Policing and Crime Bill

Baroness Chisholm of Owlpen Excerpts

Committee: 2nd sitting (Hansard - part one): House of Lords
Wednesday 26th October 2016 Lords Chamber

Moved by

[Baroness Chisholm of Owlpen]

123: Schedule 3, page 230, line 19, after “occupied” insert “(wholly or partly)”

[Baroness Chisholm of Owlpen (Con)]

My Lords, as the way in which policing is delivered evolves, it is important that the powers and remit of Her Majesty’s Inspectorate of Constabulary also evolve to ensure that it remains able to inspect and report on the totality of policing.

As forces rightly place an increasing emphasis on collaboration between emergency services, certain policing functions, such as answering 999 calls, may be delivered by employees of other emergency services without any formal contractual arrangements in place. HMIC must be able to require access to information and premises from these other services when they are related to the delivery of policing functions. That is what these amendments will achieve.

Amendments 165 and 166 extend the definition of a police force for the purposes of an inspection to include non-policing bodies delivering policing functions, even where there is no formal contract in place. In keeping with the scheme provided for in the Bill, such other persons delivering policing services would not be able to appeal against an information notice served on them by HMIC. Amendments 123 and 164 give HMIC and the new inspectors of fire and rescue authorities access to premises in which other services are delivered alongside those that they are inspecting; for example, HMIC would be able to access premises shared by a police force and a fire and rescue service.

I trust the Committee will agree that these are sensible refinements of the inspection provisions in the Bill. I beg to move.

Amendment 123 agreed.

--- Later in debate ---

[Lord Blair of Boughton (CB)]

I am slightly concerned about the phrase “provisional findings”, because it does not define when that is in an investigation. I should declare an interest that I was head of the complaints investigation branch of the Metropolitan Police Service, the subtitle for whom was the “Prince of Darkness”. One knew the provisional findings, but one had that word “provisional” in front. It slightly worries me that we are pushing a process forward where the complainant is given information that new information then changes. It feels an odd thing to be doing. I would like to know why it has been withdrawn in this Bill, as it may have been withdrawn on quite sensible grounds.

[Baroness Chisholm of Owlpen]

My Lords, the current process for keeping complainants and other interested persons updated on the handling of their complaint is overly complicated, with Sections 20 and 21 of the Police Reform Act 2002 heavily prescriptive on what exactly a force, or as the case may be the local policing body or IPCC, must do and when. This often results in a box-ticking process and perverse outcomes rather than any genuine consideration of what is best for the complainant.

The Bill simplifies this process. Clause 14 amends Sections 20 and 21 of the 2002 Act to create a broad statutory duty on forces to ensure that they keep relevant parties updated on the progress of the handling of the complaint, the outcome of the complaint, and any right of review. This allows for many of the various notification duties on appropriate authorities currently scattered throughout Schedule 3 to the 2002 Act to be consolidated into one place, and for Sections 20 and 21 of that Act to be extended beyond just complaints where there was an investigation.

This broad requirement is in line with the wider changes to the complaints system where the various routes for resolving a complaint—for example, disapplication, discontinuance and local resolution—have been replaced with a general duty to consider the reasonable and proportionate response to a complaint. Greater discretion for forces in deciding how to keep the relevant parties updated on progress reflects the wider intention to trigger a culture change in forces in the handling of complaints. We want a system that encourages proper consideration to be given to the needs of the complainant, rather than officers simply following a very set procedure regardless of the nuances of the case.

I want to reassure the noble Lord that the Government fully expect that where there has been an investigation into a complaint, updating complainants on the progress of the handling of the complaint will include forces informing them of any provisional findings of that investigation. In keeping with the overall intention to simplify the complaints system and to empower forces in how they deal with complaints, this is not something we consider is necessary to prescribe in primary legislation. Instead, it is for the IPCC to consider whether what is meant by updating on the progress of the complaint is better explored in IPCC statutory guidance. Guidance may be able to better reflect best practice and the principle that all cases need to be treated slightly differently.

The noble Lord, Lord Harris, asked about keeping victims of crime informed on progress. He makes a valid point about victims of crime, but this is not a matter for these clauses. We have a later amendment about the rights of victims of crime.

--- Later in debate ---

[Lord Kennedy of Southwark (Lab)]

My Lords, this section of the Bill gives the power to designated bodies to make super-complaints to Her Majesty’s Chief Inspector of Constabulary. The complaints can be made where, in the opinion of those bodies, a feature of policing is harming the public and needs to be looked at.

The noble Lord, Lord Paddick, listed three organisations to make these super-complaints to be put on the face of the Bill. I have some sympathy with the amendments that have been put forward, but I understand that they are probing amendments. I hope that when the noble Baroness replies she can give us some indication of the organisations likely to be designated to make these complaints under the regulations. It is important that, when creating these new powers, we have some idea of what the organisations are likely to be. Are those listed in the amendment likely candidates to be designated when this comes into force, or are there others?

[Baroness Chisholm of Owlpen]

I am grateful to the noble Lords, Lord Paddick and Lord Kennedy, for the opportunity to debate the provisions in the Bill that will create a new system of policing super-complaints.

There are currently three extant super-complaints systems, having been originally created in the Enterprise Act 2002. These systems exist in the commercial sector, the financial system and in payments regulation. All relate to systemic issues affecting consumers relating to private sector organisations. The police super-complaints system, although based on the success of these antecedents, will be the first such system to address issues in the public sector.

A super-complaint is defined in Clause 24 as a complaint that,

“a feature, or combination of features, of policing … by one or more than one … force is, or appears to be, significantly harming the interests of the public”.

Only bodies designated for the purpose of these provisions will be able to make a super-complaint, but any body can be designated if it meets the relevant criteria. Those criteria for designation will, following consultation, be laid out in regulations. The system will be “owned” by the HM Chief Inspector of Constabulary, so as to be sufficiently independent of government. Ultimately, this system will allow charities and advocacy groups to raise systemic issues they identify in policing in a more effective way, leading to the improvement of policing in England and Wales.

I turn now to the noble Lord’s amendments which focus on the regulations relating to designated bodies and the designation process contained in Clause 25. The designated bodies able to make a super-complaint will be set out in regulations. Amendment 128 would require the Government to consult on such regulations. We have provided in Clause 25 for consultation on the regulations setting out the criteria for designation, but we do not believe that it is appropriate to consult each and every time a new body is given designation status. Any body that is so designated will have been assessed as meeting the criteria for designation. The Government believe that the criteria are the key to getting the right bodies involved in the system. This is why it is the criteria rather than the bodies themselves that will be subject to consultation. Following consultation on the criteria, further consultation on the resulting list of designated bodies would be unnecessary and, if conducted every time a body is designated, would be burdensome.

On Amendment 129, the Government agree that the nature of the bodies involved in the super-complaints system is key to its success. That is why we shall be consulting widely on the criteria for designation. Furthermore, the Government intend to include a requirement in the criteria for designated bodies to act as umbrella bodies for smaller organisations. This will ensure that any bodies that notice a systemic issue with policing, but are not designated, are still able to raise an issue through another organisation.

We have engaged with a number of key bodies, including Citizens Advice, in the development of this policy. We will continue to work with these bodies throughout its implementation to ensure that the system works in the public interest. It will of course be open to Citizens Advice, the Law Society and the National Council for Voluntary Organisations to apply for designated body status, but that decision is a matter for them. The Government would welcome the input of your Lordships on any particular bodies or organisations that may work towards the improvement of policing through becoming designated bodies.

Amendment 130 would require the first regulations made in relation to designation to be subject to the affirmative procedure. The Government set out the rationale for applying the negative procedure to these regulations in their delegated powers memorandum. That memorandum has been considered by the Delegated Powers Committee which did not take issue with the application of the negative procedure whether on the first or subsequent exercise of these powers. The negative procedure is consistent with the legislative framework applicable to existing super-complaints systems and I see no good case for departing from it here.

Having given these provisions in the Bill the airing they deserve, I hope that the noble Lord will be content to withdraw his amendment.

[Lord Kennedy of Southwark]

The noble Baroness has talked about consultation on the regulations. Is there a timescale for when that will take place because obviously the Government will complete their consultation and make a decision before the regulations come into force? Can she give us some idea of when it will be?

[Baroness Chisholm of Owlpen]

If there is a timescale that we know of, I will write to the noble Lord, but I do not have it here in my notes.

[Lord Harris of Haringey]

My Lords, it is clear that the Government have given a great deal of thought to the concept of super-complaints. Have they made any assessment of how many such super-complaints might be presented and what proportion of the time of Her Majesty’s Inspectorate of Constabulary is likely to be devoted to looking into such matters?

[Baroness Chisholm of Owlpen]

We do not know how many super-complaints will be made because it is difficult to judge that. The point about the super-complaints is that they will make an enormous difference to the way things are done. It was interesting to note that in March this year the then shadow Home Secretary, Andy Burnham, held a seminar with the noble Baroness, Lady Lawrence, which brought together groups that are still campaigning for justice, such as the Shrewsbury 24 campaign, the Orgreave Truth and Justice Campaign, and Justice 4 Daniel. A common thread runs through all of these groups but the way the system works at the moment forces them all to plough their own furrow; it does not allow them to join forces. The super-complaint proposal will rebalance the system in their favour and mean that they can join together.

[Lord Kennedy of Southwark]

My Lords, perhaps I may pursue the point about the regulations one more time. The noble Baroness has said that there is no timescale but that she will write to me if she can find out if there is. I should say to her that this issue is very important to the campaigns she has just listed. If this legislation gets on to the statute book without us knowing where we are with the regulations, of course it cannot come into force. I hope that she will take back to the department and her ministerial colleagues that the consultation should be done with the utmost urgency. There is no point in passing the legislation if people cannot actually make their complaints.

[Baroness Chisholm of Owlpen]

I do not have a timescale. I do not want to give the noble Lord false information, so it is only fair that I write to him.

[Lord Paddick]

My Lords, I am very grateful to noble Lords who have contributed to the debate, and for the response given by the Minister. I have a confession to make: I did not write the amendments. I am glad to see that everyone fell into the same trap I did. The intention of Amendment 128, whether or not it would be the effect, is for there to be consultation on the regulations, not each time an organisation is designated. It could be that it is a mistake in the drafting—I can say that because I did not draft them.

The organisations listed in Amendment 129 are suggestions as to who authorised persons should be under the Act, not who the designated bodies should be. The authorised persons are those who can make representations to the Secretary of State to have a particular body designated or removed from the list of designated bodies. That is what I believe I explained when I introduced the amendment. The list that includes the Law Society and so forth is not a list of bodies that we think should be designated, but a list of people who should be authorised persons who can then ask the Secretary of State to add or remove people from the list of designated bodies.

I will read again the view of the Delegated Powers Committee so far as Amendment 130 is concerned, but at this stage I beg leave to withdraw Amendment 128.

--- Later in debate ---

[Lord Kennedy of Southwark]

My Lords, this section of the Bill deals with whistleblowing and investigations by the IPCC. It provides a new power for the IPCC to investigate matters raised by a police whistleblower without the matter having to be raised with the police force concerned, and provides further powers to protect the identity of the individual or individuals concerned. All the amendments in this group are in the names of the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee, with the exception of Amendments 133 and 134 in the name of my noble friend Lord Rosser.

Amendment 132 seeks to provide as much clarity as possible and allows for the eventuality that the person making a complaint could still be under the direction and control of a chief officer of police. This amendment raises an interesting point, which was highlighted by the noble Lord, Lord Paddick, when he presented his scenario to the House a few moments ago. I hope that when the Government respond they will be as clear possible in their reasoning if they do not think the amendment is necessary.

The amendments in the name of my noble friend seek to add clarity to this section of the Bill by making clear that these provisions cannot be used if the matter is subject to an ongoing investigation. Amendment 134 would allow for whistleblowing protections to be applied to police witnesses. These are good amendments that would strengthen what is proposed by the Government.

When reading and thinking about Amendment 135, I was not completely convinced that it was either necessary or should in fact be there. Having said that, I listened to the points made by the noble Lord, Lord Paddick, and I think that he persuaded me on those.

I am not sure what Amendment 136 adds to the Bill as it would not put in the Bill an exclusive or exhaustive list. Amendment 137 is completely correct: organisations representing police officers and staff must be consulted before regulations are made concerning this section of the Bill. It is not good enough to rely on the subsection that talks about other organisations that are deemed appropriate. Those organisations deserve to be in the Bill when it leaves this House.

[Baroness Chisholm of Owlpen]

I am grateful to the noble Lords, Lord Paddick and Lord Kennedy, for the opportunity to debate the provisions in the Bill that will strengthen protections for police whistleblowers. The Government are committed to ensuring that those working for the police have the confidence to come forward to report concerns of malpractice and misconduct within the service.

Forces should, and do, provide channels for staff to raise such issues in confidence. However, Her Majesty’s Inspectorate of Constabulary has found that the quality of reporting arrangements and support offered to whistleblowers varied considerably by force, and a key concern was a lack of trust in confidential reporting. That is why, through Clause 27 and Schedule 6, we are creating a specific power for the Independent Police Complaints Commission to investigate whistleblowing allegations. If the IPCC decides to investigate, it does not have to refer the matter to the force unless the concern is about a conduct-related matter for the purposes of Part 2 of the Police Reform Act 2002. Even if it decides not to investigate, it will have to take all reasonable steps to ensure that the whistleblower’s identity is protected. These changes will give officers and staff much greater assurance that their concerns will be considered objectively and discreetly.

I have listened with interest to the points raised by the noble Lords, Lord Paddick and Lord Kennedy, and on two points I have some sympathy—I see that I have surprised the noble Lord, Lord Kennedy. The first is dealt with in Amendment 132, which seeks to modify the definition of a whistleblower to include those raising a concern about matters that occurred within a police force prior to them joining the police. The legislation as currently drafted allows for existing and former members of a police force to raise concerns about matters that occurred while they were serving. It is evident that some cases of police misconduct and malpractice can go unreported for some time, and it may be appropriate that there be some scope for this to be brought to light, as prescribed under new Part 2B, by a whistleblower who had joined the force at a later stage.

Amendment 133, tabled by the noble Lord, Lord Rosser, and spoken to by the noble Lord, Lord Kennedy, addresses the concern that there is a risk under the new provisions that a police officer or staff member interviewed as a witness in connection with a Part 2 investigation by the commission could be deemed a whistleblower, and that this could lead to confusion and complexity. Amendment 133 would prevent the IPCC having to start a new investigation where one is already under way in relation to the concern that has been raised. I am sympathetic to that point.

However, it is not the intention of the legislation to capture those providing factual information in an existing investigation. Rather, the aim of the legislation is to encourage whistleblowers to come forward and capture those concerns that are not being investigated but, in the public interest, should be considered independently by the IPCC and subject to its recommendations.

For this reason, I have less sympathy with Amendment 134, which would allow the IPCC discretion to confer whistleblowing status on any individuals providing evidence in existing investigations. We do not wish to create an expectation among police witnesses that the IPCC could offer them protections in return for giving their evidence. I understand that the IPCC has concerns about the protections available for those who provide it with evidence, but this is a much broader issue which needs be considered in the longer term, beyond the narrow confines of the whistleblowing provisions and in consultation with all relevant policing stakeholders.

Amendment 135 would impose an express duty on the IPCC to inform a whistleblower that his or her identity may be disclosed in the course of any criminal proceedings and to give the whistleblower an opportunity to withdraw the concern. The legislation is quite clear on the protection of anonymity and the circumstances in which a whistleblower’s anonymity might cease to be protected. As well as criminal proceedings, such circumstances could, for example, include the interests of national security and allegations of misconduct against the whistleblower him or herself. It is not practicable for the primary legislation to include every possible prescription. We would expect the IPCC to do its best to ensure that police officers were aware of the limitations of anonymity before they raise their concern, as I do not believe that it would be practical or desirable to provide for a concern to be withdrawn or unsaid by a whistleblower.

Guidance will support the new provisions, including an update of the College of Policing’s Reporting Concerns guidance, to promote awareness and understanding of these important reforms for whistleblowers. The protections offered by the new process that the Government are providing for whistleblowers can only go so far, and certainly not at the expense of allowing criminals to escape justice.

Amendment 136 would restrict the power of the Secretary of State to stipulate the matters on which the IPCC can make recommendations to a police force in cases where it has decided not to investigate a whistleblower’s concerns. I reassure the noble Lord, Lord Paddick, that the intention is not to provide the Secretary of State with the power to prescribe an exclusive list but merely to describe the kinds of recommendations that the IPCC may make. The purpose of the provision is to assist the IPCC in those cases where it decides, with the whistleblower’s consent, to refer the matter to the appropriate authority.

Finally, in response to Amendment 137, the Bill already requires the Secretary of State to consult on the whistleblowing regulations with police staff associations as members of the Police Advisory Board for England and Wales. This matter was discussed in the House of Commons and subsection (5) of new Section 29M to the Police Reform Act 2002 was inserted on Report there to provide for this requirement.

