Criminal Justice Bill (Fourteenth sitting)

Alex Norris Excerpts

Committee stage
Thursday 25th January 2024 Public Bill Committees

[The Minister for Crime, Policing and Fire (Chris Philp)]

It is a pleasure once again to serve under your chairmanship, Sir Robert. I rise to reply to the thoughtful speeches given before lunch by the shadow Minister, the hon. Member for Nottingham North, and the hon. Member for Birmingham, Yardley, on various amendments and new clauses related to clause 73.

The Government are extremely clear on the need for substantial improvements to police standards, which is why last August they announced in principle a series of significant reforms to strengthen the disciplinary, vetting and performance systems in policing. Those changes, on which we have had detailed engagement with stakeholders, are being progressed at pace, and the work already under way relates to many of the amendments.

With the exception of the amendment made by clause 74, the reforms that we propose to introduce can be delivered by secondary legislation using existing regulation-making powers. I will go through the detail of some of that in a moment. The work on that is under way as we speak, and we expect to lay the relevant regulations before Parliament this side of the summer recess. We anticipate that part of those changes can be brought into force as soon as the spring, with the rest of the measures being introduced a little later, but in any event before summer recess. The announcements made in August are being implemented; work is happening on that as we speak, and will be delivered fairly imminently.

To replicate or cut across that work by legislating here would in fact delay the implementation, because we would have to wait for the Bill to pass and then for any subsequent regulations to be made. The Government agree with the substance of a lot of what the amendments and new clauses do. We have already committed to that in our August response, and the regulations to implement that legally are being worked on at the moment. That is an overarching point that applies to almost all the work in this area.

There is one item that can be done only by primary legislation, which relates to the right of a chief constable to appeal. If a chief constable is in a two-to-one minority when a misconduct panel chooses not to dismiss an officer, but the chief constable thinks they should be dismissed, at the moment the only remedy is a judicial review, so we will create a right of appeal for the chief constable to the police appeals tribunal. That is in clause 74. Everything else that we want to do, the Opposition would probably broadly agree with.

The changes that will be set out in regulations include but are not limited to: introducing a presumption that an officer will be dismissed where there is proven gross misconduct; and providing that conviction for certain offences will automatically be considered to amount to gross misconduct, meaning that dismissal will follow.

[Alex Norris (Nottingham North) (Lab/Co-op)]

Should I expect that the offences in my amendment are likely to form part of those offences?

[Chris Philp]

Broadly speaking, yes. That will be set out in regulations, but the principles that we are debating are broadly speaking matters of consensus, as he will have seen from the statement that we made in August.

I have listed two of the changes that will be set out in regulations. Another thing, which I have mentioned before, is introducing a statutory requirement to have and maintain vetting, which I think is in the College of Policing’s code of practice, published in July, and has been implemented, but we intend to put it on a statutory footing by changing the regulations in the spring; it needs to be on a statutory footing as well. That is one of the changes we will make.

There will be a clarified and expedited route for removing officers who fail to maintain vetting, and there will also be measures to streamline and speed up disciplinary proceedings. One of the complaints we have heard from chief constables who are trying to clean up their forces quickly, including Sir Mark Rowley, the Met commissioner, as well as from campaigning groups, is that these proceedings take a very long time, which is unfair on victims and undermines public confidence; it is also unfair on officers to have proceedings hanging over them for a long time, and quite a lot of money is wasted, because often officers are suspended on full pay while investigations take place.

The very long, legalistic and convoluted process is not good for anybody—not for the taxpayer, the victims, public confidence, or the officer who stands accused—so we are making changes to speed the process up. Those changes include the presumption that there will be fast-track hearings, in which the chief constable makes a unilateral decision without a panel or a tribunal, for officers or special constables who have resigned or retired. We intend to make the chief constable chair the panel, rather than the legally qualified chair.

There were good intentions behind the introduction of a legally qualified chair; it aimed to make the process better, but it has turned the process into a legalistic one, almost like a Crown court trial with disclosure hearings, and the hearings take a week or two. Very often they do not dismiss the officer when the chief constable wants to dismiss them. The only remedy at the moment is to judicially review that decision. The chief constable ends up having to JR a decision of a panel on which he or she was a minority but was overruled by the legally qualified chair.

We think that whole thing has become too legalistic and too convoluted. Chief constables who want to clean up their force have not been able to. Making the chief constable chair will de-legalise the process quite a lot. There will still be two independent members of the panel, so there is an independent element. There will be a legally qualified adviser to make sure that the process is fair, but the chief constable will chair it.

