a police authority, with the effect that the Common Council will frame its objectives so as to be consistent with the strategic policing requirement, rather than strategic priorities. This will bring the Common Council into line with other policing bodies. It was our intention to achieve that outcome, but the Bill as drafted did not do so.

Finally, amendment 51 changes a reference to “authorities” in respect of arrangements for the police negotiating board to “persons and bodies”. This is simply to reflect the fact that police and crime commissioners are replacing the word “authorities” and it will no longer be applicable in this context.

[Vernon Coaker]

I thought the ending of that was brilliant.

Let me say in all seriousness to the Minister that he is introducing a change to the model of policing in this country—the biggest change for centuries—without one shred of evidence that it is the right thing to do. In his response, we heard not one study cited, not one chief police officer quoted, not one police authority quoted, not one council quoted—as I say, not one shred of evidence in support. All the Minister did was repeat what he has done before—stand at the Dispatch Box and assert that he knows best. He accuses me of elitism, but I can see where the elitism lies when it comes to someone saying that they know best. This is no way to reform the police service; it should be done on the basis of evidence.

I have a couple of quick points. I agree with my right hon. Friend the Member for Leicester East (Keith Vaz), the Chairman of the Home Affairs Select Committee, that Governments sometimes need to pause and look at what they are doing. That is the purpose of the new clause. It invites us to reflect on the evidence and on what people are saying and then to legislate and reform on the basis of that evidence, not ideological commitment. My right hon. Friend may well think that there is an alternative to Her Majesty’s inspectorate of constabulary when it comes to who is best placed to carry out the report. Perhaps his Select Committee or other bodies should be involved, but it does not alter the fact that, as he says, we sometimes need to take stock and reflect on how best to move forward and make change.

I also want to deal with what was said by my right hon. Friend the Member for Torfaen (Paul Murphy) and the hon. Member for Carmarthen West and South Pembrokeshire (Simon Hart). When the hon. Gentleman goes back to his constituency, he should tell the people he has been talking to in his local authority and others that, as my right hon. Friend said, proposals in the Bill mean that if local authorities do not nominate members for the police and crime panels, the Home Secretary will take upon herself the power to impose individuals on those panels. That is why my right hon. Friend and others from Wales are so upset by the proposals, which effectively drive a coach and horses through the devolution settlement. Yes, police and crime commissioners are a reserved matter, but local authorities are a responsibility of the Welsh Assembly. That explains why there is such upset and disquiet about the proposals in Wales.

This is a hugely important issue. As I said, the Association of Police Authorities, the Association of Chief Police Officers, the Local Government Association, council after council and ordinary police officer after ordinary police officer all oppose this measure. We have heard not a shred of evidence from the Government. That is why we say there should be an inquiry so that we can take stock, reflect and reform on the basis of evidence, not ideology. I therefore press the new clause to the vote.

Question put, That the clause be read a Second time.

--- Later in debate ---

[Tom Brake]

I think that the Minister and I would probably agree that in an ideal world it would have been useful to have a draft, but I do not think it is essential. I am sure that the House of Lords will deal with the matter in the professional way that we would expect.

It is interesting to note that initially senior officers had strong reservations about whether they wanted a protocol, so a degree of flexibility will be needed. I have some sympathy with amendment 149, but I suspect that the Minister will make it clear that there is every expectation that the police and crime commissioners will have no involvement in decisions on individual investigations and arrests. That will be a clear requirement.

The one point that may require clarification is what would happen in a case that actually involved the police and crime commissioner. For instance, if they had been assaulted, would the amendment prevent them from taking a decision about whether charges should be pressed? I do not know whether the hon. Member for Rochester and Strood (Mark Reckless) considered that in tabling the amendment, and if he has a response I would be very happy for him to intervene on me at this point. If he is not going to, the Minister might want to pick up on that point when he responds.

In an ideal world we would have been considering a draft protocol, but clearly a lot of work on it is still going on. I am sure that means that when it is put into the public domain, it will be strong and satisfy Members. As I said, I understand where the hon. Member for Rochester and Strood is coming from on amendment 149, but it is clear that there will be no expectation whatever that the commissioners will get involved in individual decisions. One would expect that the police and crime panels would have forceful things to say if they did so.

[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.

[Mr Elfyn Llwyd (Dwyfor Meirionnydd) (PC)]

Can the Minister enlighten us as to what would happen if someone breached the protocol?

[Nick Herbert]

May I come to that in a moment? I will address the status of the document shortly.