On the understanding that I will consider further, in advance of Report, Amendments 132 and 133, I ask the noble Lord, Lord Paddick, to withdraw his amendment.

[Lord Kennedy of Southwark]

I was pleased that the Minister was sympathetic to the point I made on Amendment 133; that is certainly progress. My noble friend raised an important point. We do not want it not to be addressed in legislation on the suggestion that it will come back as guidance, and then we have as an unintended consequence when the guidance is not strong enough that someone makes a complaint and what we thought could not happen does. We need to reflect on that, and perhaps the Government could come back on Report, because I think my noble friend has identified an important issue: we would not want a conflict there to cause problems in future.

[Baroness Chisholm of Owlpen]

We will reflect.

--- Later in debate ---

[Baroness Hamwee (LD)]

We also have Amendment 148 in this group and the Government have Amendment 147. These are not such big issues but are the sort of thing that we try to cover in Committee. Clause 29 addresses the police barred list and the police advisory list. Clause 29(6) states:

“The Secretary of State may by regulations … make provision that … corresponds or is similar to that made by Part 4A of the Police Act 1996”.

We are not at this point querying the Police Act or Part 4A of it, but rather the words “similar to”. I understand the need to make regulations which will correspond with something. That seems to follow naturally, although sometimes the Delegated Powers and Regulatory Reform Committee may comment on that. However, the power to make similar regulations seems potentially a wide provision and I am not sure what it means. I hope that the Minister will explain that in responding to Amendment 146, which is a probing amendment.

Government Amendment 147 seems one of the least contentious bits of today’s business. As regards Amendment 148, Schedule 8 contains a provision about the effect of including someone in the police barred list. Certain people are required to check the barred status of potential employees or appointees. The persons are listed as being,

“a chief officer of police; a local policing body; the chief inspector of constabulary; the Independent Police Complaints Commission”,

but also,

“a person specified in regulations”.

Again, there is rather wide scope in that latter provision which could have wide implications. Our Amendment 148 would provide for an affirmative resolution to be passed before the regulations were introduced. One is so pleased by little victories. I am delighted that the Minister has added her name to Amendment 148, which we will be very happy to move in due course. I beg to move Amendment 146.

[Baroness Chisholm of Owlpen]

My Lords, as the noble Baroness, Lady Hamwee, explained, this group of amendments responds to two issues raised by the Delegated Powers and Regulatory Reform Committee in its report on the Bill in respect of provisions in Clause 29 and Schedule 8, which provide for the creation of a new police barred list and a police advisory list to be held by the College of Policing.

The first issue raised by the Delegated Powers Committee related to the regulation-making power in Clause 29(6), which enables provision to be made which corresponds or is similar to that made by new Part 4A of the Police Act 1996 and which relates to a person who is or has been employed or appointed by a quasi-policing body. As the committee pointed out, certain aspects of the operation of the police barred and advisory lists will be determined by regulations made under new Part 4A of the 1996 Act and it will most likely be necessary, when exercising the power in Clause 29(6), also to make provision corresponding or similar to that contained in such regulations.

I am grateful to the Delegated Powers Committee for highlighting this gap in the regulation-making power in Clause 29(6), which Amendment 147 will address. The amendment will enable regulations made under Clause 29(6) to make provision that corresponds or is similar to that made by or under new Part 4A of the 1996 Act.

--- Later in debate ---

[Lord Paddick]

My Lords, in moving Amendment 147A, which is also in the name of my noble friend Lady Hamwee, I will speak to our other amendments in this group, Amendments 147B, 150A and 151A.

Schedule 8, which is to be inserted as part of Part 4A of the Police Act 1996, outlines the procedures with regard to the police barred list and a duty to report dismissals to the College of Policing, which is responsible for maintaining the list. Amendment 147A removes the requirement to report cases where a civilian police employee has been dismissed for reasons of efficiency or effectiveness. The amendment probes whether the barred list should be confined to wrongdoing such as dishonesty or the inappropriate use of violence rather than a person being deemed to be inefficient or ineffective.

Amendment 147B has a similar effect on the provisions in new Section 88A(6), which defines “dismissed”. As the noble Baroness, Lady Chisholm of Owlpen, just said, someone’s employment prospects could be fundamentally affected by being placed on the police barred list. Does she not think it slightly disproportionate to include people who are considered to be inefficient or ineffective on the barred list and thereby affect their employment prospects so fundamentally?

Amendment 150A has a similar effect on the requirement to report resignations and retirements in the face of an allegation of inefficiency or ineffectiveness. Amendment 151A allows someone reported as having resigned or retired in the face of an allegation to be able to appeal against the decision to report his resignation or retirement. I beg to move.

[Baroness Chisholm of Owlpen]

My Lords, I have listened carefully to the case put forward by the noble Lord, Lord Paddick, for these amendments. The Government are clear that the provisions on the police barred and advisory lists should apply to police officers and civilian staff equally where individuals have been dismissed or face allegations that could lead to their dismissal for reasons of serious misconduct, incompetence or unsatisfactory performance.

The provisions for civilian staff use the language of “conduct, efficiency or effectiveness” to mirror the language in Sections 50 and 51 of the Police Act 1996, under which regulations concerning discipline for police officers are made. This is a catch-all term to encompass all circumstances that could lead to a dismissal, through the processes related to performance and conduct. The barred list provisions are designed to protect against those who have been dismissed from policing being recruited to another force or policing body having been found to have fallen so far below the standards expected of those working in policing that they have been dismissed.

Amendments 147A and 150A would remove grounds of effectiveness from the relevant categories of dismissal that could lead to a civilian member of staff being added to the barred list. It is my view that “efficiency and effectiveness” are inextricably linked; therefore, to remove one of these factors would seriously undermine the ability of these mechanisms to capture individuals who have been dismissed or who are under ongoing investigation for matters of competence or performance.

Dismissal in these cases would arise only following a prescribed and lengthy process to establish that the individual’s performance or competency has fallen well below the standards expected on a consistent basis or relate to a matter so severe that dismissal is justified. For example, the Police (Performance) Regulations 2012 define gross incompetence for officers as,

“a serious inability or serious failure”,

to perform the duties to a satisfactory standard or level.

As drafted, these amendments would create a disparity in the way that civilian staff are treated compared to their counterparts holding the office of constable with regard to what would be captured by, and the effect of, these provisions. In the Government’s view it would not be desirable to make such a distinction and create such a different approach to the information and individuals that would be captured by the barred and advisory lists for civilian staff versus police officers.

Amendments 147B and 151A seek to create a new right of appeal, specifically with regard to inclusion on either the police advisory or barred list. This is neither necessary nor desirable. Our approach is clear: if an individual has been dismissed from policing, they should be added to the barred list to prevent them rejoining another force or policing body at a later stage. It is important to note that new Sections 88F and 88L of the Police Act 1996, as inserted by Schedule 8, already provide for removal from the barred list and the advisory list. There is an existing route for appeal against dismissal via the Police Appeal Tribunal or employment tribunal. As a result, in the circumstances that a decision to dismiss an individual is overturned, this will result in the individual being removed from the barred list. This is explicitly provided for by Schedule 8.

As we see greater flexibility in roles, functions and powers exercised by civilian staff, as designated under the powers set out in Clause 37, it is important that the police barred list provisions adequately capture individuals who have been dismissed from the police service. This flexibility and application of policing powers must, in the view of the Government, be accompanied by appropriate safeguards, protections and accountability.

The police advisory list provisions are in place to ensure that adequate information is captured where an individual leaves a force while investigatory or disciplinary proceedings are ongoing. This list does not represent a statutory bar but creates a framework for capturing this information for future policing employers to take into account as part of the vetting process. To add an appeal route to this process would therefore undermine the ability of police forces and policing organisations to adequately subject incoming candidates to vetting procedures and take account of the fact that a candidate may be subject to an ongoing investigation or disciplinary process.

As with the barred list, the advisory list provisions contain safeguards so that an individual will remain on this list only while proceedings are ongoing. Where it is determined that no disciplinary proceedings will be brought or are withdrawn, or where disciplinary proceedings conclude without there being a finding that the individual would have been dismissed, the individual’s name and details must be removed from the advisory list.

Ultimately, the right of appeal against inclusion on the advisory list exists within a misconduct hearing, where it will be determined whether the individual should be dismissed and so be added to the barred list. Where dismissal is not the outcome, they will be removed when the process concludes.

Given that explanation, I ask the noble Lord to withdraw his amendment.

--- Later in debate ---

Moved by

[Baroness Chisholm of Owlpen]

153A: Clause 30, leave out Clause 30 and insert the following new Clause—
“Appeals to Police Appeals Tribunals
(1) Schedule 6 to the Police Act 1996 (appeals to Police Appeals Tribunals) is amended as follows.(2) In paragraph 1 (appeal by a senior officer), in sub-paragraph (1), in the words before paragraph (a), for “Secretary of State” substitute “relevant person”.(3) In paragraph 2 (appeal by a member of a police force other than a senior officer or by a special constable), in sub-paragraph (1)—(a) in the words before paragraph (a), for “relevant local policing body” substitute “relevant person”;(b) omit paragraph (d);(c) at the end insert—“(e) one shall be a lay person.”(4) After paragraph 2 insert—“2A(1) For the purposes of paragraphs 1 and 2, “the relevant person” means the person determined in accordance with rules made by the Secretary of State._(2) Rules under sub-paragraph (1) may make—(a) different provision for different cases and circumstances;(b) provision for the relevant person to be able to delegate the power to appoint the members of a tribunal._(3) A statutory instrument containing rules under sub-paragraph (1) is subject to annulment in pursuance of a resolution of either House of Parliament.”(5) In paragraph 10 (interpretation)—(a) after paragraph (a) insert—“(aa) “lay person” means a person who is not, and has never been—(i) a member of a police force or a special constable,(ii) a member of the civilian staff of a police force, including the metropolitan police force, within the meaning of Part 1 of the Police Reform and Social Responsibility Act 2011 (see section 102(4) and (6) of that Act),(iii) a person employed by the Common Council of the City of London in its capacity as police authority who is under the direction and control of the Commissioner of Police for the City of London,(iv) a police and crime commissioner,(v) a member of staff of a police and crime commissioner, or of the Mayor’s Office for Policing and Crime, within the meaning of Part 1 of the Police Reform and Social Responsibility Act 2011 (see section 102(3) and (5) of that Act),(vi) a constable within the meaning of Part 1 of the Police and Fire Reform (Scotland) Act 2012 (2012 asp 8) (see section 99 of that Act),(vii) a member of the Police Service of Northern Ireland or the Police Service of Northern Ireland Reserve,(viii) a member of the British Transport Police Force or a special constable appointed under section 25 of the Railways and Transport Safety Act 2003,(ix) an employee of the British Transport Police Authority appointed under section 27 of the Railways and Transport Safety Act 2003,(x) a member of the Ministry of Defence Police,(xi) a person (other than a member of the Ministry of Defence Police) who is under the direction and control of the chief constable for the Ministry of Defence Police,(xii) a member of the Civil Nuclear Constabulary, or (xiii) an employee of the Civil Nuclear Police Authority appointed under paragraph 6 of Schedule 10 to the Energy Act 2004,”;(b) omit sub-paragraph (c).(6) In consequence of the other provision made by this section—(a) in the Criminal Justice and Immigration Act 2008, in Part 1 of Schedule 22, omit paragraph 11(6)(b);(b) in the Police Reform and Social Responsibility Act 2011, in Part 1 of Schedule 16, omit paragraph 47(2)(b).”

[Baroness Chisholm of Owlpen]

My Lords, Clause 30 is designed to implement two of the recommendations made by Major-General Chip Chapman in his review of the police disciplinary system. Major-General Chapman recommended that the system of police appeals tribunals should be made more transparent and independent by introducing a lay member to the panel. He also identified that enabling greater collaboration between forces would improve consistency of outcomes.

Clause 30, as currently drafted, provides flexibility for the Secretary of State to establish who can be selected to serve on police appeals tribunals and for setting out the administrative arrangements for these tribunals in rules. In its report on the Bill, the Delegated Powers and Regulatory Reform Committee argued that it was inappropriate to leave to secondary legislation the details of who would be eligible to serve on the tribunals.

The Government have accepted the Delegated Powers Committee’s recommendation on this point, and the government amendments in this group ensure that the individuals who may serve as panel members of a police appeals tribunal will, as now, be set out in primary legislation. However, it remains our intention to further strengthen the independence of police appeals tribunals by replacing the current retired police officer panel member—for panels hearing appeals by non-senior officers—with a lay person member, and the replacement Clause 30 amends Schedule 6 to the Police Act 1996 to this end.

The replacement clause, together with Amendment 172, defines a lay person for these purposes. In broad terms, it means any person who has not previously worked in policing, including as a police officer, as a member of the civilian staff of a police force or as a police volunteer. Amendment 232 makes a consequential change to the extent clause. Importantly, the introduction of lay members will bring a greater degree of independence to police appeal proceedings.

--- Later in debate ---

Moved by

[Baroness Chisholm of Owlpen]

159: Schedule 9, page 292, line 3, leave out from “follows” to end of line 5 and insert “(but an amendment made by sub-paragraph (2), (3), (4) or (5) applies only if this Schedule comes into force before the coming into force of paragraph 21, 23, 24 or 26 (as the case may be) of Schedule 5 to this Act).”

[Baroness Chisholm of Owlpen]

My Lords, Amendments 159, 163 and 233 in this group are technical and consequential amendments arising from the changes to the IPCC’s governance arrangements that we have already debated. I can provide noble Lords with further details if required, but for now I beg to move.

Amendment 159 agreed.

Moved by

[Baroness Chisholm of Owlpen]

160: Schedule 9, page 294, line 3, leave out “subsection (1B)(a)” and insert “subsections (1B)(a), (1BD) and (1BE)”

--- Later in debate ---

[Lord Rosser]

I will just add briefly to the comment made by the noble Lord, Lord Paddick, at the end of his speech. If the Government do not feel inclined to accept the amendment, there is a need—I am sure it will happen when the Government respond—to hear precisely what their reasons are for not going down that road. It has been said that no comparable body to the IPCC exists to deal with complaints about service police forces. A significant number of forces and agencies do fall within the jurisdiction of the IPCC, including, I understand, the Ministry of Defence Police. If the Government do not accept the amendment, like the noble Lord, Lord Paddick, I wait to listen with interest to their reasons why not.

[Baroness Chisholm of Owlpen]

As the noble Baroness, Lady Jolly, has explained, this amendment seeks to put the service police within the remit and jurisdiction of the Independent Police Complaints Commission.

We do, of course, support the need for independent oversight and scrutiny of the Royal Navy Police, the Royal Military Police, and the Royal Air Force Police, including the key objective of having an independent mechanism to investigate complaints against them. I am also aware that Her Majesty’s Inspectorate of Constabulary has recommended that the Government should consider further whether the IPCC could be the appropriate mechanism.

The Government have given early consideration to this, including discussions with the IPCC. To bring the service police under the remit of the IPCC is potentially a major change. Although only a small number of cases may be involved, it could mark a significant shift for the IPCC far beyond its current operations in England and Wales. As the chair of the IPCC has said,

“There are inherent and significant differences between the remit and jurisdiction of the service police and those of the Home Office Police forces”.

In addition, the IPCC is currently part way through a major programme of expansion to build its capacity and capability to investigate all serious and sensitive allegations against civilian police forces. This Bill will further strengthen the IPCC’s remit and powers and, in light of its expanded role, the Bill also provides for the reform of the organisation’s corporate structure and governance to deliver a more capable and resilient organisation.

At this stage, the IPCC’s capacity for further change to its role is constrained. That is why the Government, led by the Ministry of Defence, are seeking alternative options. Recent work with the Ministry of Defence has been focused on the development of a common complaints procedure across the three service police forces. This procedure covers complaints made by serving and non-serving military personnel against a member of the service police carrying out a policing function, irrespective of location. There is now also a protocol between the service police forces to ensure that, where there may be a conflict of interest around the investigation of a complaint, one service police force may investigate another. The next phase of the Ministry of Defence’s work is to consider how best to introduce a mechanism that will provide for the independent oversight of these complaints, wherever in the world they are made.

I hope that the noble Baroness will understand that, in the light of the work being taken forward by the Ministry of Defence, and the risks that could arise if we sought to impose new responsibilities on the IPCC at a time when it is already going through a substantial reform programme, I cannot commend this amendment to the Committee. I accept, however, that the noble Baroness wants to see more progress towards finding a long-term solution to this issue. I can certainly undertake to write to the Armed Forces Minister to draw his attention to this debate, but for now I ask the noble Baroness to withdraw her amendment. Of course, I am more than happy to meet the noble Baroness.

[Baroness Jolly]

I thank the Minister for her comments and my noble friend Lord Paddick, and the noble Lord, Lord Rosser, for their support. I understand that it would be a large change for the IPCC to undertake this extra work. I imagine that a certain amount of the capacity would go from one organisation to the other. One of the things I would like to understand is the timescale of all this, so perhaps when the Minister and I meet, this is the sort of area we could discuss.