There is then, of course, a right of appeal. If a police officer thinks that they have been unfairly dismissed, they can, as now, appeal to the police appeals tribunal. If the chief constable ends up in a minority, with the other two independent members voting to keep an officer and the chief constable wanting to dismiss them, and the chief is not very happy about that, they can then appeal to the PAT, rather than having to judicially review. That is in clause 74.

For completeness—this is not a misconduct issue but is worth mentioning—we will also streamline the performance process. This is not about misconduct; it is about where an officer is just not performing—they are not showing up for work, not doing the job properly, or whatever. At the moment, the process to remove someone on performance grounds is very convoluted. It has three stages, each of which has an appeal, so it is effectively a six-stage process. Sometimes it can take years. I do not think it serves the public interest for an officer who is not performing to be on the payroll for years and years. We will significantly streamline that process. Obviously, there will be some safeguards, so that chief constables cannot arbitrarily fire police officers unfairly, but it needs to be streamlined. Police leaders have asked for that. If we are asking someone to lead a police force, or any organisation, they need to have more control of who serves in uniform.

Those are some of the broad principles of the changes being made. I will move on to talk in a little more detail about some of the new clauses and amendments. I have set out what we will do through regulations—things that I think the Opposition will agree with us on. We all have the same objectives; I do not think these issues are contentious, politically.

New clause 6, tabled by the Mother of the House, the right hon. and learned Member for Camberwell and Peckham (Ms Harman), and spoken to by the hon. Member for Birmingham, Yardley, would create a power to create regulations that “may provide”—not must—for automatic dismissal for certain criminal offences. As I said, we will provide for that in regulations this spring; conviction of certain offences will automatically constitute gross misconduct, and there is a presumption that when gross misconduct occurs, dismissal follows. That will be taken forward in regulations, as I set out.

New clause 7 would introduce automatic suspension for officers in certain circumstances, which is covered by regulation 11 in the Police (Conduct) Regulations 2020. I will undertake to come back to colleagues on or before Report with confirmation of whether there should be—I mention this for illustrative purposes—automatic suspension when an officer is charged with an indictable offence, or a presumption of suspension if an officer is charged with an either-way offence. Those measures would be implemented via an amendment to regulation 11 in the 2020 regulations, but members of the Committee will discern the likely direction of travel from my comments.

I spoke to new clause 8, on the requirement to vet, in my introductory remarks. The College of Policing’s code of practice was issued in July under section 39A of the Police Act 1996, which already sets out this requirement, and we will nail it home with a cast-iron hammer—I am struggling to find the right metaphor here.

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[Chris Philp]

I can confirm to the hon. Member that I will definitely use the hammer in the right way. In the Prime Minister’s defence, it was suggested that he had been told to use the hammer in that way, but I do not know. [Interruption.] My hon. Friend the Member for Wyre Forest has confirmed that the Prime Minister was told to use the hammer in that way. With a cast-iron hammer, we will make sure that the requirement sticks, by enshrining the change through the regulation changes we make in the spring.

New clause 9 would introduce a requirement on police officers to hand over their personal mobile phones where there is suspicion that they have behaved in a way that could amount to gross misconduct. This is a little more problematic, because it says that someone who is not accused of a criminal offence, but is simply suspected of having committed misconduct, has to hand over their personal phone. That is quite intrusive, and there are possible issues with regard to article 8 of the European convention on human rights. I noticed that the shadow Minister moved and voted for an amendment earlier despite my saying that it would infringe the ECHR. Some of my colleagues would no doubt find common cause with him on that.

[Alex Norris]

It is slightly challenging for the Minister to impugn my commitment to the ECHR based on legal advice that he has seen, but which he has never proffered to me.

[Chris Philp]

I did make that point in our exchange, and the hon. Gentleman did not press me on it. He did not contradict my legal analysis.

There are some ECHR article 8 concerns about compelling somebody to hand over their personal mobile phone simply on suspicion of a workplace issue. I think we would be a bit concerned if a constituent’s employer could make them hand over their mobile phone because of an employment-related issue.

Some of the most worrying conduct that we have encountered among the police involves inappropriate messages on WhatsApp groups at Charing Cross police station and elsewhere. In some cases, such behaviour might amount to a criminal offence. I should make it clear that I am not making any allegation about that incident, but in general terms, sharing inappropriate content could amount to an offence—for example, under the Malicious Communications Act 1998 or, indeed, to the common-law offence of misconduct in public office. Where there is criminality, the usual Police and Criminal Evidence Act 1994 power to seize mobile phones would apply.