As I mentioned earlier, the Home Office has set up a transition board to discuss how the present system will migrate to the new one. One of the issues that we are discussing is the protocol; that work has begun. ACPO has nominated Chief Constable Adrian Lee of Northamptonshire police to be its representative. He will sit on a working party, alongside Home Office officials and representatives from other organisations including the Association of Police Authorities and the Association of Police Authority Chief Executives, to discuss the issue. Work is therefore ongoing.

--- Later in debate ---

[Mr Llwyd]

I thank the Minister for replying to my question in such short order, and in as much detail as he could muster. If he is saying that some form of legislative vehicle might encompass the protocol, would not regulation by statutory instrument be the obvious answer?

[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.

[Vernon Coaker]

Before I comment on the Minister’s remarks, I would like to thank my hon. Friend the Member for Bassetlaw (John Mann) for his support on the issue of the necessity for this memorandum of understanding. It was interesting that the hon. Member for Carshalton and Wallington (Tom Brake) commented on what was said by the hon. Member for Rochester and Strood (Mark Reckless)—that there was an expectation of no involvement. That is part of the problem. The Minister is right to say that the common law position precludes interference, but I am trying to deal with what will happen when the new model comes into effect, particularly the concern that it will change the parameters within which the policing model works.

--- Later in debate ---

[Chris Bryant]

Mr Speaker, I do not know whether you really want me to dilate at any point.

I was merely trying to say that, on the matter of money, which is the point at hand, there is a question about how any commissioner would be able to make sure that in advance of future elections there was enough money to be able to pay for the process of explaining to the electorate the supplementary voting system, which will not have been used in many other parts of the country. I would be grateful if the Minister were able to expand on how he will achieve that, on the precise powers that will be available to the Electoral Commission and on when he will bring forward supplementary powers in relation to that.

Having chanced my arm as far as I think you will allow, Mr Speaker, I surrender to the rest of the debate.

[Nick Herbert]

In the three minutes that are now available to me, I will have to try to explain why my hon. Friend’s approach is interesting but wrong in relation to how the precept is dealt with.

I explained in Committee the process following a veto, and the Home Secretary will set that out in regulations. They will require, as the amendment would, that the police and crime commissioner considers the panel’s recommendations and then proposes an amended precept, which must take the panel’s recommendations into account.

This is where the Bill diverges from the proposed changes, however. Under the regulations that we propose, we say that, if the amended precept is “excessive” under the definition in the Localism Bill, the police and crime commissioner will set the precept but a referendum will be triggered. The panel will not be able to prevent that, but it will be able to propose an alternative precept with accompanying reasons that will have to be published. The public will then have to decide—having both sides of the story.

[Dr Huppert]

Will the Minister give way?

[Nick Herbert]

I do not have time, I am afraid.

As we envisage the situation, the public will be able to decide whether to go with the police and crime commissioner’s precept, but only when a precept is excessive. Under the changes that my hon. Friend the Member for Rochester and Strood (Mark Reckless) proposes, however, the public would decide every time a panel vetoed a precept, unless the commissioner and the panel were able to reach an agreement within two weeks of the vote. We have not gone down that route, despite considering it very carefully, because referendums are very expensive and the police and crime commissioner would have to pay for them on each occasion. If the commissioner’s amended precept is not excessive within the Localism Bill definition, regulations will require the proposal to go again before the panel. Following that, the police and crime commissioner will be able to set the precept without a referendum. He or she must consider the panel’s recommendations. Where the panel has voted again to reject that precept, he or she must publish the panel’s alternative precept and its reasons and must set out in the same document why he or she did not implement the panel’s proposals.

I accept that the public must have a role in deciding what precept they pay, and under our policy they will have one, or potentially two, opportunities to do this—once when they elect their police and crime commissioner, and again when a police and crime commissioner sets an excessive precept.

--- Later in debate ---

[Nick Herbert]

The purpose of clause 152 is to require the consent of the Director of Public Prosecutions before an arrest warrant for war crimes under the Geneva Conventions Act 1957, and for the few other offences over which the United Kingdom has asserted universal jurisdiction, can be issued on the application of a private prosecutor.

Much of the criticism directed at this provision seems to assume that it will end the right of private prosecution for universal jurisdiction cases—a point that appeared to be made by the right hon. Member for Manchester, Gorton (Sir Gerald Kaufman) in his brief speech—and, by extension, that it will damage the principle of universal jurisdiction itself. I emphasise that this is simply not the case. Of course the provision has no effect at all on the ability of the police to investigate, and of the Crown Prosecution Service to prosecute, alleged offences of universal jurisdiction, but we think it is right that citizens should be able to prosecute these cases, grave as they are. That is why, under our proposal, anyone will still be able to apply to a court to initiate a private prosecution of universal jurisdiction offences by issuing an arrest warrant, where appropriate.