Policing and Crime Bill

Baroness Chisholm of Owlpen Excerpts

Committee: 2nd sitting (Hansard - part two): House of Lords
Wednesday 26th October 2016 Lords Chamber

Moved by

[Baroness Chisholm of Owlpen]

168: Schedule 10, page 297, line 25, leave out from “under” to end of line 27 and insert “section 20 or 22 of the Investigatory Powers Act 2016 (applications for warrants under Chapter 1 of Part 2 of that Act).”

--- Later in debate ---

[Baroness Chisholm of Owlpen (Con)]

My Lords, Amendments 168, 171 and 173 are minor and technical amendments to update and clarify the arrangements for designated staff and volunteers to use their powers. I do not wish to detain your Lordships unnecessarily, but, if required, I can talk further about each amendment. For now, I beg to move Amendment 168.

Amendment 168 agreed.

Policing and Crime Bill

Baroness Chisholm of Owlpen Excerpts

Committee: 3rd sitting (Hansard - part one): House of Lords
Wednesday 2nd November 2016 Lords Chamber

Moved by

[Baroness Chisholm of Owlpen]

187A: Clause 67, page 88, line 45, at end insert—
“( ) Where an offence under this section is committed by a person released without charge and on bail under Part 4 of the Police and Criminal Evidence Act 1984, the offence is to be treated as having been committed in England and Wales (whether or not the conduct constituting the offence took place there).( ) Where an offence under this section is committed by a person released without charge and on bail under Part 5 of the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I. 1989/1341 (N.I.12)), the offence is to be treated as having been committed in Northern Ireland (whether or not the conduct constituting the offence took place there).”

[Baroness Chisholm of Owlpen (Con)]

My Lords, these amendments principally relate to the cross-border enforcement provisions in Chapter 7 of Part 4. Those provisions strengthen the existing cross-border powers of arrest contained in Part 10 of the Criminal Justice and Public Order Act 1994. In particular, these provisions close a gap in the cross-border arrest powers to ensure that a person who commits an offence in one UK jurisdiction can be arrested without a warrant by an officer from the jurisdiction in which the person is found. The provisions in new Section 137A of the 1994 Act include a number of safeguards, one of which is that the arresting officer has reasonable grounds for suspecting that the suspect has committed a specified offence in another jurisdiction—that is, an offence specified in regulations.

In the interests of greater clarity and to ensure that the police are able to exercise these powers as soon as possible after Royal Assent, Amendments 201B, 201C, 201G and 201T insert a list of “specified offences” in the 1994 Act, instead of setting out the offences in regulations. As a consequence of this new approach, Amendments 201D to 201F modify the regulation-making power in new Section 137B of the 1994 Act so that it becomes a power to add an offence to or remove an offence from the list of offences for the time being specified in new Schedule 7A to the 1994 Act. This revised power is necessary to ensure that the list of relevant offences can be kept up to date; for example, to take account of new offences being created or reductions in the maximum penalty for a specified offence such that it is no longer in the interests of justice for it to remain on the list. As befitting a Henry VIII power, the regulations continue to be subject to the affirmative procedure.

The list of relevant offences specified in new Schedule 7A to the 1994 Act includes that in Clause 67: namely, the offence of breach of pre-charge bail conditions relating to travel. The related Amendment 187A to that clause clarifies that if a travel-related breach of pre-charge bail conditions is committed anywhere in the United Kingdom, it will be regarded as having been committed in either England and Wales or Northern Ireland, depending on where the bail was granted. This will ensure that the breach can be prosecuted in the relevant UK courts and will also make sure that the cross-border powers set out in Clauses 105 to 107 are available to enforce the offence.

Amendments 201H to 201S relate to the rights of persons arrested under new Section 137A of the 1994 Act. New Section 137D of the 1994 Act applies certain existing statutory rights to persons arrested under the new power of arrest—for example, in respect of the information to be given to the arrestee—but includes a power to disapply or modify the specified enactments. Again, in the interests of greater clarity, new Schedule 7B to the 1994 Act, which is inserted by Amendment 201U, sets out the necessary modifications in the 1994 Act. As a consequence of this change of approach, the regulation-making power is retained but modified so that it becomes a power to add, remove, alter and disapply statutory rights. Amendment 233A makes a consequential change to the extent clause.

I trust noble Lords will agree that this revised approach will provide greater clarity as to how the new cross-border arrest powers will operate. I beg to move.

Amendment 187A agreed.

--- Later in debate ---

[Lord Thurlow (CB)]

My Lords, I rise to support the amendments tabled in the names of the noble Baronesses, Lady Walmsley and Lady Hamwee, and my noble friend Lady Howe. They mark important steps across the board to bring the treatment of mental ill-health in line with our 21st-century understanding of that arena. I have, perhaps regrettably, close personal experience of dealing with and attempting to cope with people suffering a mental health crisis. I bring to bear that experience as well as the advice offered by the Mental Health Alliance and specifically the charity Mind, both of which have been referred to, in my endorsement of these amendments.

The amendments regarding the use of police cells and homes as supposed places of safety—neither are appropriate, I agree—and concerning the period of detention in those places awaiting a mental health assessment are most important. I acknowledge the positive steps that this Bill in its original form recommended in both of these areas, but they do not go far enough. Perhaps I may reflect for a moment on who it is that these clauses are designed to protect. It is the vulnerable, the needy and those less able to help themselves. We have a special duty to those people in our society. These amendments are an important step of progress in improving their treatment at the hands of the police in times of crisis. That said, I am not criticising the police. I have seen at close quarters the awkward circumstances of the police having to enforce the rules. I admire the sensitivity and empathy I have seen displayed.

When a person is in a mental health crisis there is a very high risk of private anxiety, emotions of distress, confusion, aggression and perhaps threatening behaviour. What is required is probably support and compassion. Confinement in a cell is bound to add to this distress. Surroundings matter.

As we have heard, the Government have begun to dedicate funds to mental health services, improving the provision of suitable places of safety and achieving parity of esteem between mental and physical health. These are important steps and this work must continue. We must step up to this challenge on the behalf of those affected. This disadvantaged group, unlike most in our society, seldom makes its own case for better care. The reality is, of course, that they cannot—they are confused and they are not organised—but we can. They rely on us, and on the charities and other groups that work with them.

We must be sure to try our best to legislate so that the trend continues and relevant investment goes toward providing for those in need. The amendments tabled by the noble Baroness would do exactly that. This is legislation that will help bring the Mental Health Act 1983 into the 21st century. If we think for a minute, that Act was enacted more than 30 years ago. The quantum leaps of progress in medical understanding of mental health issues have been huge. Yet, the Act on the statute book is more than 30 years old. We must take every opportunity we can to improve the terms of the Act wherever we can.

I thank the noble Baronesses for their work in tabling the amendments and request that the Minister accepts them.

[Baroness Chisholm of Owlpen]

I thank noble Lords for this important debate. As the noble Baroness, Lady Walmsley, explained, these amendments seek to restrict, in different ways, the premises that can be used as a place of safety for persons detained under Sections 135 or 136 of the Mental Health Act 1983.

Of course it is important that people detained at a time of crisis be taken to the most appropriate place of safety for their medical needs. That principle is behind these amendments and also represents the Government’s position. Where we differ is on how this should be achieved in terms of the full range of options that should be available to professionals. Amendments 189 and 190 to Clause 79 would completely prohibit the use of police stations as places of safety. The Bill provides that police stations cannot be used as places of safety in the case of children or young people aged under 18. The issue for the Committee is whether this prohibition would also apply to adults.

The noble Baroness and other noble Lords who have spoken are concerned that a police station should never be an appropriate place for a person of any age to be taken at a time of such distress. The Government accept that police stations have been used to detain people under Section 136 far too often. Although much progress has certainly been made to address this, including a 54% reduction between 2014-15 and 2015-16, there is no doubt that police cells are still used inappropriately in some areas.

This will be addressed through regulations governing the circumstances in which a police station can be used for an adult. We have heard from experts that there are occasions when the behaviour of adult detainees can be too violent to be safely managed in a health setting. I expect the regulations to also set out the expected standards of care to be provided to any adult taken to a police station. These decisions will be determined on a case-by-case basis, but I stress that the emphasis is on the exceptional nature of such situations, with health-based places of safety used for the vast majority of cases. The Government have engaged experts and other interested parties in the development of those regulations. I expect to be in a position to say more about our approach ahead of Report.

--- Later in debate ---

[Baroness Walmsley]

My Lords, I thank the Minister for her reply. I have a few points to make in response but want first to apologise to the noble Lord, Lord Bradley, for not mentioning his excellent report. I congratulate him and the Government on the recommendations in the report that have been achieved on the ground. The street diversion teams are particularly good and would certainly come into play were a person found to be violent and in danger of hurting themselves or somebody else. The teams have had a fantastic effect and I look forward to their being rolled out universally.

It has been suggested that the amendment is a little premature and that we do not yet have the infrastructure in place to enable us to have a complete ban on the use of police cells. As with every other Bill, it would be perfectly possible for the Government to accept such a measure and then delay its implementation until such time as the review suggested by the noble Lord, Lord Bradley, had taken place and the extra beds had been put in place. That would not be an impediment to the Government accepting my amendment.

The noble Lord, Lord Rosser, asked what would happen if no health-based place of safety was available, the implication being that only use of a police cell was possible. Every local authority has hundreds of care homes and the lucky ones have nursing homes, too. Not all beds are occupied all the time; indeed, a recent report in the media cited instances where the contract with the family concerned stated that after the person in question had died, the family would have to carry on paying for two, three or four weeks while the home found another occupant for that room. That means that vacant rooms will be available. Some of them would be perfectly suitable for some patients, because they are acceptable and legal places of safety. If Hertfordshire and Merseyside can do it in those circumstances, then why not everywhere else?

[Baroness Chisholm of Owlpen]

Is the noble Baroness suggesting that mental health patients are able to go to care homes as places of safety?

[Baroness Walmsley]

I beg the Minister’s pardon. I should have said that there are care homes in every local authority where staff are specially trained to deal with people with mental health problems.

If Merseyside and Hertfordshire can do it, why not everywhere? Do they not have any patients who are in exceptional circumstances? I am sure they do.

On funding, the Minister suggested that the LGA was incorrect in briefing us that none of the money was going to local authorities. That is where my statement came from, and it should know.

On Amendment 191, about use of the home, it is important that somebody in a mental health crisis be able to see someone who is trained to assess and treat them as soon as possible, and as soon as would happen if they had a physical problem. They will not get that in their home. I do not believe that those choosing to take them home would be in a position to assess whether that home was really safe. Even members of the family would not know whether the home was safe, so getting their agreement is no guarantee that the home is a real place of safety. Many mental health patients have said that they would find it a serious intrusion on their privacy if the police brought them home and stood guard over them while they were there. I accept that it would be for only a short period, but to have a policeman outside the door would have a great effect on how they felt they were seen. As the noble Lord, Lord Thurlow, said, they already feel stigmatised by a link being made between mental health and criminality, which there really is not. We should therefore pursue these issues on Report. Of course, this is Committee stage, so for the moment I beg leave to withdraw the amendment.

--- Later in debate ---

[Viscount Hailsham]

My Lords, I have great sympathy with the points just made. The clock should start ticking when a person is taken into custody and not when he or she arrives at the place of safety.

[Baroness Chisholm of Owlpen]

My Lords, the amendment would provide for the permitted period of detention of a person detained under Section 135 of the Mental Health Act 1983 to commence at the point at which they were removed to, rather than the point at which they arrived at, a place of safety.

The Government wholeheartedly support the aim of minimising the period during which a person is detained under either Section 135 or Section 136 of the 1983 Act. That is why Clause 80 reduces the maximum detention period from 72 hours to 24 hours.

I also agree that every effort should be made to minimise the time taken to remove and transport a detained person to a place of safety. However, I put it to the noble Baroness that securing that outcome cannot best be achieved through legislation. Indeed, the amendment could well have unintended consequences which were detrimental to the best interest of detained persons.

I fear that the practical effect of the amendment would be to penalise those in need of care and the professionals assessing them in circumstances where the detained person needed to be removed from an isolated location, or if it was difficult to remove that person. For example, if someone needs to be removed from a place that is isolated or difficult to access, it may take some time for professionals to be able to get that person to a place of safety. We do not want the police or mental health practitioners to have one eye on the clock in such circumstances.

There is a balance to be struck between taking positive action to keep periods of detention as short as is reasonably possible and giving mental health professionals sufficient time for the necessary arrangements to be made for mental health assessments to be conducted during the 24-hour window provided for in the Bill. We believe that the combination of reducing, by two-thirds, the period of detention and starting the detention clock only when the detained person arrives at the place of safety—which is, incidentally, how the time limits work now—achieves that balance.

In practice, the vast majority of detained persons will be assessed well within 24 hours of their removal, but the legislation needs to allow not just for the generality of cases, where a person can be taken quickly to a place of safety, but also for that small minority of exceptional cases where this may not be possible. I hope that, on reflection, the noble Baroness is persuaded that the approach taken in the Bill is in the best interests of those suffering a mental health crisis and in need of immediate care. I accordingly invite her to withdraw her amendment.

--- Later in debate ---

[Baroness Walmsley]

Amendment 193 would ensure that people detained under Section 135 or Section 136 of the Mental Health Act 1983 have access to an appropriate adult. Such access is key to providing people in crisis access to advice while under emergency detention. It is a uniquely distressing and confusing time, as we have heard, and one where independent advice from someone with knowledge and skill who can handle the situation calmly is crucial.

At the moment detained people only have the police, who were involved in detaining them, and the person doing their mental health assessment as their key contacts. Clearly, neither of these can be seen as impartial to their situation. The person doing their assessment, although qualified, is going to be deciding what happens to them next, and so cannot really be described as impartial. There is a huge gap here, since people under most other sections of the Mental Health Act have the right to access an independent mental health advocate. People who are under arrest also have the right to access an appropriate adult. The National Appropriate Adult Network says about people detained or questioned by police:

“While both children and mentally vulnerable adults are required to have an Appropriate Adult under the PACE Codes of Practice, there is only statutory provision for children. As a result many people aged over 17 who are mentally vulnerable do not get the support that they are entitled to. This includes people with mental ill health, learning disabilities and autistic spectrum disorders”.



I recognise the concern of local authorities that they are strapped for cash, but I feel that making this provision statutory will put pressure on the Government to provide the necessary resources. The JCHR shares my concerns about this gap, as we read in its third report of the 2016-17 Session. It wrote to Mike Penning MP, then Minister for Policing and Criminal Justice. He replied on 1 July 2016 to the effect that persons detained under Sections 135 and 136 were only there in order to allow for a mental health assessment and he was keen,

“that we do not inadvertently build unintended and unnecessary delay and bureaucracy into this process or as a consequence of having to await the arrival of a formal advocate or independent representative”.

He also pointed out that the person could request the presence of a legal adviser or a relative or friend. This did not satisfy the JCHR and it does not satisfy me.

The JCHR said:

“We believe that additional safeguards are required to ensure that a person detained in a place of safety under s 135 or 136 of the Mental Health Act 1983 should have access to an ‘appropriate adult’, particularly in circumstances where they are detained in their own home”.

It drafted an amendment very similar to my Amendment 193, which I think it proposes to bring forward on Report, unless the noble Baroness can satisfy us all this evening. Given the state a person is likely to be in when they are detained, I believe it would be a breach of their human rights not to allow them the right to access an appropriate adult. I beg to move.

[Baroness Chisholm of Owlpen]

My Lords, it is absolutely right that people detained under Sections 135 or 136 should have the help and support they need to understand what is happening to them, and the current arrangements already allow for that. Detention under Sections 135 and 136 is for a short period of time and for the specific purpose of assessing the need for care and treatment, and making the necessary arrangements for its provision.

This amendment calls for each person detained to have access to an appropriate adult; an issue which was also raised by the Joint Committee on Human Rights in its report on the Bill. It is true that appropriate adults provide an incredibly valuable service, providing support and advocacy for children and vulnerable adults detained in police stations, usually when they are under arrest in connection with a criminal offence. Appropriate adults are not currently required to be provided by the police to support people detained under the Mental Health Act, nor are they trained to meet their particular needs. We must be cautious of the potentially stigmatising effects of conflating the support services provided to people suspected of an offence with those needed by people detained in connection with their mental ill health.

In the majority of cases under Sections 135 or 136, the person will be taken to health-based places of safety, where appropriate adults do not operate, rather than to police stations. In 2015-16 police stations were used in only 7% of Section 136 cases in England and Wales. The provisions in the Bill mean that police stations will be used even less than they are now; in fact, quite rarely, I expect— we hope, not at all. These rare cases require particular attention and I expect that the regulations on the use of police stations as places of safety for adults will give very clear direction about the level of support that will need to be in place.