It is also worth saying that if the Independent Office for Police Conduct is investigating for misconduct, is lawfully on premises and has reasonable grounds for believing that misconduct has occurred, it has some powers to seize mobile phones in those circumstances. It is a good question to ask, but creating a general power to seize an officer’s personal mobile phone strays a little too far into the rights enshrined in article 8 of the ECHR, which I know is very close to the shadow Minister’s heart—or so he tells us.

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[Chris Philp]

I am extremely grateful to the hon. Lady for drawing my attention to amendment 134, which I had momentarily overlooked. It is a fair point to raise.

For the Committee’s benefit, evidence placed before the family court is currently not considered when vetting decisions are taken. The family court will consider things such as child custody cases, for example, and it may be that allegations are made in the family court of domestic abuse or even more serious matters such as rape. The family court may, on occasion, make a finding of fact, where it finds on the civil standard of the balance of probability—not the criminal standard, which is beyond reasonable doubt—that a particular thing has happened, which could be a criminal offence. It is not a criminal conviction. It is not beyond a reasonable doubt, but on the balance of probability.

Family court proceedings are closed, and they are not, generally speaking, published, so that information is not available to take into account during vetting. Of course, police doing vetting do not know which officer may or may not have been involved in child custody proceedings. The vast majority will not, of course, but a small number will. Because that information is generally not published, in order to get hold of the information, the police would have to either ask for their officers to self-disclose that they had been subject to proceedings—there is obviously the possibility that the officer would lie, particularly if there was an adverse fact—or make individual applications for each case to the family court to disclose first whether there had been proceedings and secondly, if there had been proceedings, whether the findings of fact could be disclosed. It may be that the family court would not disclose that information, because that is a decision for the family court judge.

[Alex Norris]

Will the Minister give way on that point?

[Chris Philp]

I will in just a moment.

There are considerable practical obstacles to getting hold of that information. Of course, if the matter that is put before the family court in the process of child custody proceedings is criminal in nature and it is then reported to the police, even if there was no conviction, for whatever reason, that would then be on the police national database. The gap would arise if a party to family court proceedings made an allegation to the family court, the family court upheld it on the balance of probability and then the victim did not even allege to the police—let alone get a conviction—that this criminal conduct had occurred. Then the police would not know about it. That is the sort of intersection of the Venn diagram we are talking about.

The main point is that there are some significant practical obstacles, and I cannot immediately think how to overcome them. If there are ideas, I would be happy to hear them.

[Alex Norris]

rose—

[Jess Phillips]

rose—

[Chris Philp]

I think the shadow Minister was up first, and then I will give way to the hon. Lady.

[Alex Norris]

The Minister might have gone past this point now, but I merely wanted to see whether he accepts that one way to manage practical hurdles is through primary legislation, so that later on he can consider options that in principle might help to overcome some of those hurdles—or is this, in substance, a bridge too far for him?

[Chris Philp]

I would be interested to hear, including via an intervention in response to this, how we would craft that—what legislative measure we could pass that would essentially open up what are currently closed proceedings within the ambit of the family courts to the police vetting process. I will happily give way if the hon. Gentleman can suggest that or come back to me later on.

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[Jess Phillips]

Everyone will be pleased to hear that I have only a few paragraphs to read.

Clause 74 has been proposed with a view to strengthening the oversight of police chiefs. Although this is an important goal that the Bill seeks to achieve, the clause in its current form is misguided. If clause 74 seeks to address inadequacies in internal processes, the Government must instead implement measures to improve the efficacy and independence of the system, rather than delegating these powers to police and crime commissioners.

Disciplinary procedures must be independent and not subject to political influence, which would be a huge risk if the power to refer a police chief to a police tribunal sits with PCCs. In order to maintain the integrity of the system, these powers must sit with an independent body. The Independent Office for Police Conduct has been established specifically to hold police behaviour to account, so we should give the powers to refer a police chief to a tribunal to an organisation that exists to uphold police integrity.

I do not wish to besmirch any particular PCC, but having spent nine years in this building trying to overcome, and make processes to overcome, political interference and political patronage in cases of misconduct, I am always anxious when politicians and friends mark the homework of their friends.

[Alex Norris]

To some degree, the Minister has made the case for the clause already, but we support that element. It relates, of course, to the dismissals review commissioned in the light of the Casey review.

I did not hear this from the Minister, but—I think this speaks to the point that my hon. Friend the Member for Birmingham, Yardley has just made—we should not throw the baby out with the bathwater when it comes to the input of individuals who are independent. I know that that was not the point that the Minister was making about legally qualified chairs. I understand the point he was making about some of the delays and how unintentionally cumbersome the system has become. Nevertheless, as my hon. Friend said, the principle of independence is important for public confidence in the system. It would doubtlessly be an odd quirk if we got stuck with a system that had been designed to stop chief constables protecting staff who perhaps should have been dismissed, but which actually had the opposite effect in some cases of officer misconduct at more junior ranks. Having spoken to chiefs, I know there are frustrations there.