Our approach, therefore, differs from that proposed by the previous Government, which removed the right to private prosecution of offences alleged to have been committed by a foreign national on foreign soil.

[Mr McCann]

Does the Minister agree that that will prevent the silliness of people like two arch-atheists trying to bring charges against Pope Benedict when he was making an official state visit to this country?

[Nick Herbert]

I will deal with some of these points as I go on.

All that the provision will do is prevent a warrant being issued in cases where there is no realistic prospect of a viable prosecution taking place. It would not, as the right hon. Member for Cynon Valley (Ann Clwyd) claimed when she moved her amendment, give immunity to war criminals. That is not the case.

It has been argued that the consent requirement will lead to delay and allow someone who ought to be prosecuted to leave the country. That is the force of amendment 154. That is a serious point, which the Director of Public Prosecutions addressed when he gave evidence to the Public Bill Committee. I urge those hon. Members who are concerned about the provision to read, if they have not done so already, the DPP’s evidence to the Public Bill Committee, which I believe will give them a great deal of reassurance as to how he would approach the matter.

The DPP is well aware that speed is important in dealing with such applications. He explained that the Crown Prosecution Service has suitably trained staff available around the clock, and they stand ready to act immediately in emergency cases. He also had helpful advice for anyone who wants to pursue a crime of universal jurisdiction, which is that they should not wait until the suspect has arrived here, but should engage early with the CPS. He said that they

“should come to us”—

that is, the CPS—

“with whatever evidence they have, and we will undertake to look at it and to advise.”

It has also been argued, and we have heard this evening, that there is a risk of political interference, given the likelihood that the DPP would consult the Attorney-General.

[Yasmin Qureshi]

rose—

[Nick Herbert]

If the hon. Lady will forgive me, I will not give way; time is short.

I raised such a risk in questioning the DPP, but he made it clear in his evidence that

“the decision is the decision of the Director of Public Prosecutions, taken independently.”

He added that consultation between the DPP and the Attorney-General, which is regular,

“acts as no inhibition on the independence that I would bring to the decision. At the end of the day, the decision is mine, it is independent and it is reviewable.”––[Official Report, Police Reform and Social Responsibility Public Bill Committee, 20 January 2011; c. 124-130.]

As my hon. Friend the Member for Cambridge (Dr Huppert) pointed out, the DPP also said that there are powerful public interest reasons to prosecute in a case that has satisfied the evidential threshold.

The necessity for the provision has been questioned on two grounds. It is said that the sort of people whom it is designed to safeguard are already covered by immunity. Although this is true of some of the visitors against whom arrest warrants have been sought in the past, it is not true of all. Immunity from criminal jurisdiction applies to certain Ministers, and warrants have been sought against Ministers not covered and those who are not Ministers at all.

[John Woodcock (Barrow and Furness) (Lab/Co-op)]

Will the Minister give way?

[Nick Herbert]

I am sorry. I do not have time.

It is said, too, that few warrants have been issued in universal jurisdiction cases, but the problem lies in the perception that a person who is not a British citizen, does not live here, and indeed has no connection with this country apart from being present here, might be at risk of arrest for a very grave crime where there is no prospect of a viable prosecution. That such an occurrence is rare misses the point. The fact is that people who are, or have been, in leading positions in their countries, with whom the Government would wish to engage in discussions, may be discouraged from coming here. That is our concern. That, in turn, creates a risk of damaging our ability to help in conflict resolution or interfere with foreign policy.

Amendment 154 would require special units to be set up in the police and the CPS. The responsibility for investigating universal jurisdiction cases lies with a specialist unit of the Metropolitan police. That unit has the specialist skills and expertise required to conduct those cases, or to decide that an investigation in this jurisdiction is not warranted or feasible. The unit is best placed to evaluate the prospects of being able to protect witnesses or secure their evidence at any trial, identify an individual responsible for the particular conduct to the criminal standard, and deal—

Oral Answers to Questions

Lord Herbert of South Downs Excerpts

Tuesday 29th March 2011 Commons Chamber

[Lorraine Fullbrook (South Ribble) (Con)]

6. What proportion of the cost of accommodating foreign national prisoners awaiting deportation after serving their sentences is provided by his Department.

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

Currently, about 40% of the cost of accommodating foreign national prisoners who have completed their sentence and are awaiting deportation is borne by the Ministry of Justice.

[Lorraine Fullbrook]

The Prime Minister has, on a number of occasions, expressed his desire to see such prisoners deported after serving their sentence. Why are they not then transferred to secure immigration centres in readiness for their immediate deportation after their sentence is completed?