I recognise that this amendment is about all people who are detained under Sections 135 or 136, regardless of which place of safety they are taken to. It is about supporting them, informing them and speaking for them if necessary. The Government are clear that the mental health professionals involved in the detention and assessment process are best placed to do this. Also, mandating the attendance of an appropriate adult, or some other person with a similar role, could very easily cause avoidable delays in getting on with the mental health assessment that is the proper purpose of a detention under Sections 135 or 136. Given that the Bill reduces the maximum period of detention from 72 hours to 24, it seems unhelpful to then introduce additional requirements that would, in all likelihood, impinge on that reduced period of time.

Guidance is now being developed on the changes the Bill makes to the 1983 Act. It will make clear the expectations on healthcare staff—those whom people detained under Sections 135 and 136 will encounter—to ensure that detainees have the support and advice they need while awaiting and undergoing an assessment. The Government are engaging with a wide range of experts to draw up this guidance. Current practices and the needs of people experiencing a mental health crisis will be carefully considered.

I hope I have been able to persuade the noble Baroness that mandating access to an appropriate adult is inappropriate in the context of a short Section 135 or Section 136 detention, and that, having had this opportunity to debate the issue, she will be content to withdraw her amendment.

Policing and Crime Bill

Baroness Chisholm of Owlpen Excerpts

Committee: 3rd sitting (Hansard - part two): House of Lords
Wednesday 2nd November 2016 Lords Chamber

Moved by

[Baroness Chisholm of Owlpen]

196: Clause 82, page 106, line 4, leave out paragraph (f) and insert—
“( ) a designated NCA officer who is authorised by the Director General of the National Crime Agency (whether generally or specifically) to exercise the powers of a law enforcement officer under this Chapter, or”

--- Later in debate ---

[Baroness Chisholm of Owlpen (Con)]

My Lords, government Amendments 196, 199, 200 and 201 are essentially consequential on the provisions in Clause 138 which enable the director-general of the National Crime Agency to designate NCA officers with the powers of general customs officials. The amendments clarify that NCA officers so designated are able to exercise the new maritime enforcement powers in the same way as NCA officers designated with the powers of a constable. As a result, these important new powers will be available to NCA officers investigating customs matters such as the smuggling of drugs and firearms. I beg to move.

Amendment 196 agreed.

--- Later in debate ---

[Lord Harris of Haringey]

The noble Lord already has the answer apparently.

[Baroness Chisholm of Owlpen]

Can we have it?

[Lord Paddick]

Section 66 of the Metropolitan Police Act was repealed on the basis of the powers to stop and search under the Police and Criminal Evidence Act. The earlier powers were superseded, so it was decided that Section 66 was no longer necessary.

[Baroness Chisholm of Owlpen]

Well, my Lords, it just shows how marvellous this House is. We have experts who can always answer the questions for us, which is an enormous help.

As the noble Lord, Lord Rosser, explained, Amendments 196A and 200A relate to the power, by regulations, to add to the list of law enforcement officers who may exercise the new maritime enforcement powers in Chapters 5 and 6 of Part 4 of the Bill. Clause 82(3) defines “law enforcement officers” in England and Wales for the purpose of exercising the maritime powers. This includes provision for the Secretary of State to specify in regulations other categories of person who may be allowed to exercise these powers. Clause 94(3) makes equivalent provision for Scotland. The proposed amendments would require the Secretary of State to consult prior to making such regulations.

The noble Lord, Lord Rosser, mentioned foreign ports. Ports in foreign countries are included. Maritime powers can be exercised in international and foreign waters all over the globe. It is a practical and operational necessity that those exercising such powers should be able lawfully to divert a ship to a port and detain it there where the operation in question takes place hundreds or thousands of miles away from England and Wales. I can assure the noble Lord, Lord Rosser—

[Lord Rosser]

My concern was that “or elsewhere” might be used in cases involving foreign ships which are discovered within our territorial waters to contain, or are suspected to contain, refugees and others in need of international protection who might be in breach of immigration law but who nevertheless have certain rights which, on the face of it, could be overridden if there was a power to divert ships to a port elsewhere—indeed, anywhere in the world. It could mean them being sent back to a place where they would be in danger. It would also mean that they would not have had the right to have their claim for protection fairly determined before they could be returned. The question I was asking is, was my interpretation of the apparent power in the Bill for a law enforcement officer or the Secretary of State to be able to do that correct? If it was not correct—and I said I hoped it was not correct—will the Government explain to me why my analysis was not right?

[Baroness Chisholm of Owlpen]

My Lords, inspiration has appeared from over my left shoulder. The maritime provisions of the Bill are strictly intended to enable enforcement officers to prevent, detect, investigate and prosecute offences under the law of England and Wales. Any decision to divert a foreign ship that is not in UK territorial waters to a foreign port will require the authority of the Secretary of State. These powers are not intended to be used in a way which is contrary to the Human Rights Act, the 1951 refugee convention or the 1967 protocol.

I can assure the noble Lord, Lord Rosser, that the Home Secretary will consult appropriately before making any such regulations. Such consultation will certainly include any person or body to be specified in the regulations and, in relation to any regulations to be made under Clause 94, the Scottish Government. Indeed, there is an implied duty to consult the Scottish Government and more in Clause 94(6), which requires Scottish Ministers to consent to any regulations under Clause 94(3)(e), which makes devolved provision. Having stated our intention to consult on any such regulations, I hope the noble Lord will agree that it is not necessary to set this out in the Bill.

Amendments 196C, 196D, 197 and 198 relate to Clause 92, which imposes an obligation on the Secretary of State to provide a code of practice for law enforcement officers who use the power of arrest conferred by Clause 88. This code must provide guidance on the information—for example, procedural rights to be given to a person at the time of their arrest. Amendments 196C and 196D seek to amend Clause 92 to extend the scope of the code of practice so that it also addresses the matters which a law enforcement officer must have regard to when considering making an arrest under the maritime powers. We believe that the proper focus of the code is on the information that should be provided to a suspect at the point of arrest, including in relation to their procedural rights. Importantly, the provisions in the Bill in respect of the code of practice closely mirror those in the Modern Slavery Act 2015 and it would be confusing to law enforcement officers to adopt a different approach here.

The power of arrest, like other powers under the maritime provisions, is clearly set out in the Bill. For example, Clause 88 is clear that the power of arrest may be exercised where an enforcement officer has reasonable grounds to suspect that an offence under the law of England and Wales has been, or is being, committed. It will be down to the knowledge, experience and professionalism of the officers concerned as to whether the use of the power is both necessary and appropriate for the purpose of preventing, detecting, investigating and prosecuting offences. The priority for enforcement officers who have apprehended a person on a vessel at sea will be to bring them back to the UK, where they will be processed under PACE in the usual way.

Amendments 197 and 198 relate to the parliamentary procedure for bringing codes of practice into force. The Bill makes provision to bring a new code of practice into law through the affirmative procedure. However, Clause 92(9) provides a choice of procedure for any subsequent revisions to the code. This enables the right level of scrutiny to be provided, proportionate to the revisions being made to the code. For minor or consequential changes the affirmative procedure would, we believe, be disproportionate. Insisting on the affirmative procedure in all cases could cause unnecessary delays in revising the code, with the result that the code would remain out of date in operational terms for longer than necessary. Amendments 197 and 198 would remove this choice, requiring both the first draft of a new code of practice and any revisions to go through the affirmative procedure.

The Delegated Powers and Regulatory Reform Committee recommended in its report on the Bill of 13 July that when using Clause 92(9), the Minister should be,

“bound by the views of the House of Commons Home Affairs Select Committee”.

This is similar to the procedure used for revisions to codes of practice for the Police and Criminal Evidence Act 1984. My noble friend’s letter of 7 September to the noble Baroness, Lady Fookes, chair of the Delegated Powers Committee, accepted that recommendation, so the choice of procedure provided by Clause 92(9) will be exercised with reference to the views of the Home Affairs Select Committee. We believe that this will provide the best approach to ensuring that the appropriate level of scrutiny is provided for any changes to the code.

I hope I have been able to satisfy noble Lords that these amendments are not necessary and that accordingly the noble Lord, Lord Rosser, will be content to withdraw his amendment.

[Lord Rosser]

I certainly will withdraw the amendment. Unless I was not paying as much attention as I should have been—and I accept that that is a genuine possibility, and I mean that—I am not sure that I got an answer to the question: what kind of current unspecified category of persons do the Government believe may need to be designated as a law enforcement officer that cannot be so designated clearly and specifically now in the Bill? That related to both Clause 82(3)(g) and Clause 94(3)(e).

The only other point I would ask for clarification on, which comes back to the question I raised about how the powers could, on the face of it, be used to override the rights of those in need of international protection, is whether in giving the Government’s response the Minister said that it was not intended that the powers be used to override the rights of those in need of international protection, or that they would not be used in that way. The latter is rather firmer than a statement of intent.

[Baroness Chisholm of Owlpen]

On the noble Lord’s first point, these powers are necessary to enable the categories of law enforcement officer who may exercise these maritime enforcement powers to be extended in the light of changing operational requirements. For example, both the Criminal Justice (International Co-operation) Act 1990 and the Modern Slavery Act 2015 confer powers on Armed Forces personnel and there may be an operational case for extending the powers in this Bill to such personnel in future.

[Lord Rosser]

Is there any clarification—or perhaps the Minister could write to me subsequently—of what was said in relation to the apparent ability to override the rights of those in need of international protection through the facility to divert a ship to a port elsewhere, or indeed anywhere in the world? Was the response that it was not intended that that power should be used to override those rights, or was it a clear statement that it would not be used to override those rights?

--- Later in debate ---

[Baroness Chisholm of Owlpen]

I will write to the noble Lord.

[Lord Rosser]

I thank the Minister very much indeed. I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Paddick]

My Lords, Amendment 196B is in my name and that of my noble friend Lady Hamwee. As we have just been discussing, Chapter 5 of the Bill gives extensive powers to law enforcement officers in relation to maritime enforcement—not just in British territorial waters and not just British vessels but far more extensively—including the power in Clause 86(1) to stop, board, divert and detain the ship,

“if a law enforcement officer has reasonable grounds to suspect that … an offence under the law of England and Wales is being, or has been, committed”.

The amendment seeks to probe whether the powers are intended to apply if a law enforcement officer suspects that any offence whatever has been committed. For example, if two crew members are involved in a fight, could these powers then be used,

“to stop, board, divert and detain”,

the ship? That would appear rather disproportionate. While two crew members having a fight might not be considered a good example, stranger things have happened at sea, apparently. The amendment works on the basis that imitation is the sincerest form of flattery. It takes its wording from proposed new Section 137B by restricting enforcement powers to “indictable” offences only, and only those offences specified in regulations by the Secretary of State. I beg to move.

[Baroness Chisholm of Owlpen]

My Lords, as the noble Lord, Lord Paddick, has explained, Amendment 196B seeks to limit the exercise of the new maritime enforcement powers by the police to suspected offences which are “indictable” and specified in the regulations made by the Secretary of State. He indicated that the intention is to limit the use of these powers to serious crimes, so as to ensure a proportionate response to crime that takes place in the maritime context. I do not believe it necessary to limit these powers in this way.

In other contexts the noble Lord, Lord Paddick, has argued that we should put our trust in the operational judgment of chief officers. This is one such area where we should adopt that principle. We should trust in the operational judgment of the police to determine when it is appropriate to commit resources to investigate an offence on a vessel at sea. It is perhaps highly unlikely that resources would be committed to interdicting a vessel for the purposes of investigating a minor summary-only offence, but we should not rule out the possibility that the police would want to exercise these powers in relation to an either-way offence. We do not impose restrictions on the categories of offences that the police can investigate where they take place on other modes of transportation, so I am unclear why we should treat maritime vessels any differently. For these reasons, I ask the noble Lord to withdraw his amendment.

[Lord Paddick]

I am grateful to the Minister. The reason why this should apply in the case of these maritime powers is that the potential impact of diverting a cargo vessel in the English Channel, for example, is quite significant. While I may have suggested in other contexts that the number of ranks in each police force should be left to the judgment of chief officers, I do not think that the chief constable of whichever force it is will be making the decision as to whether to divert a ship; it will be an officer of relatively junior rank. The Minister also says that the Government should not be restricting the powers to particular offences, in which case I would ask her to explain why proposed new Section 137B does exactly that. But at this stage, I beg leave to withdraw the amendment.

Policing and Crime Bill

Baroness Chisholm of Owlpen Excerpts

Committee: 4th sitting (Hansard - part one): House of Lords
Wednesday 9th November 2016 Lords Chamber

Moved by

[Baroness Chisholm of Owlpen]

203A: Clause 112, page 128, line 40, leave out from beginning to end of line 2 on page 129 and insert—
“(a) either the conditions in subsection (2AA) are met or the condition in subsection (2AB) is met, and(b) if an additional condition is specified in regulations under subsection (2AC), that condition is also met.(2AA) The conditions in this subsection are that—(a) the firearm’s chamber or, if the firearm has more than one chamber, each of its chambers is either—(i) a chamber that the firearm had when it was manufactured, or(ii) a replacement for such a chamber that is identical to it in all material respects;(b) the firearm’s chamber or (as the case may be) each of the firearm’s chambers is designed for use with a cartridge of a description specified in regulations made by statutory instrument by the Secretary of State (whether or not it is also capable of being used with other cartridges).(2AB) The condition in this subsection is that the firearm’s ignition system is of a description specified in regulations made by statutory instrument by the Secretary of State.(2AC) The Secretary of State may by regulations made by statutory instrument specify either of the following conditions for the purposes of subsection (2A)(b)—(a) a condition that a number of years specified in the regulations has elapsed since the date on which the firearm was manufactured;(b) a condition that the firearm was manufactured before a date specified in the regulations.”

[Baroness Chisholm of Owlpen (Con)]

My Lords, Great Britain has some of the toughest gun control laws in the world. However, as matters stand, the Firearms Act 1968 exempts antique firearms held as a “curiosity or ornament” from the scope of firearms legislation, which means they can be held without a firearms certificate. The problem with the current situation is that “antique” is not defined and it is this ambiguity that Clause 112 is designed to address. The law as currently constituted places too much emphasis on how the firearm is possessed—as a curio or ornament—and not on the characteristics and definitions of what constitutes an antique firearm. To resolve these difficulties we propose to define an antique firearm by reference to functionality and will do this in two ways: first, if its chamber is capable of being used only with a cartridge of a specified description and, secondly, if its ignition system is of a specified description.

However, concerns have been raised that instead of bringing the desired certainty to this area of firearms legislation, our definition could create further uncertainty about the status of old firearms because it would be difficult, if not impossible, to rule out the possibility that some antique firearms may be capable of being used with cartridges other than those for which they were originally designed. This would mean that a significant proportion of antique firearms currently regarded as exempt would not be covered by the new definition and in consequence could become prohibited. The amendment therefore sets out that antique firearms should be defined by reference to the chamber they had when manufactured, or an identical replacement chamber, which will allow them to be subject to the exemption. If the chambering has been altered in any way to accommodate ammunition which would otherwise be a loose or imprecise fit, then the firearm will not be subject to the exemption. A firearm may still also achieve antique status based on its ignition system.

The amendment also creates a further regulation-making power to enable the Secretary of State to specify a number of years since the date of manufacture which must have elapsed for a firearm to be antique, or that the firearm must have been manufactured before a specified date. This will guard against modern reproductions benefiting from antique firearms’ exemption from the controls in the legislation. I beg to move.

Amendment 203A agreed.

--- Later in debate ---

Moved by

[Baroness Chisholm of Owlpen]

209: After Clause 116, insert the following new Clause—
“Possession of pyrotechnic articles at musical events
(1) It is an offence for a person to have a pyrotechnic article in his or her possession at any time when the person is—(a) at a place in England where a qualifying musical event is being held, or(b) at any other place in England that is being used by a person responsible for the organisation of a qualifying musical event for the purpose of—(i) regulating entry to, or departure from, the event, or(ii) providing sleeping or other facilities for those attending the event.(2) Subsection (1) does not apply—(a) to a person who is responsible for the organisation of the event, or(b) to a person who has the article in his or her possession with the consent of a person responsible for the organisation of the event.(3) A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding 51 weeks (or, in relation to offences committed before section 281(5) of the Criminal Justice Act 2003 comes into force, 3 months), or to a fine not exceeding level 3 on the standard scale, or to both.(4) In this section, “pyrotechnic article” means an article that contains explosive substances, or an explosive mixture of substances, designed to produce heat, light, sound, gas or smoke, or a combination of such effects, through self-sustained exothermic chemical reactions, other than—(a) a match, or(b) an article specified, or of a description specified, in regulations made by statutory instrument by the Secretary of State.(5) In this section, “qualifying musical event” means an event at which one or more live musical performances take place and which is specified, or of a description specified, in regulations made by statutory instrument by the Secretary of State.(6) A statutory instrument containing regulations under this section is subject to annulment in pursuance of a resolution of either House of Parliament.”