Again, the most important thing is that the process is fair, transparent and as simple and speedy as possible, so of course a judicial review cannot be a part of that process. That is of course wrong, so changing to a different appeal mechanism is probably a good thing to do. That leaves me with only one question for the Minister. This clause does not make the regime that he has mentioned and that I have spoken about, but gives the powers to make such a regime. I wonder why regulations are preferred for that and whether he has a sense of the timing for that and for the consultation, because clearly there will be a lot of interest in that—I am talking particularly about proposed new subsection (1A) of the Police Act 1996. I would be interested to hear the Minister’s rationale.

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[Alex Norris]

I am grateful to the Minister for giving way. I would not want to pre-empt anything I might say in the debate, but I wonder whether she might join me in praising my hon. Friend the Member for Bootle for tabling new clause 15—he has had more success with his new clause than I have had with any of my amendments or new clauses—and my hon. Friend the Member for Bradford South (Judith Cummins), who has shown real leadership on this issue.

[Laura Farris]

I am grateful to the hon. Member for his intervention. I have no hesitation in congratulating and thanking all the members of the Committee, and Members across the House, for what they have done to help us on this issue.

The drafting of new clause 45 seeks to strike a balance between reflecting that the offences cover spiking, while ensuring that the other behaviour caught by the offences remains covered. For example, section 24 of the 1861 Act is also used to prosecute incidents of potting, where prisoners use urine or faeces to assault a prison or police custody officer. I hope that we can all agree that it is important that that behaviour is still captured by the criminal law. The new clause also alters the mode of trial for these offences, from indictable-only to triable either way. That means that a case can be progressed in either the magistrates court or the Crown court, rather than only in the Crown court.

Members will probably have already seen that, to some extent, the new clause replaces antiquated language. It uses language that we are much more familiar with in modern criminal law: terms such as “intentionally” and “recklessly”. Importantly in relation to spiking, it refers to a “harmful substance”, which is defined with reference to “poison” and “destructive or noxious thing”, but we have lost the language of poisoning, which was previously the headline in such offences. That language imported something that some police officers felt was quite unhelpful in understanding the precise nature of the offending that was taking place. Our amendments do not intend to change the existing approach to the mental element that is required as part of these offences.

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[Vicky Ford (Chelmsford) (Con)]

I just want to say how incredibly grateful and pleased I am to see this language before us in the Bill. As the hon. Member for Bootle just said, I am one of the Members who has campaigned on the issue of spiking for a number of years, alongside the great leadership of my hon. Friend the Member for Gloucester.

Chelmsford has some fantastic nightclubs, with a great reputation for being safe. I do not want to put people off going out and having a great time, but when spiking occurs it can have a horrific impact on the victim. We have said for a long time that the language needs to be modernised to make it crystal clear that spiking is a criminal offence, and new clause 45 does that. That helps not only to protect victims but, almost more importantly, to deter perpetrators. We want to stop the crime, so that people do not have to become victims. There are too many victims—mostly women, but it can impact men—of this crime.

Will the Minister clarify that, when it comes to how the substance is administered, the provision will cover not only a drink or a jab, but spiking through vapes, which we are hearing more about? I thank the Government for the number of measures that they have announced to go alongside the provision, such as trialling new ways to test drinks so that people can see whether something has been put in them. That would also help to eradicate this crime. We also need more public awareness so that victims know, if they have been spiked—often they are not in a condition to do anything about it immediately, as it can have such an awful impact—that something as simple as collecting a urine sample can make so much difference to getting the evidence to hold people to account.

[Alex Norris]

I rise to add our support to new clause 45, which is important. Spiking is a coward’s crime, as is potting, but we know that it is a stock in trade for a very small number of people who can have a devastating impact on people’s lives. It is an exceptionally harmful and dangerous practice. I congratulate colleagues on both the Opposition Benches and the Government Benches, as well as the Government themselves, on bringing the measure forward.

Legislation is clearly only part of the process. We need cultural change and strong messages. People need to hold each other to account and tell each other how important it is not to do things like this, because they are so dangerous. The right hon. Member for Chelmsford made the important point—we will hear the Minister’s response—that, to the extent that it can be, the law should be agnostic on the method of transmission. As technology changes, those who choose to do such things for their own ends will use whatever methods they can. That spiking could be done by vaping was new to me, but it seems obvious that that would be possible. I am keen to know how the legislation can keep pace with that.