[Nick Herbert]

I agree with my hon. Friend that that is what we should be aiming to do. Wherever possible, detainees should be transferred to immigration removal centres. We are opening a new centre and the majority of detainees are already in those centres. We want to ensure that that number increases.

[Andrew Gwynne (Denton and Reddish) (Lab)]

7. What plans his Department has for the future of the probation service.

--- Later in debate ---

[Lindsay Roy (Glenrothes) (Lab)]

10. How many foreign national prisoners he expects to have repatriated in 2011.

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

In 2010 about 5,000 foreign national prisoners were removed or deported. However, the number transferred through prisoner transfer arrangements is too low. We expect to transfer about 50 prisoners this year. The Government believe that foreign national prisoners should serve their sentence in their own country, and we are seeking to secure further compulsory prisoner transfer agreements wherever possible.

[Lindsay Roy]

I thank the Minister for his detailed answer. Can he explain why that small number differs so markedly from the autumn predictions of the Prime Minister that thousands would be repatriated? What is holding things up, or was that just a wild estimate or a rash promise?

[Nick Herbert]

As I said, more than 5,000 prisoners have been removed. Of course, the situation will change in December when the EU prisoner transfer agreement comes into force. As a consequence of that, we will be able to remove many more prisoners to serve their sentence in other countries.

[Simon Hughes (Bermondsey and Old Southwark) (LD)]

I thank the Minister for his robust answer. Of the nearly 200 countries in the UN whose citizens could potentially be here in prison, do the Government have any targets for the number of additional agreements we expect to implement outside the EU, or in particular to implement with those countries whose citizens constitute the largest number of prisoners in this country when they should be somewhere else?

[Nick Herbert]

We have to negotiate this with individual countries. We cannot simply remove prisoners to countries to serve a sentence there unless those countries accept it, but we can compulsorily remove prisoners if the countries agree. We already have agreements with Uganda, Rwanda and other countries, and an agreement is being negotiated with Nigeria. We would like to negotiate as many more arrangements as we can, but some countries simply disagree.

[Mr Adrian Bailey (West Bromwich West) (Lab/Co-op)]

11. What discussions he has had with representatives of the Serious Fraud Office on his proposed guidance in respect of the Bribery Act 2010.

--- Later in debate ---

[Karen Lumley (Redditch) (Con)]

13. How many prisoners convicted of violent offences and released under the early release scheme between 2007 and 2010 have since been returned to prison.

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

Over 80,000 prisoners were released under the end of custody licence scheme. Over 16,000 of these were violent offenders, of whom 494 were recalled to custody during the ECL period. It is not possible to calculate how many were recalled or imprisoned for a new offence after the ECL period.

[Karen Lumley]

I thank the Minister for his answer. Will he inform me of his plans to avoid a repetition of the shambolic and incoherent justice policy that saw a mass early release of many prisoners, many of whom went on to commit new offences and were returned to jail?

[Nick Herbert]

I can reassure my hon. Friend that we will do everything possible to avoid a return to the scheme that was cynically stopped by the previous Government just before the last election, but not before they had released over 80,000 prisoners. There were 1,600 alleged offences committed by the prisoners who were released early, including six serious further offences and one murder. The Opposition should certainly not be lecturing us on that area.

[Margot James (Stourbridge) (Con)]

14. What steps he is taking to support drug rehabilitation in prisons.

--- Later in debate ---

[Mr David Hanson (Delyn) (Lab)]

The Minister for Policing and Criminal Justice mentioned the repatriation of Nigerian prisoners and the contract that is being signed. Will he tell the House, following three years of discussion by the previous Government, how many prisoners from Nigeria have been repatriated this year and how many more he expects to repatriate next year?

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

The Nigerian Government and Parliament have to agree to it, as the right hon. Gentleman knows, and we are awaiting that.

[Richard Drax (South Dorset) (Con)]

Morale among the prison officers in the two prisons in South Dorset is at an all-time low. Will the Minister reassure me that their rights will be upheld as well as the prisoners’ rights?

[Valerie Vaz (Walsall South) (Lab)]

The Forensic Science Service provides impartial evidence to the courts. What discussions has the Secretary of State had with it to secure its future and ensure that its primary duty remains to the court, not to shareholders?

[Nick Herbert]

As the hon. Lady will know, there have been considerable difficulties in relation to the Forensic Science Service, and we have been in extensive discussions with it about how we can ensure the future provision of forensic services.

[Mr Peter Bone (Wellingborough) (Con)]

The Prison Minister is being very quick in his answers. Could he be very quick in answer to this question? Will he confirm that Wellingborough prison is not to close?