[Baroness Chisholm of Owlpen]

My Lords, Amendment 209 provides for a new offence of possession of pyrotechnic articles at live musical events in England. The amendment is in response to one tabled by Nigel Adams on Report in the House of Commons. The misuse of fireworks, flares and smoke bombs at festivals and other live musical events by members of the public is an increasing and deeply concerning problem. Fireworks and other pyrotechnic articles covered by the amendment are dangerous when misused. Fireworks can burn at in excess of 2,200 degrees centigrade; flares can reach temperatures of 1,600 degrees centigrade and can burn for as long as an hour. Smoke bombs also burn at high temperatures, and in enclosed or crowded spaces the thick smoke that they release can cause breathing difficulties, particularly for asthma sufferers.

In the 1980s, it was recognised that the misuse of pyrotechnic articles in crowded football stadia posed a specific public order risk. As a result, the Sporting Events (Control of Alcohol etc.) Act 1985 provides for an offence of possession of fireworks and flares at a football match. However, current firework and explosives legislation does not provide the police or prosecutors with an appropriate offence to tackle the possession of pyrotechnic articles at music festivals. While the majority of festival organisers have their own rules banning festivalgoers from bringing fireworks and other pyrotechnic articles on to festival premises, no statutory regulation exists. There is no offence for the use of a firework, flare or smoke bomb in a crowd on private property unless it can be proved that it was used with the intent to cause injury or that its use was likely to endanger life or seriously damage property.

Amendment 209 therefore makes it an offence for a person to be in possession of a pyrotechnic article at a qualifying musical event in England. The offence has been so constructed as to apply also where a person is in possession of such articles at a point of entry into, or exit from, the place where a qualifying musical event is taking place, or at a campsite provided for those who are attending the event.

A qualifying musical event will be defined in regulations, subject to the negative procedure. The amendment itself provides that such musical events must involve live musical performances and, in defining a qualifying event, we will want to further target the offence at those events where there is evidence of harm being caused by the misuse of fireworks, flares or smoke bombs. The maximum penalty for the offence is three months’ imprisonment, which is the same as that applicable to the existing football-related offence.

The effect of Amendment 234 is that the offence extends to England and Wales. As I indicated, it applies to England only. However, we are considering further its territorial application in consultation with the Welsh Government. Amendment 245 makes a consequential amendment to the Long Title.

This offence will help prevent the harm that can come from the misuse of such dangerous articles and allow everyone to enjoy live music events safely. I beg to move.

[Baroness Hamwee]

My Lords, I am grateful to officials for explaining the origin of the amendment to me. They commented that the Government’s view is that we should not extend the criminal law unless there is a well-founded case for doing so. I agree with that, but I have instinctive concerns about this proposal. First, what consultation has there been with the entertainment industry? This must be a matter of widespread interest. I cannot say that I go to musical events usually held in the open air—I go to rather staider events—but a lot of people will feel that they are being targeted by the measure. What consideration has been given to, first, whether there should not be a focus on the venue organiser rather than the individual, as this seems to be a matter of crowd control? Secondly, and perhaps more importantly, is there no other way than creating a new specific offence? If fireworks and flares are dangerous—I accept that they are—is this not about the misuse of fireworks rather than the place or event where they may be misused? As for it being a musical event, which is to be determined by regulations, that seems to raise all sorts of problems.

I appreciate that this comes from legislation about football matches, although the 1985 Act cited by the Minister seems a little narrower, unless I have misunderstood it, because the places where the person is found to be in possession are very closely defined, including an area,

“from which the event may be directly viewed”.

When looking up that section, I came across a petition to Parliament to legalise the use of pyrotechnics at football grounds. I could not find its date, but it was rejected on the basis that it was,

“a matter for individual Local Authorities”.

That confused me even more, but I wonder what relation that point has to the amendment.

I am sorry to throw a number of questions at the Minister, but I am sure that the Government considered them before proposing the amendment.

--- Later in debate ---

[Lord Kennedy of Southwark]

My Lords, this new clause is in general most welcome and I am happy to support it from these Benches. It seeks to ban the possession of fireworks, smoke bombs and flares by those attending live musical events. As we have heard, these are extremely dangerous and can burn at more than 2,000 degrees, as the noble Baroness, Lady Chisholm, outlined. There have been a number of injuries, and perhaps we may hear more about that when she responds.

I was surprised to learn that while these items are banned at football matches, it is not the case at musical events. A valid point has been made about widening the ban to other events. That should be considered, too, rather than just picking one area of a problem that may be more widespread. If I am correct, the amendment does not stop the organisers of the event using these articles but just protects the people attending, and prevents people putting them in their bags and setting them off recklessly in the crowd.

The other amendments are consequential. I am generally supportive of them but the noble Baroness, Lady Hamwee, made valid points that require a response from the Government.

[Baroness Chisholm of Owlpen]

I thank noble Lords who have taken part in this short debate and hope that I can answer their questions.

On the point regarding consultation, the proposed new offence is supported by the music industry. The national policing lead for festivals, Assistant Chief Constable Andy Battle of West Yorkshire Police, who is in charge of dealing with these sorts of events countrywide, has also welcomed the proposed legislation. Therefore, we have indeed consulted. In fact, organisers have already made it clear that fireworks should not be brought into festivals but feel that an offence is needed to provide better and greater deference to this understanding and to concentrate people’s minds.

Why does this apply only to music events? The data gathered by the crowd management organisation Showsec on behalf of Live Nation recorded 255 incidents involving pyrotechnic articles at live music events in 2014. This covered seven music festivals and other, smaller venues. This new offence is being created to target the specific problem of pyrotechnics at live music events. There is no evidence to suggest that pyrotechnic articles are a problem at other kinds of events, with the exception of football stadiums, which are covered under sporting events control.

The noble Baroness, Lady Hamwee, also asked about extending the ban outside the event. Extending the offence to include travel to a music event or festival would not only widen the scope of the offence considerably but put it at odds with current legislation on the possession of fireworks and flares. There are also practical considerations regarding how such an extension could be enforced. Police officers would need reasonable grounds to believe that individuals were travelling to a musical event with pyrotechnic articles in order to search them. In our view, this would be an onerous demand on police time. The national policing lead for music festivals, Andy Battle of West Yorkshire Police, agreed that any provision around travel would not be helpful and be problematic to enforce.

A noble Lord asked why fireworks could be included in the general celebration of the event by the organisers. We accept that pyrotechnic articles are often used as part of a performance, and we would not want to restrict that. The new offence will maintain the distinction between pyrotechnics authorised for use as part of a festival or event and those misused by the public. I hope that that has covered everything.

[Baroness Hamwee]

I did not express myself very well. I was not concerned about travel to the event. I was comparing the amendment with Section 2A of the Sporting Events (Control of Alcohol etc.) Act 1985, under which the offence applies when a person,

“is in any area of a designated sports ground from which the event may be directly viewed”.

I was comparing the two matters. That probably highlights the fact that musical events are different.

After hearing the response, I cannot help thinking that this is a matter of how people may use or misuse fireworks and flares in a much more general way. Does the noble Baroness know whether the regulations will address the definition of a qualifying musical event, or will they actually list particular events? She referred to the national policing lead for musical events; I had not realised there was such a post. By definition, that officer will not have given comments about events that are not musical events. If the noble Baroness has no further information—I appreciate that she may not, as we are becoming quite detailed—perhaps it is a matter for another day. But they are not invalid questions.

[Baroness Chisholm of Owlpen]

I might have inspiration from over my left shoulder. The offence will apply to a campsite adjacent to a festival and the regulation-making power will include a generic definition of a live musical event.

Amendment 209 agreed.

Policing and Crime Bill

Baroness Chisholm of Owlpen Excerpts

Committee: 4th sitting (Hansard - part two): House of Lords
Wednesday 9th November 2016 Lords Chamber

Moved by

[Baroness Chisholm of Owlpen]

209A: Clause 119, page 134, line 34, at end insert—
“and for this purpose the conditions of the licence are modified if any of them is altered or omitted or any new condition is added.”

[Baroness Chisholm of Owlpen (Con)]

My Lords, these amendments relate to alcohol licensing. In particular, they introduce two new provisions into the Bill which reform the late-night levy and place cumulative impact policies on a statutory footing.

Amendments 209D and 214D relate to the late night levy, which was introduced in the Police Reform and Social Responsibility Act 2011 and under which licensing authorities are able to charge a levy to those who are licensed to sell alcohol late at night in their areas, as a means of raising a contribution towards the costs of policing the late-night economy. The licensed trade plays an important part in our economy, and the Government’s Modern Crime Prevention Strategy makes it clear that we want to create a night-time economy that people may enjoy safely, without the fear of becoming a victim of crime; that in turn will help businesses to thrive. It is right that businesses which benefit from the late-night economy should pay towards its management when it is creating an additional burden on policing in that area. However, to date, only seven licensing authorities have implemented a late-night levy; that is fewer than anticipated when the levy was introduced in 2012.

Licensing authorities, the police and the licensed trade feel that the levy in its current form is inflexible. Currently, licensing authorities must apply the levy to the whole licensing authority area, and businesses which are not in night-time economy areas feel they are being unfairly charged. These amendments will allow licensing authorities to specify the geographical area, or several separate areas, where they will charge a levy because the night-time economy places a burden on policing, and they will be able to decide whether to include premises licensed to sell late-night refreshment in their levy. The provision of late-night refreshment is defined in the Licensing Act 2003 as hot food and drink sold to the public between 11 pm and 5 am. Such premises are often linked to alcohol-fuelled crime and disorder; for example, fast-food shops are often premises at which late-night drinkers congregate.

PCCs have told us that they would like a formal role in relation to the levy, and we think this is appropriate as 70% of the revenue raised must go to them. The amendment will allow a PCC to request that a licensing authority formally propose a levy, thereby triggering a consultation on whether to implement one in its area. It will need to set out its reasons for doing so with reference to the cost of policing incurred as a result of the night-time economy.

Finally, Amendment 214D requires licensing authorities to publish information about how the revenue raised from the levy is spent. Some licensing authorities do this already, but one of the key concerns of the licensed trade is that there is a lack of transparency about this.

--- Later in debate ---

[Lord Rosser (Lab)]

The issue of the cumulative impact assessments was one that we pursued when the matter was discussed in the Commons. It is for the Government to say why they brought the amendments forward now. But, unless I am misreading the position, at least some of these amendments have some support. Unless I have misread the briefing from the Local Government Association, it supports Amendment 209C, which seeks to ensure that licensing authorities give regard to cumulative impact assessments, and Amendment 209D on late-night levy requirements.

[Baroness Chisholm of Owlpen]

My Lords, I thank all noble Lords who have taken part in this short debate. First, to answer my noble friend Lady McIntosh on whether there was any public consultation, in the summer of 2015 the Home Office held workshops with key partners. One workshop included the Local Government Association, the Institute of Licensing, licensing officers from several local authorities and representatives of the national policing lead on alcohol and the PCC lead on alcohol. The second workshop included industry partners such as the British Beer and Pub Association, the Association of Convenience Stores, the Wine and Spirit Trade Association and the Association of Licensed Multiple Retailers. A survey was sent to all licensing authorities. The Home Office received 32 responses, including one from the PCC working group on alcohol. There is no trade body that represents late-night refreshment providers.

We have heard today from many members of the committee. All I can do is reiterate what I said in my speech: we shall of course look carefully at the findings of the committee before coming to any final conclusions and before implementing the provisions. We will wait for the Select Committee’s report next March. As I said, these reforms were announced in the Government’s Modern Crime Prevention Strategy that was published this March, some two months before the Select Committee was established. The Government are keen to take the opportunity afforded by the Bill to legislate on these matters so that they can be enacted as soon as possible. But that does not change the fact that we shall wait for the findings of the Select Committee.

The 70:30 split was mentioned. This can be amended by secondary legislation, so there is no need to make provision in the Bill. As I have said, we will consider any recommendation the Select Committee may make on this issue.

The Government believe it is right to proceed with these amendments now, as alcohol provisions were included in the Bill on its introduction to the Commons in February—so this is an appropriate vehicle to legislate on the new measures. As the noble Lord, Lord Rosser, said, the Opposition tabled amendments on cumulative impact policies in the Commons and these government amendments respond, in part, to those Commons amendments.

[Baroness McIntosh of Pickering]

I am most grateful to the Minister for her reply, but can I just press her on the semantics? Could she give the House and the committee a commitment that the Government will look at our recommendations and consider revising the wording of the amendments that she has put before the Committee today if they conflict with the recommendations and conclusions that the committee reaches?

[Baroness Chisholm of Owlpen]

I cannot go further than I already have in saying that we will of course look very carefully at the findings of the committee before coming to any final conclusions. That is as far as I can go. Everything else is rather hypothetical at the moment.

[Baroness Hamwee]

My Lords, perhaps the noble Baroness can assist this Committee with the timing. I imagine that the Select Committee will probably be required to report in February, but this Bill is likely to have concluded its passage before then. As a result, I am unclear how recommendations from the committee can affect the content of the Bill, but she may have information about the relative timings that could help this Committee.

[Baroness Chisholm of Owlpen]

We will not pre-empt what the committee is going to say, so we have to wait until we hear from it.

[Baroness Grender]

The Minister has said we cannot deal in hypotheticals, and yet we are about to accept some amendments which may well, in the light of the conclusions of our committee, be hypothetical. It seems to me that the most sensible solution is to not currently have amendments in this area, because those very amendments may be hypothetical.

[Baroness Chisholm of Owlpen]

I think I explained that the reason we proceeded with the amendments was because the alcohol provisions were included in the Bill on the Commons introduction in February, so this is an appropriate vehicle to legislate on the new measures. That is why we have brought them forward now. This was discussed in the Commons, and these government amendments respond, in part, to the ones that were tabled in the Commons.

[Baroness McIntosh of Pickering]

Can my noble friend confirm that these amendments were not discussed in the Commons? I do not believe that their content was discussed. Just for the sake of greater clarity, all we are asking is that these amendments be stayed until such time as we have concluded our report. In the words of the noble Baroness, Lady Henig, we are trying to help the Government. We want to have good laws and legislation that works, but clearly, at the moment, late night levies appear not to be working.

[Baroness Chisholm of Owlpen]

We want good legislation as well of course and, as I think I said, we will look carefully at the findings of the committee before coming to any final conclusions. I think that is really as far as I can go.

Amendment 209A agreed.

--- Later in debate ---

Moved by

[Baroness Chisholm of Owlpen]

209B: Clause 120, page 136, leave out lines 23 to 29

--- Later in debate ---

Moved by

[Baroness Chisholm of Owlpen]

209C: After Clause 122, insert the following new Clause—
“Cumulative impact assessments
(1) The Licensing Act 2003 is amended as follows.(2) In section 5 (statement of licensing policy), after subsection (6C) insert—“(6D) In determining or revising its policy, a licensing authority must have regard to any cumulative impact assessments published by it under section 5A.(6E) A licensing statement must—(a) summarise any cumulative impact assessments published by the licensing authority under section 5A, and(b) explain how the licensing authority has discharged its duty under subsection (6D).”(3) After section 5 of the Licensing Act 2003 (statement of licensing policy) insert—“5A Cumulative impact assessments(1) A licensing authority may publish a document (“a cumulative impact assessment”) stating that the licensing authority considers that the number of relevant authorisations in respect of premises in one or more parts of its area described in the assessment is such that it is likely that it would be inconsistent with the authority’s duty under section 4(1) to grant any further relevant authorisations in respect of premises in that part or those parts.(2) A cumulative impact assessment must set out the evidence for the authority’s opinion as set out in the assessment in accordance with subsection (1).(3) For the purposes of this section, “relevant authorisations” means—(a) premises licences;(b) club premises certificates.(4) A cumulative impact assessment may relate to all relevant authorisations or only to relevant authorisations of a kind described in the assessment.(5) Before publishing a cumulative impact assessment, the licensing authority must consult the persons mentioned in section 5(3).(6) For the purposes of the consultation, the licensing authority must provide the persons mentioned in section 5(3) with the following information—(a) the reasons why it is considering publishing a cumulative impact assessment;(b) a general indication of the part or parts of its area which it is considering describing in the assessment;(c) whether it considers that the assessment will relate to all relevant authorisations or only to relevant authorisations of a particular kind.(7) Where a licensing authority publishes a cumulative impact assessment, it must, before the end of each relevant period, consider whether it remains of the opinion stated in the assessment.(8) Before deciding whether it remains of that opinion, the licensing authority must consult the persons mentioned in section 5(3).(9) If the licensing authority is no longer of that opinion—(a) it must publish a statement to that effect, and (b) the duties in section 5(6D) and (6E) and subsection (7) of this section cease to apply in relation to the assessment.(10) If the licensing authority remains of that opinion, it must revise the cumulative impact assessment so that it—(a) includes a statement to that effect, and(b) sets out the evidence as to why the authority remains of that opinion.(11) A licensing authority must publish any revision of a cumulative impact assessment.(12) In subsection (7), “relevant period” means the period of three years beginning with the publication of the cumulative impact assessment or a revision of the cumulative impact assessment.””