[Laura Farris]

I pay tribute to my right hon. Friend the Member for Chelmsford, who has been an important voice on the issue. When I made a statement to the House just before Christmas, I thanked everybody: my hon. Friend the Member for Gloucester, the right hon. Member for Kingston upon Hull North and the hon. Member for Bradford South. Theirs have been important voices, and they have been helpful to us as we have worked our way through this issue.

I did not set out our thinking in my initial remarks, so it might be helpful for me to do so. First, it was said that spiking was covered by other offences, but when we look at the language of the Offences against the Person Act, it is accurate to say that parliamentarians at the time had something different in mind. We can tell that just by reading the legislation.

Secondly, all parliamentarians are familiar with being told that something is already covered by another law, but it is worth asking, “Would this particular offence be better captured in a defined way?” We have done the same with offences such as stalking in the life of this Parliament. For lots of offences, it is possible to think, “Can we crystallise the offence in a more accurate way?” That was material to our thinking, and that is why we have made these changes. I hope that that is helpful to the Committee.

I reassure my right hon. Friend the Member for Chelmsford that all forms of spiking are included, whether by needle, vape, drink or a food substance. New clause 45 is deliberately widely constructed so as to capture the whole range. She made a point about urine testing. We have been told by police that the biggest barrier to conviction is that even if the victim reports the incident the following morning and immediately gives a sample for a toxicology test, they can be left with the disappointing news that the substance has left their body, even though the police often accept that everything that they and perhaps their friends are describing is consistent with a spiking incident. That is why investment in rapid drinks testing kits, which are at a nascent stage, has been a big part of the non-legislative measures. If we can get those up and running, we can roll them out across night-time venues to facilitate on-site testing without having to go through the standard toxicology route. We think that would be really helpful in getting convictions.

We have been working with the Security Industry Authority on the training of nightclub doormen and bouncers. From April this year, there will be a condition for any new nightclub bouncer entering the industry to have specific training on spiking. From September, we will begin a refresher element, including a spiking course, for those already employed in the sector. It is anticipated that, within three years, all nightclub bouncers will have had had specific night-time training, and we are doing something similar with bar staff.

There is also a national reporting tool, which is currently operated by 20 police forces in England and Wales. It is being rolled out, but about half of the forces are using it. It allows people to report spiking anonymously. That does not have to be the victim; anyone who has seen something that they think is consistent with a spiking incident can make a report. That will help forces to develop a clearer picture of where spiking is happening and whether there are hotspots or problem areas, which will allow them to intensify the police response. Finally, we are doing some police intensification work.

I have probably gone on too long. Suffice it to say that dealing with spiking properly requires more than a change in the law, but we do think a change in the law is necessary and desirable, and we therefore hope that Members will support new clause 45.

Amendment 147 agreed to.

Amendment made: 50, in clause 77, page 69, line 12, at end insert—

“(5) Nothing in subsections (1) to (4) limits the extent within the United Kingdom of the armed forces provisions.

(6) Section 384(1) and (2) of the Armed Forces Act 2006 (extent outside the United Kingdom) applies to the armed forces provisions as it applies to the provisions of that Act.

(7) In subsections (5) and (6) the “armed forces provisions” means—

(a) a provision made, or inserted, by or under this Act so far as it is applied (by whatever words) by or under the Armed Forces Act 2006;

(b) an amendment, modification or repeal made by or under this Act of—

(i) a provision of or made under the Armed Forces Act 2006,

(ii) a provision that amends, modifies or repeals a provision of, or made under, that Act, or

(iii) any other provision, so far as the provision is applied (by whatever words) by or under that Act.”.—(Chris Philp.)

This amendment makes provision about the extent of provisions of or made under the Bill which relate to the Armed Forces Act 2006.

Clause 77, as amended, ordered to stand part of the Bill.

Clause 78

Commencement

Amendments made: 45, in clause 78, page 69, line 18, after “sections” insert

“(Testing of persons outside of police detention for presence of controlled drugs),”.

This amendment makes provision to bring NC13 into force on Royal Assent for the purpose of making regulations and issuing codes of practice.

Amendment 131, in clause 78, page 69, line 18, leave out “, 21 and 34” and insert “and 21”.

This amendment and amendment 132 provide for the clauses about serious crime prevention orders to be brought into force by regulations.

Amendment 46, in clause 78, page 69, line 18, after “regulations” insert

“or issuing codes of practice”.—(Chris Philp.)

See the statement for amendment 45.