--- Later in debate ---

[Lord Rosser]

I thank the noble Lord, Lord James of Blackheath, for his contribution. I do not go into betting shops, but he has confirmed that I have only a marginally smaller chance of winning than those who do. My noble friend Lord Beecham and the right reverend Prelate the Bishop of Salisbury in particular have already set out the background to and concerns behind this group of amendments: concerns about the increase in reported criminal offences linked to betting shops, which has coincided with the proliferation of fixed-odds betting terminals. These criminal offences relate both to violence towards staff and to damage to property arising from losses incurred from gambling on these terminals.

There is a link between the use of fixed-odds betting terminals and their anonymity for user and money laundering, with one major firm fined some £800,000 by the Gambling Commission this summer over inadequate protection against money laundering. At present, licensing authorities can lay down a series of conditions on betting premises to help ensure that the licensing objectives of preventing crime and protecting the vulnerable are delivered and maintained. However, licensing authorities cannot limit the number of machines below the maximum of four per betting premise, and neither can they lay down requirements for the operation of gaming machines including fixed-odds betting terminals.

This group of amendments would, among other things, achieve these objectives by allowing licensing authorities to place conditions which could limit the number of fixed-odds betting terminals permitted under a gambling premises licence. Fixed-odds betting terminals now contribute, as I understand it, well over 50% of the profits of high street betting shops. These amendments would also allow licensing authorities to place conditions on gambling premises which would restrict the operation of gaming machines including fixed-odds betting terminals to people who have established their identity with the gambling premises concerned. This would assist in addressing money laundering and also help to reduce the incidence of violent disorders, including aggression towards staff, and the risk of under-age gambling. In both instances the licensing authority would have to show why these conditions were necessary to ensure that the licensing objectives to which I have already referred were delivered.

A further amendment in this group would also mean that licensing authorities did not have to determine each licence application in isolation. Instead, the amendment would make it clear that such authorities could take account of the cumulative impact on a range of local factors in making a decision—factors such as social deprivation and local crime rates, the creation of a betting shop cluster and the proximity of local schools or centres for other groups of vulnerable people. Such a provision in the relevant amendment in this group would better enable licensing authorities to protect areas that they considered at real risk of gambling harm.

The purpose of these amendments—as has already been said, Amendment 214, the main amendment, has the support of the Local Government Association—is to give local authorities a much-needed wider range of measures to enforce the existing licensing objectives. I hope that the Government will respond favourably. Surely local authorities are in the best position to know what is and is not needed in their own community. They should now have the necessary powers to deliver the existing licensing objectives.

[Baroness Chisholm of Owlpen]

My Lords, as the noble Lord, Lord Beecham, and the right reverend Prelate explained, these amendments would have the effect of devolving power over licence conditions for gaming premises and gaming machines to local authorities. The number of gaming machines authorised under a gambling premises licence is regulated by the Gambling Act 2005. Licensing authorities do not currently have the power to change this limit, and cannot impose licence conditions on gaming machines that relate to stakes or prizes. However, they do have licensing powers in respect of gambling premises. These include powers to reject an application for a licence and powers to impose other conditions, for example around opening hours. They can also review and revoke licences. The Department for Communities and Local Government also brought in new planning laws last year that ensure that applications to change, for example, a disused shop into a bookmaker’s office will need planning consent.

In looking to introduce this new clause, the right reverend Prelate is seeking to limit the number of fixed-odds betting terminals in bookmakers and casinos. The Government understand the concern that such gaming machines could fuel problem gambling and are committed to reducing the risks of potential harms associated with such machines. Indeed, last year, we introduced new regulations to ensure that players staking over £50 on these machines either had to open an account or had to interact with staff. Evaluation shows that there has been a significant decrease in players staking above £50. The Gambling Commission also introduced new social responsibility requirements last year, including measures that force customers to make an active choice on whether to set time and money limits while playing these machines.

In addition, the noble Lord, Lord Beecham, is seeking to enable licensing authorities to impose minimum staffing levels on premises with such machines. The noble Lord may have in mind a number of tragic incidents in high street bookmakers over the last few years. The Association of British Bookmakers’ Safe Bet Alliance provides specific guidance on staffing security in bookmakers, which was drafted with the input of the Metropolitan Police. Members of the Association of British Bookmakers operate single staffing only when a risk assessment has been undertaken.

Sections 167 and 168 of the Gambling Act 2005 empower the Secretary of State for Culture, Media and Sport to set mandatory and default conditions on premises licences via secondary legislation, which could include a condition setting staffing levels. This would be the preferred route to make such a change. In addition, I must emphasise that the Government believe that the appropriate mechanism for reviewing stakes and prizes, and gaming machine numbers, is the review announced on 24 October by the Minister responsible for gambling, which will consider these issues in a more holistic and comprehensive context.

My noble friend Lord James mentioned statistics about roulette wheels. I have to say that I got slightly lost in all the various numbers, which is not surprising considering that I was unable to add the 45 minutes when it came to the lunchtime break—but I certainly take his point and I listened with interest.

The noble Lord, Lord Beecham, talked about the Sustainable Communities Act. The Government are engaging with the LGA on this issue. The review announced on 24 October is the right mechanism to consider all these issues, and the Government invite Newham Council to take part in that review.

The Government are alive to the concerns about the dangers posed by fixed-odds betting terminals. As I have set out, we have already taken steps to tighten the controls on these machines and have set out our plans for the review of gaming machines, gambling advertising and social responsibility, which will include stakes on fixed-odds betting terminals. I am sure that the right reverend Prelate, the noble Lord, Lord Beecham, and other noble Lords will want to contribute to that review, and I encourage them to do so. The review will include a close look at the issue of B2 gaming machines—more commonly known as fixed-odds betting terminals—and specific concerns about the harm that they cause, be that to the player or the community in which they are located. The call for evidence period will close on 4 December, following which the Government will consider proposals based on robust evidence provided to assist in our decisions.

Given that this process is in train, I invite the noble Lord, Lord Beecham, to withdraw the amendment.

[Lord Beecham]

I thank the noble Baroness for her reply, so far as it goes, which I fear is not very far at all. If the Government are relying on the industry to come forward with proposals, many of us would be somewhat sceptical about a satisfactory result emerging.

I am not, as some of your Lordships will be aware, an enthusiast for secondary legislation but it seems to me that it would be sensible for the Government to take the power, at least, to regulate in some of the areas we have discussed, even if they do not want to incorporate the specific details of the amendments we have been discussing today in primary legislation. It would be a wasted opportunity, it seems to me, if, as I suspect, the gaming industry will not come up with satisfactory answers to the many questions which have been raised today, to then expect a further Bill to come forward. The legislative timetable, many of us will imagine, will be dominated by things of a rather more international flavour for the next few years, whereas, giving the power to regulate on issues of the kind we have identified here would be a much simpler parliamentary process and one which is quite appropriate.

I do not think that many of us in your Lordships’ House have any great confidence in the gaming industry’s willingness to address the problems that have been identified across the House this afternoon. While at this point I will obviously not be asking the House to divide, this is a matter that I hope the Government will consider in a constructive way before Report. I would be tempted, and will discuss this with other of your Lordships, to embody in resolutions on Report a power to deal with matters as I have suggested by way of secondary legislation, but it would be better if the Government took that step. No doubt the noble Baroness will be willing to discuss this with interested Members before Report, but as matters stand I beg leave to withdraw the amendment.

--- Later in debate ---

[Baroness Chisholm of Owlpen]

I am grateful to my noble friend Lord Moynihan for raising the important issue of tackling doping in sport.

This has been a difficult year for sport and those fighting doping—namely, the World Anti-Doping Agency, the International Olympic Committee and the International Paralympic Committee. We must recognise that these are global issues that cannot be solved by legislative action in any one country, although we must play our part. We are not complacent and continue to do all we can to protect the integrity of sport in this country, particularly where there is strong evidence that calls for government intervention.

As my noble friend mentioned, the Sunday Times allegations against UK Anti-Doping were disappointing to read. UK Anti-Doping immediately launched an independent investigation, the outcome of which recommended a number of actions to be implemented, all of which have been accepted by that organisation. Such action reflects the tough stance that the Government and UK Anti-Doping take on doping in the fight to provide a level playing field for our athletes to compete on.

My noble friend raises a valid point in saying that those athletes who dope are defrauding our clean athletes. We recognise that the desire to dope can be driven financially, and financial penalties are likely to be as damaging to those who cheat as a ban would be. However, the Government believe that rather than tackling this through legislation, it should be a matter for sports bodies. We recognise that a sanction in this regard could well act as a strong deterrent to doping cheats who represent the UK or compete in our events.

The UK Government and UK Anti-Doping have a reputation for taking a tough, measured stance on doping. To maintain that, we need to ensure that there is a strong evidence base before any consideration or commitment is given to taking forward any possible legislative options. In order to have that evidence base, the Department for Culture, Media and Sport is currently conducting a cross-government review of the existing anti-doping legislative framework and assessing whether stronger criminal sanctions are required. The relevant government departments and agencies, such as the Home Office, the Ministry of Justice, the National Crime Agency and the Serious Fraud Office, are contributing to the review. We expect the outcome of the review to be published before the end of the year.

In conclusion, I ask my noble friend to be patient for a little longer. The Government are very much alive to the issues he raised and are actively examining what more needs to be done. In fact, the Minister for Sport and Tourism, during a debate on 6 July on doping and the Olympics, said:

“The review is currently under way and, should it become clear that stronger criminal sanctions are needed, we will not hesitate to act”.—[Official Report, Commons, 6/7/16; col. 365WH.]

I hope, therefore, that my noble friend will be happy to withdraw his amendment.

[Lord Moynihan]

My Lords, I thank all those who have participated in the debate and shall comment briefly on the questions and points that have been raised.

First, the interpretation by the noble Lord, Lord Harris, of the reach of the amendment is correct and is set out in proposed new subsection (1). There is a real problem in the perception, for example among athletes and in the world of rugby, that the time to bulk out is when they are at university age or college age so that they can move on to the professional ranks. There are serious issues of doping in sport at that age, and I believe very strongly that when this is passed, as I hope it will be at some stage in the parliamentary process, it will be a very strong deterrent to those young people not to take performance-enhancing drugs.

The noble Lord, Lord Rosser, in a strong and comprehensive speech, focused on Rio. I would reflect on this one point about testing at the Olympic Games. If you test positive at the Olympic Games, you come into the category of the dopey dopers, because the chances are that if you are on drugs at that point, you will get caught. If you want to knowingly cheat fellow athletes out of selection, you take drugs now—in the winter months—and go to countries of the world were testing is non-existent and where you can be pretty sure you can spend four or six weeks enhancing your performance doing six circuits a day as opposed to a normal person’s three, and then retain the benefit of that muscle bank as you move into the summer season, having lost any trace of the drugs in your system. Indeed, you can take a range of drugs that act as a curtain in front of a play, reducing the chance that you will be caught as you move into the season. The huge amount of money that the World Anti-Doping Agency put into testing at the Olympic Games is effectively to catch the dopey dopers, not those who spend a lot of time and effort to enhance their performance during the winter months, and thus cheat fellow athletes out of selection.

I am very grateful to the noble Baroness, Lady Wheatcroft, for her overgenerous words. She was an outstanding member of the advisory board that helped to design and implement the work that the British Olympic Association did to ensure the success of London 2012—so she is being overmodest in saying that her knowledge of the world of sport is not as great as she might like. It is outstandingly good.

I am also grateful to the Minister. I absolutely agree with her starting point that the World Anti-Doping Agency needs to work in tandem with individual countries, working closely together to put in place an effective legislative framework to deal with this issue. However, it is not correct to say that leaving it completely to the World Anti-Doping Agency and to the sporting bodies will solve this problem. It patently is not solving the problem, which is the reason why so many countries are now legislating. Although they need to legislate in harmony, reflecting their own national interest, they have to legislate together, which is exactly what they are doing. In framing the legislation today, I have taken the example of the Germans, the Italians and the Dutch, who have focused on the fact that it is not just the athlete but the entourage who need to be criminalised. The deterrent effect in those countries of putting legislation on to the statute books has already been very effective.

Finally, on the end-of-year review, I said at the outset that I have been working on this since the Copenhagen declaration exactly 30 years ago, since when there have been so many reviews that it would take me a while to go through them all on Google. However, I always welcome further research and reflections from the Government. I note that they talk about the end of the year, which seems to be very close to our consideration of this legislation on Report. I therefore urge the Minister to see whether the review can be completed in time for Report so that we can take it into consideration. Even if it cannot, I would very much hope that, on Report, we can reflect on what my noble friend the Minister has said, as well as on the speeches made today from both sides of the House. We can then see whether we should send a legislative framework down to the Commons, so that in the new year, which is the likely date, Members can take into account the review to which the Minister alluded and, if necessary, amend the legislation at that point. We can consider any further amendments.

I believe there is widespread support for this provision both inside and outside the House and across parties. I very much hope this work will continue between now and Report, with further consideration on Report. In the light of that, and with my thanks to the Minister for her speech, I beg leave to withdraw the amendment.

--- Later in debate ---

[Baroness Hamwee]

My Lords, Clause 140 provides for a requirement to produce a nationality document in the case where,

“an individual has been arrested on suspicion of the commission of an offence”,

and,

“an immigration officer or constable”,

gives,

“the individual a notice requiring the production of a nationality document”.

This amendment comes from the Joint Committee on Human Rights, of which I am a member. The committee regarded Article 14—the anti-discrimination article—as being engaged. The organisation Liberty has argued that if these powers,

“are to operate in a similar fashion to powers in the Immigration Bill”,

which a number of us will recall,

“immigration checks would become a routine aspect of every police engagement with a suspect. It is difficult to think how suspicion”,

which is required,

“will be generated if this is not the intended model, short of the police making assumptions about an individual’s status on the basis of appearance or accent”.

The committee noted the risk in this provision that requirements to confirm nationality could have a differential impact on BAME UK citizens. As our report says:

“We also questioned whether a person asked to produce a passport or other nationality document should instead be entitled to supply documentation sufficient to demonstrate an entitlement to such a document”,

since not everyone has a passport. We contacted the then Minister for the subject, who told the committee in the summer:

“Before deciding to issue a notice requiring a nationality document to be produced, as a matter of operational best practice, officers should check whether or not there is an immigration interest with Home Office Immigration Enforcement. If, having undertaken these checks, it is confirmed that the individual is not a UK national (or it is suspected the person may not be), it is a proportionate response to require the production of a document in order to properly establish identity. Should a UK national not possess a passport but are able to produce evidence (documentary or otherwise) that they are entitled to one under the terms of published guidance, it is reasonable that officers should take that into account. We”—

the Government—

“do not consider it necessary that such eventualities are set out on the face of the Bill, but will instead issue guidance to officers in that regard”.

The Joint Committee made the following point:

“If the Government accepts that alternative documentation may be required in circumstances where an individual does not possess a passport or driving licence, it is not clear why this fact should not be stated on the face of the Bill”.

This is a safeguard, after all, and something more than operational guidance would be appropriate. I beg to move.

[Baroness Chisholm of Owlpen]

My Lords, I am grateful to the noble Baroness and the other members of the Joint Committee on Human Rights for their consideration of the Bill. It is accepted that there may be situations where a UK national does not possess a passport and should be able to produce other documentary evidence to satisfy an officer that they are entitled to one under the terms of published government guidance.

The Government’s view is that this matter can properly be addressed through guidance, but in the light of the Joint Committee’s recommendation, I am content to take this amendment away and consider it further in advance of Report. I trust that, on that basis, the noble Baroness would be content to withdraw her amendment.

[Baroness Hamwee]

My Lords, four minutes has achieved more than I might have expected. I realise that perhaps, in reading the content of the report fairly quickly, I might not have sufficiently stressed the risks of discrimination with which we were particularly concerned. Having said that, I beg leave to withdraw the amendment.

--- Later in debate ---

Moved by

[Baroness Chisholm of Owlpen]

215: After Clause 143, insert the following new Clause—“Anonymity of victims of forced marriage: Northern Ireland
(1) After Part 4 of the Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015 (c.2 (N.I.)) insert—“Part 4APROTECTION OF VICTIMS OF FORCED MARRIAGE24A Anonymity of victims of forced marriageSchedule 3A (anonymity of victims of forces marriage) has effect.”(2) Insert, as Schedule 3A to that Act, the following Schedule—“SCHEDULE 3AANONYMITY OF VICTIMS OF FORCED MARRIAGEProhibition on the identification of victims in publications1_(1) This paragraph applies where an allegation has been made that an offence of forced marriage has been committed against a person._(2) No matter likely to lead members of the public to identify the person, as the person against whom the offence is alleged to have been committed, may be included in any publication during the person’s lifetime._(3) In any criminal proceedings before a court, the court may direct that the restriction imposed by sub-paragraph (2) is not to apply (whether at all or to the extent specified in the direction) if the court is satisfied that either of the following conditions is met._(4) The first condition is that the conduct of a person’s defence at a trial of an offence of forced marriage would be substantially prejudiced if the direction were not given._(5) The second condition is that—(a) the effect of sub-paragraph (2) is to impose a substantial and unreasonable restriction on the reporting of the proceedings, and(b) it is in the public interest to remove or relax the restriction._(6) A direction under sub-paragraph (3) does not affect the operation of sub-paragraph (2) at any time before the direction is given._(7) In this paragraph, “the court” means a magistrates’ court, a county court or the Crown Court.Penalty for breaching prohibition imposed by paragraph 1(2)2_(1) If anything is included in a publication in contravention of the prohibition imposed by paragraph 1(2), each of the persons responsible for the publication is guilty of an offence. _(2) A person guilty of an offence under this paragraph is liable, on summary conviction, to a fine not exceeding level 5 on the standard scale._(3) The persons responsible for a publication are as follows—

Type of publication	Persons responsible
Newspaper or other periodical	Any person who is a proprietor, editor or publisher of the newspaper or periodical.
Relevant programme	Any person who— (a) is a body corporate engaged in providing the programme service in which the programme is included, or (b) has functions in relation to the programme corresponding to those of an editor of a newspaper.
Any other kind of publication	Any person who publishes the publication.

_(4) Proceedings for an offence under this paragraph may not be instituted except by, or with the consent of, the Director of Public Prosecutions for Northern Ireland.Offence under paragraph 2: defences3_(1) This paragraph applies where a person (“the defendant”) is charged with an offence under paragraph 2 as a result of the inclusion of any matter in a publication._(2) It is a defence for the defendant to prove that, at the time of the alleged offence, the defendant was not aware, and did not suspect or have reason to suspect, that—(a) the publication included the matter in question, or(b) the allegation in question had been made._(3) It is a defence for the defendant to prove that the publication in which the matter appeared was one in respect of which the victim had given written consent to the appearance of matter of that description._(4) The defence in sub-paragraph (3) is not available if—(a) the victim was under the age of 16 at the time when his or her consent was given, or(b) a person interfered unreasonably with the peace and comfort of the victim with a view to obtaining his or her consent._(5) In this paragraph, “the victim” means the person against whom the offence of forced marriage in question is alleged to have been committed.Special rules for providers of information society services4_(1) Paragraph 2 applies to a domestic service provider who, in the course of providing information society services, publishes prohibited matter in an EEA state other than the United Kingdom (as well as to a person, of any description, who publishes prohibited matter in Northern Ireland)._(2) Proceedings for an offence under paragraph 2, as it applies to a domestic service provider by virtue of sub-paragraph (1), may be taken at any place in Northern Ireland._(3) Nothing in this paragraph affects the operation of any of paragraphs 6 to 8.5_(1) Proceedings for an offence under paragraph 2 may not be taken against a non-UK service provider in respect of anything done in the course of the provision of information society services unless the derogation condition is met._(2) The derogation condition is that taking proceedings—(a) is necessary for the purposes of the public interest objective, (b) relates to an information society service that prejudices that objective or presents a serious and grave risk of prejudice to that objective, and(c) is proportionate to that objective._(3) “The public interest objective” means the pursuit of public policy.6_(1) A service provider does not commit an offence under paragraph 2 by providing access to a communication network or by transmitting, in a communication network, information provided by a recipient of the service, if the service provider does not—(a) initiate the transmission,(b) select the recipient of the transmission, or(c) select or modify the information contained in the transmission._(2) For the purposes of sub-paragraph (1)—(a) providing access to a communication network, and(b) transmitting information in a communication network,include the automatic, intermediate and transient storage of the information transmitted so far as the storage is solely for the purpose of carrying out the transmission in the network._(3) Sub-paragraph (2) does not apply if the information is stored for longer than is reasonably necessary for the transmission.7_(1) A service provider does not commit an offence under paragraph 2 by storing information provided by a recipient of the service for transmission in a communication network if the first and second conditions are met._(2) The first condition is that the storage of the information—(a) is automatic, intermediate and temporary, and(b) is solely for the purpose of making more efficient the onward transmission of the information to other recipients of the service at their request._(3) The second condition is that the service provider—(a) does not modify the information,(b) complies with any conditions attached to having access to the information, and(c) if sub-paragraph (4) applies, promptly removes the information or disables access to it._(4) This sub-paragraph applies if the service provider obtains actual knowledge that—(a) the information at the initial source of the transmission has been removed from the network,(b) access to it has been disabled, or(c) a court or administrative authority has ordered the removal from the network of, or the disablement of access to, the information.8_(1) A service provider does not commit an offence under paragraph 2 by storing information provided by a recipient of the service if—(a) the service provider has no actual knowledge when the information was provided that it was, or contained, a prohibited publication, or(b) on obtaining actual knowledge that the information was, or contained, a prohibited publication, the service provider promptly removed the information or disabled access to it._(2) Sub-paragraph (1) does not apply if the recipient of the service is acting under the authority or control of the service provider.Interpretation9_(1) In this Schedule— “domestic service provider” means a service provider established in England and Wales, Scotland or Northern Ireland;“the E-Commerce Directive” means Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce);“information society services”—(a) has the meaning given in Article 2(a) of the E-Commerce Directive (which refers to Article 1(2) of Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations), and(b) is summarised in recital 17 of the E-Commerce Directive as covering “any service normally provided for remuneration, at a distance, by means of electronic equipment for the processing (including digital compression) and storage of data, and at the individual request of a recipient of a service”;“non-UK service provider” means a service provider established in an EEA state other than the United Kingdom;“offence of forced marriage” means an offence under section 16 of the Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015 (c.2 (N.I.));“programme service” has the same meaning as in the Broadcasting Act 1990 (see section 201(1) of that Act);“prohibited material” means any material the publication of which contravenes paragraph 1(2);“publication” includes any speech, writing, relevant programme or other communication (in whatever form) which is addressed to, or is accessible by, the public at large or any section of the public;“recipient”, in relation to a service, means a person who, for professional ends or otherwise, uses an information society service, in particular for the purposes of seeking information or making it accessible;“relevant programme” means a programme included in a programme service;“service provider” means a person providing an information society service._(2) For the purposes of the definition of “publication” in sub-paragraph (1)—(a) an indictment or other document prepared for use in particular legal proceedings is not to be taken as coming within the definition;(b) every relevant programme is to be taken as addressed to the public at large or to a section of the public._(3) For the purposes of the definitions of “domestic service provider” and “non-UK service provider” in sub-paragraph (1)—(a) a service provider is established in a particular part of the United Kingdom, or in a particular EEA state, if the service provider—(i) effectively pursues an economic activity using a fixed establishment in that part of the United Kingdom, or that EEA state, for an indefinite period, and(ii) is a national of an EEA state or a company or firm mentioned in Article 54 of the Treaty on the Functioning of the European Union; (b) the presence or use in a particular place of equipment or other technical means of providing an information society service does not, of itself, constitute the establishment of a service provider;(c) where it cannot be determined from which of a number of establishments a given information society service is provided, that service is to be regarded as provided from the establishment at the centre of the service provider’s activities relating to that service.””

[Baroness Chisholm of Owlpen]

My Lords, Clause 143 provides for lifelong anonymity for all alleged or proven victims of forced marriage in England and Wales, from the point of investigation onwards. At the request of the Minister of Justice in Northern Ireland, Amendments 215, 237 and 241 now extend this protection to cover victims in Northern Ireland.

We know that forced marriage can be hidden, and this measure will help to ensure that victims have the confidence to come forward so that they get the support they need and so that perpetrators are brought to justice. The protection mirrors the anonymity we introduced last year for victims of female genital mutilation. It will mean that the anonymity of victims of forced marriage can be protected from the time an allegation is made and that the publication or broadcast of any information likely to result in their being identified to the public is prohibited. Breach of the prohibition will be an offence punishable by a level 5—that is, £5,000—fine.

I will respond to Amendment 219CA once the Committee has had the opportunity to hear from my noble friend Lady Berridge. For now, I beg to move.

[Baroness Berridge]

My Lords, I rise to speak to Amendment 219CA. This lengthy amendment, which at the outset I accept will need recrafting on Report, seeks to deal with a simple problem that has cropped up in our law. It has done so accidentally, I think, but if not sorted out it will cause injustice. Although it is late, a short description of the law and the problem is necessary by way of background.

Successive Governments have sought to tackle forced marriage, beginning with the Forced Marriage (Civil Protection) Act 2007 and with further criminalisation in the Anti-social Behaviour, Crime and Policing Act 2014. To make these remedies effective, the law incorporated—for the first time, I believe—a definition of marriage that included marriages that were not at that time valid under UK law. I quote from the Crown Prosecution Service guidelines on the definition of “marriage”. It states that,

“‘marriage’ means any religious or civil ceremony … recognised by the customs of the parties to it, or the laws of any country in which it is carried out, as constituting a binding agreement, whether or not it would be legally binding according to the law of England and Wales”.

So a relationship that UK law does not currently define as marriage can now, for very good reason, count in our criminal courts and some of our civil courts, for forced marriage purposes, as a marriage. However, this leaves a gap.

A party to a forced marriage that is not valid under UK law cannot use that conviction as evidence of the marriage in the family courts to gain financial remedies. If you have entered into a marriage under duress—a forced marriage that is valid under UK law—that can be the subject of a crime or a civil protection order. You can then, because it is valid under UK law, go to the family courts and say, “I was forced into this marriage under duress”. It is then voidable and it can be annulled. This opens the door to financial relief and the distribution of the matrimonial property.

If under duress in our law you are forced into a religious marriage, it is valid for the purposes of our law in the criminal courts for a criminal offence under the civil protection forced marriage regime, but you are not then entitled to then take that conviction to the Family Court to obtain matrimonial remedy. This is a very different situation from the marriages valid under UK law, as I have outlined, for which you can get an annulment or, of course, a divorce. So if our law has accepted this small number of relationships as marriage for the purpose of the law on forced marriage, why can they not be used for other purposes, such as gaining financial remedy? Not allowing them to be used in this way is a real injustice to those victims of forced marriage who come forward to the Crown Courts but are left with the doors of the Family Courts shut to them in terms of matrimonial property.

I am not seeking for the law to see this small number of relationships as marriages for all purposes or to foist this on a person who, even after there is a conviction for forced marriage, wishes it to be viewed for all other purposes as the religious marriage it was but under duress. Surely, however, that person, in a forced marriage under duress that was a religious marriage, should have a choice—leave it as a religious marriage or take the conviction and be allowed to claim financial remedy under the Matrimonial Courts Act and other such remedies as he or she may on occasion need.

Many of those who have spoken to me on this issue are practising barristers and solicitors. There are many women who, some practitioners believe, do not come forward after years in a forced marriage that is valid only as a religious marriage under our law, as they know that our law leaves them without means to claim matrimonial property. They know they risk the only recourse being welfare benefits, particularly if their children are now adults and they have no claim for maintenance based on caring for the children. Their view is that many of these women would come forward to the Crown Court but are reluctant to do so because they do not want to leave themselves financially vulnerable and unable to access financial remedies. We have an anomaly created by the entry of a different definition of marriage into our law.

Surely it would be just for these people and for the taxpayer to allow someone who is the victim of a forced marriage of this nature to claim, if they wish, the matrimonial property as well. By analogy, we do not retry domestic violence convictions in our Family Courts after the Crown Courts convict a husband or wife. The conviction is accepted as evidence and used by the Family Courts. Why can a forced marriage conviction not also be used in such a simple procedural way to unlock the discretion to redistribute the property and bring justice and consistency in this regard across all our courts—civil, family and criminal?

I hope that my noble friend the Minister might have time to meet with the interested groups that are concerned about this problem in our law. I raised this matter at the time with the anti-social behaviour Bill, and it has come back because there are concerns around the gap we have left for victims of forced marriages that are religious marriages which are not fully accepted under our law. The amendment is a pre-emptive strike to try to avoid this injustice happening and potentially encourage a larger number of women to come forward because they will not risk their property rights, and they will be able to claim the matrimonial property as well as get a conviction in the Crown Court. I beg to move.

[Baroness Hamwee]

My Lords, we on these Benches very much support the noble Baroness’s amendment. She has obviously been working at this for some time—I see from her face that she has—and her explanation is clear and obviously based on the experiences of which she is aware. So we give her our support.

[Baroness Chisholm of Owlpen]

I am grateful to my noble friend Lady Berridge for explaining the purpose of her amendment. The Government are mindful that forced religious marriage may be a deliberate attempt to avoid financial consequences in the event of the break-up of the marriage. The existing position is that the financial orders provided for in the Matrimonial Causes Act 1973 are available only where a marriage is capable of legal recognition in England and Wales and where it is being brought to an end—or where judicial separation is ordered. However, where a marriage is not capable of legal recognition, parties have the same recourse to the court as unmarried cohabiting couples on the breakdown of the relationship. This applies to the division of any property and to financial provision for any children the couple have.

For those in a marriage that has no legal validity, the pressure from families and communities to stay together is no less strong because of the fact that the marriage has no legal consequences. It does not make it any easier for an individual to escape an abusive relationship, and we share my noble friend’s concern that it leaves women in particular vulnerable to hardship when the relationship breaks up, since there is no recourse to the court for the financial orders available to divorcing couples. The Government take this issue very seriously, and it is central to the independent sharia law review launched by the current Prime Minister in May this year. The Government will wish to consider the issue further in light of the findings from the review.

None the less, the law governing marriage, divorce and matrimonial property is complex, nuanced and finely balanced, reflecting as it does the wide range of personal circumstances in which people find themselves. The amendment would introduce a disparity with unmarried cohabitants and with those who are in unregistered marriages that are not forced. There is no evidence at this stage that the amendment—

[Lord Harris of Haringey]

I understand the point the Minister is making about consent, difficult precedents, cohabitation and so on. But we are talking about a specific circumstance here, which is about coercion. These are not proper arrangements, because somebody has been forced into marriage against their will. That is the context we are talking about. We are not talking about a sort of touchy-feely cohabitation relationship which then breaks down, but about somebody who has been forced into an arrangement of this sort, which is totally inappropriate and wrong in law.

[Baroness Chisholm of Owlpen]

I was not suggesting that, just that there are difficulties—other reasons why it could be more difficult to bring in. That is not to say that we are not keen to look further at this issue. However, because we want to consider the findings of the sharia law review, I ask my noble friend to withdraw her amendment so that we have a chance to do that.

[Lord Kennedy of Southwark]

What is the timescale for the review that the Minister mentioned?

[Baroness Chisholm of Owlpen]

That is up to the review and we do not know yet.

[Baroness Berridge]

I am grateful for the support from noble Lords. The first point I want to make is that the disparity has been created by the law. A different definition of marriage was introduced into the civil protection order in order to deal with a real problem. My complaint is not that that should not have happened but that it created the disparity of treatment that my noble friend outlined because it was introduced without all of the consequences being thought through.

The law is about forced marriage—we did not call it “forced cohabitation”. In addition, it does not cover every arrangement that people are forced into: the CPS definition that I outlined says that you have to fall into a religious arrangement that is a binding agreement. By calling the arrangement “forced marriage” we gave those people coming to the criminal courts—at great risk—the expectation that their arrangement would, for that purpose, be treated in our law as a marriage. But we did not go on and fulfil our obligations to ensure that they were safeguarded financially and received the anonymity that they need to come forward. I am grateful that my noble friend has said that we will consider this further and I hope that there will be a meeting with interested parties.

I also want to state that I am very disappointed with this debate. I specifically did not put this into the sharia review, because it is about religious marriages. The law does not say that coercion and force come under that umbrella but suddenly we have entered that realm. This is about religious marriages, and I have come across instances of these issues in all kinds of religious settings. We need to be incredibly careful, on a day like today when British Muslims are upset by the news, about putting something that is about legal rights, technicalities and procedure under that banner. I was so careful to ensure that this could not be badged like this and I am disappointed that that is what has happened and that it has not been considered along with other issues. This is much wider than that. I beg leave to withdraw the amendment.

Policing and Crime Bill

Baroness Chisholm of Owlpen Excerpts

Committee: 5th sitting (Hansard): House of Lords
Wednesday 16th November 2016 Lords Chamber

[Baroness Deech (CB)]

My Lords, I did not put my name to this amendment because there were enough people already, but I used to teach family law, including the law of marriage. In this country, it is very easy to get married in a registry office or in a properly registered religious place. You can get married in a hotel if you want to or you can have a civil partnership. There are all sorts of official unions that you can make very easily, but the worst of all possible worlds is to be duped into believing that you are married in a religious ceremony and then find that you are not, because you lose any protection that English law gives you, while at the same time, stereotypically, your husband—if he is really your husband—can abandon you or take another wife.

This is not just a question of running parallel systems of law: it is about the protection of women and the need to preserve transparency and regularity in people’s marital status. All that is necessary is for more mosques to become registered as proper places of marriage, just in the way that synagogues are, and all would be resolved. I see no arguments against this amendment at all. It is overdue.

[Baroness Chisholm of Owlpen (Con)]

My Lords, I have listened carefully to the arguments made by the noble Baronesses, Lady Cox and Lady Deech, my noble friend Lady Buscombe—who made an excellent speech—and the noble Lord, Lord Alton. As has been said, the noble Baroness, Lady Cox, has done so much to raise in this House the problem of marriages that are not legally binding and that therefore do not carry the legal rights and responsibilities of a legally binding marriage. I recognise that she has spoken to many women in this situation and has sensitively presented their evidence to your Lordships this evening and on other occasions. There is particular cause for concern if one or both of the parties is unaware of their lack of rights or coerced into a marriage.

There is a strong tradition of religious marriages in England and Wales, with a long-established right that couples are able, in their place of worship, to enter into a marriage that is legally contracted, provided that the requirements of the law are met. Some people, for religious or other reasons, have preferred to enter into a marriage that is not capable of legal recognition. To make it illegal to conduct, or enter into, religious marriages that are not legally contracted is likely to be an overly complex solution and one that restricts personal choice. It is also unclear how many unregistered religious marriages would take place in breach of any change in legislation, since, by their nature, public notice of these marriages would not be given. I am sure that noble Lords appreciate the complexity of legislating in people’s private and religious lives.

We are conscious that there are complex issues behind religious marriages that are not legally valid, including where people use a religious ceremony to give recognition to an additional spouse, and so we do not consider that any one approach to Muslim or other faith communities can work in isolation. Of course, we are also aware of concerns that some women can be put under pressure to use the services of religious councils, including sharia councils, to arrange matters on the break-up of the relationship and that these women are not always treated equally when recommendations are made.

One of the issues that the noble Baroness highlighted was that of child custody, a matter raised by women to whom she has spoken. In fact, it is not the case that women have few or no rights in this matter, although they may well not be aware of their rights. In England and Wales, where there is any dispute between parents about arrangements for their children, either parent may apply to the family court for one or more types of order under the Children Act 1989. Most commonly, this will be a child arrangements order determining who a child is to live with or spend time with, and where and when this is to happen, referred to respectively as custody and access in many other jurisdictions. These proceedings are free-standing. This means that a parent is entitled to make an application to the court at any time, simply by virtue of being the parent of the child concerned and regardless of the status of their relationship with the other parent. There is no distinction for this purpose between legally married parents, unmarried parents, parents in a religious marriage that is not legally binding, parents who are otherwise cohabiting or, indeed, parents who are living apart.

On the issue of polygamy, noble Lords will be aware that polygamous marriages cannot be legally contracted in the UK. Attempting to enter into a polygamous marriage under the law of England and Wales is a criminal offence which carries a maximum sentence of seven years in prison. Nor is it possible for anyone domiciled in the United Kingdom to enter into a polygamous marriage abroad. Where a polygamous marriage is contracted within the law outside the United Kingdom between parties neither of whom is domiciled in the United Kingdom, it will be recognised by the court. The Government continue to support the law preventing polygamous marriages from being entered into in England and Wales.

The Law Commission has also given initial consideration to the issue of religious marriages that are not legally valid. It published its scoping study in December last year setting out the parameters of a potential review of the law concerning how and where people can marry in England and Wales, following consultation with a wide range of religious organisations and other interested parties. The scoping study concluded that this was one of a number of issues that might be ameliorated through a fairer and more coherent framework for marriage. The Law Commission also considered that offences relating to the celebration of marriage should be reviewed. It would not make sense for the Government to introduce a new criminal offence, such as that proposed by this amendment, without evidence of the scale and nature of the problem and without consideration of how the new offence would fit within existing marriage law.

The Government are carefully considering the Law Commission report and will respond in due course. We will also wish to consider the issue of unregistered religious marriages in light of the findings of the independent sharia review, launched in May by the current Prime Minister. The Government share the noble Baroness’s concerns and take them very seriously indeed. These concerns are central to the independent sharia review and involve the equalities, justice and faith and integration agendas across government. I thank the noble Baroness for raising again this important issue and the very real consequences for people’s lives.

My noble friend Lady Buscombe asked how many sharia councils there are across Europe. I do not have a number; I will have to go away, look into it further and write to my noble friend. I trust that the noble Baroness, Lady Cox, will understand the need to wait for the Government’s response to the Law Commission report and the sharia review and, on that basis, will withdraw her amendment.

[Baroness Cox]

My Lords, I am very grateful to all noble Lords who have contributed to this debate and those who have supported this amendment and made some very powerful additional arguments. I thank the Minister for the sympathy that is there in her response, but I feel some concern over the apparent lack of a sense of urgency about the need to address the real suffering that is going on at the present time. To wait for the outcomes of the reviews leaves these women in a terrible situation. The gap, the chasm, between the de facto realities and the de jure realities is one into which these women are falling and suffering in ways that should not be allowed in our country today. These issues are urgent: women are suffering on a large scale. I intend to take this debate back to my colleagues, with whom I am sharing these concerns, to consider the most appropriate ways forward. I am very grateful for what has been said tonight; we can learn from it ways to proceed to help the women suffering in these appalling situations. In the meantime, I beg leave to withdraw the amendment.

--- Later in debate ---

[Baroness Hamwee]

My Lords, we on these Benches support our noble friend Lady Brinton. I do not want to detain the Committee so will make just a couple of comments. When discussing matters such as trafficking and slavery, I often hear that these issues are where domestic violence was 20 years ago. It is very concerning to hear about the treatment of women—and men—who have suffered domestic violence in the way that my noble friend has described. That is not progress over the past 20 years.

There is another argument for my noble friend’s various amendments, which I do not think she mentioned; that is, obtaining the best evidence from victims who are also witnesses. These are very sensitive issues and one hears of very good practice by some police forces and some members of the judiciary. It is a question of spreading that good practice. There is an awful lot raised in these amendments, including the very delicate issue of ticketing for the judiciary dealing with certain cases. This is not the moment to go into that but the implications of the amendments need to be taken on board over a very wide area of practice. The Committee should be grateful to my noble friend and the noble Lord for ensuring that they are raised. It is a pity that, coming to the end of Committee, we are not able to do them the justice that we would all like to do them.

[Baroness Chisholm of Owlpen]

My Lords, I thank the noble Baroness, Lady Brinton, and other noble Lords who have spoken, for raising the important issue of victims’ rights.

It is crucial that the needs of victims of crime are given proper consideration at every stage of the criminal justice process. We published a revised Code of Practice for Victims of Crime, which came into force in November 2015. As a result, victims of all criminal offences, not just victims of more serious offences, are entitled to support under the code. The code provides victims with a range of entitlements, including information about their case, interpretation and translation, and for them to be treated in a respectful and professional manner without discrimination of any kind. Furthermore, the code requires police and other service providers to have a complaints procedure. If victims are dissatisfied with the outcome, they are able to refer their complaints to the Parliamentary and Health Service Ombudsman via their Member of Parliament.

It is essential that victims receive the best possible support to help them cope with and recover from what they have been through. We have a raft of arrangements in place which ensure that victims have access to a wide range of emotional, practical and specialist support determined by and tailored to their needs; wherever possible, this support is accessible locally. We are committed to ensuring that victims get the support they need and have protected the overall level of funding for victims across the spending review period, with over £95 million being provided in 2016-17 to fund crucial support services, including £7 million for the provision of support for victims of child sexual abuse, in recognition of increasing demand. Of the £95 million, we allocated over £67 million in grant funding to police and crime commissioners, who are using that funding to commission local services. The Justice Secretary has recently agreed to extend grant funding to all the nationally funded organisations for 2017-18 while we consider the current mixed model of commissioning national and local services.

We recognise the importance of training for professionals who work with victims. Organisations are responsible for ensuring the highest-quality training for their staff to ensure that victims receive the best possible service and support. However, we also recognise that more can be done. That is why we are working to place victims and witnesses at the heart of a justice system that works for everyone. We recently announced the national rollout of pre-trial cross-examination in 2017 to improve the support available for vulnerable witnesses. We are also investing close to £1 billion to reform and digitise our courts and tribunals. This will improve the experience for all court and tribunal users, including vulnerable victims and witnesses. Furthermore, we have committed to introduce further measures to strengthen the rights of victims of crime. It is important that we take the time to get this right, and we will announce our plans in due course.

Finally, the proposal for homicide reviews is also unnecessary. If the family of a victim has concerns about a closed homicide case, this can be looked at again under the Crown Prosecution Service’s recent guidance, Reviewing Previously Finalised Cases, to determine whether or not a review should be conducted.

Having had this opportunity to debate these important issues, and in the knowledge that the Government will be bringing forward proposals to strengthen the rights of victims, I ask the noble Baroness to withdraw her amendment.

[Baroness Brinton]

I thank the Minister for her reply, and the noble Lord, Lord Rosser, and my noble friend Lady Hamwee for their contributions. I am pleased that the Government will be looking at this but the difficulty is that much of what we have heard from the Minister does not address the soft issues that face the day-to-day running of any case in the criminal justice system, which are causing many of the problems. I wonder if the Minister would be prepared to meet over the next few weeks to talk through some of these issues. I see she is nodding. I am very grateful. With that, I beg leave to withdraw the amendment.

--- Later in debate ---

[Baroness Chisholm of Owlpen]

I am grateful to the noble Baroness, Lady Brinton, for raising the issue, and all noble Lords who have taken part.

The Government acknowledge that it is of great importance that ethnicity classifications of children and young people in the youth justice system are robust and accurate. Noble Lords will recall that the Prime Minister announced in August an audit of public services to reveal racial disparities and to help to end the injustices that many people experience. At present, youth custodial establishments and youth justice agencies, such as youth offending teams and the Youth Justice Board, are not required by legislation to use a particular system of ethnic monitoring; these amendments would change that.

In 2011, the National Offender Management Service adopted the 18+1 system on the centralised operational database used in prisons and young offender institutions for the management of offenders, following the change of classifications for ethnicity within the national census. However, it is the case that the new classification is not consistently used by secure children’s homes, secure training centres and youth offending teams. In principle, we agree with the aim of using the 18+1 classification, and the Government are ready to examine whether and how this could be done consistently across youth justice agencies and custodial establishments. I should point out, however, that such a change can be delivered through administrative means rather than through legislation. We feel that such an approach is preferable, given that to enshrine the 18+1 code in legislation would inhibit future flexibility in the event that the Office for National Statistics were to decide to change the 18+1 code system and introduce a new system of ethnicity classifications.

Although we support working towards consistency in terms of the data that we are recording, I hope that the noble Baroness would recognise that the universal adoption of the 18+1 code would require youth justice agencies to make a significant number of technical changes to a range of data systems, as the noble Lord, Lord Rosser, mentioned. This is because many existing IT and data collection systems are designed only to accommodate the 16+1 classification. For this reason, we believe the impact on agencies and custodial establishments must be explored and analysed and appropriate approaches identified.

I do not have costings at the moment, and will have to get back to the noble Lord on that point—although, interestingly enough, inspiration has appeared over my left shoulder. However, I am not sure that it is going to be that helpful. I have no information on the cost of the necessary IT changes. Clearly, they would need to be identified and factored into the work that would need to be done as youth justice agencies moved to the 18+1 system. I shall make inquiries as to whether further information is available and write to noble Lords. I am afraid that I do not have much more to add.

In conclusion, the noble Baroness has highlighted a valid issue. We support the broad aim of these amendments and will consider further the practical implications of embedding the 18+1 code system throughout the youth justice system. I hope that, on this basis, the noble Baroness would be content to withdraw her amendment.

[Baroness Brinton]

I thank all those who have contributed to this debate on this very important issue, including the noble Lord, Lord Alton, the noble Baroness, Lady Whitaker, the noble Baroness, Lady Bakewell of Hardington Mandeville, the noble Earl, Lord Attlee, and the noble Lord, Lord Rosser—and particularly the noble Lord, Lord Rosser, for highlighting in detail the issues that I felt that I did not have time to go into on what is happening with the IT system. I put it on record, too, that the noble Lord, Lord Ouseley, the noble Baroness, Lady Young of Old Scone, and the noble Lord, Lord Judd, wanted to speak in this debate but, because the date has moved on, were unable to be in their places.

I thank the Minister for her comments, although I was slightly startled by her opening statement about this new system of ethnicity. It is new only to the youth justice system. It is in use absolutely everywhere else. I am not intending to suggest that the Minister was saying anything else, but that is the whole problem—that there is a particular section of the criminal justice system that is not using the same databases as everybody else. We know from the example that the Minister quoted of the W3 Gypsy or Traveller code being added to P-NOMIS that the Irish chaplaincy has reported that many prisons are holding Traveller groups, appointing Traveller reps and holding Traveller history months—and, what is more, there is an increase in uptake of education by more than 10% among Traveller prisoners. That is a sign of real success. Surely young Gypsy and Traveller children who are in the system early on deserve that support the moment they come into the system. I hope that we can keep the doors open to discuss the matter as a matter of urgency. I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Kennedy of Southwark]

My Lords, Amendment 228C in the names of the noble Lords, Lord Wigley and Lord Ponsonby, and the noble Baroness, Lady Howe, seeks to insert a new clause into the Bill. As we have heard, its aim is to provide additional protection for victims or witnesses of a serious sexual offence, using the test of whether it is reasonable to assume that a disclosure of the person’s identity,

“would put the victim or witness at risk of further harm”.

It is right to include the rights of victims and witnesses in primary legislation where possible, and this is what the amendment seeks to do. Both victims and witnesses of serious offences can be very traumatised by what has happened to them or what they have witnessed. The disclosure of the name of the victim or witness to the person alleged to have committed the offence could put them at risk of further harm, as we have heard, or of fear of further harm. That, in itself, can cause additional stress and trauma for the victim or witness. Therefore, this amendment would place a specific duty on the police, when considering releasing the names of victims or witnesses to the accused person, to take into account the matters listed in new subsections (2) and (3) of the proposed new clause. That would be a sensible and welcome move, and I hope the noble Baroness will respond positively to the amendment.

I fully endorse the comments of all those who have spoken to the amendment. I was particularly surprised to hear my noble friends Lord Ponsonby and Lady Cohen say that the police have no idea what the policy is in this area. I am amazed by that. I certainly fully endorse the amendment.

[Baroness Chisholm of Owlpen]

My Lords, as the noble Lord, Lord Wigley, explained, this amendment seeks to grant victims or witnesses of sexual or violent crime anonymity in cases where it is reasonable to assume that disclosure would put them at risk of further harm. The noble Lord has indicated that he is particularly concerned with cases of so-called “stranger rape”.

I say from the outset that I agree wholeheartedly that the criminal justice system must support and protect victims and witnesses, particularly victims of sexual offences who are especially vulnerable. There are already a number of means whereby those at risk of further harm can be safeguarded and I will briefly itemise these in a moment but, before doing so, I must point to a central difficulty with the noble Lord’s amendment. The overarching principle of our criminal justice system is that the defendant must be given a fair trial. This is clearly stated in Article 6 of the European Convention on Human Rights. Fundamental to this is the right of the accused to be informed promptly, in a language which he understands, and in detail, of the nature and cause of the accusation against him. I am sure the noble Lord accepts that the accused cannot be expected to defend himself properly at trial if he does not even know who is accusing him of the alleged crime. This amendment would fundamentally undermine that cornerstone of our justice system.

That is not to say that there should not be crucial safeguards in place for victims and witnesses who have had the grave misfortune to experience violent or sexual crimes. As I have indicated, there are already multiple mechanisms the police and courts can employ to protect victims. Where necessary for the purpose of the investigation, the police can seek to detain the accused for up to 96 hours pending charge and seek to have him or her remanded in custody post-charge. If it is not possible to bring charges within the time limits on pre-charge detention, the suspect can be bailed subject to conditions which prohibit contact with the victim.

There are also established provisions in legislation for witness protection programmes and the provision of special measures during criminal proceedings; for example, a complainant can give evidence via a live link or behind a screen.

There is already provision for anonymity of complainants or witnesses, to be used as an exceptional measure of last practicable resort. A witness anonymity order can be granted by the court if it is satisfied that their identification would adversely affect the quality of evidence given by them, or their level of co-operation with the prosecution. The Director of Public Prosecution’s guidance on witness anonymity is clear that where the prosecution cannot present its case in a way that allows the defendant to defend themselves, it is under a duty to stop the case, no matter how serious the allegations may be. Hence, this must be very carefully considered when deciding whether to grant victim or witness anonymity—fair, equal and open justice for all must be the imperative.

While I have every sympathy for the noble Lord’s objective of protecting vulnerable victims and witnesses, I hope he will accept that the blanket approach provided for in his amendment is fundamentally at odds with our system of justice and the right of the accused to a fair trial. It is important to remember that the accused is just that: accused. He or she is not convicted, and is presumed innocent until proved guilty. This amendment arguably assumes guilt and undermines the protections and safeguards against miscarriages of justice of which this country is justly proud. Moreover, there are already a number of mechanisms available by which victims and witnesses can be supported through the criminal justice process. Given these points, I hope that the noble Lord will be content to withdraw his amendment.

--- Later in debate ---

[Baroness Finlay of Llandaff (CB)]

My Lords, I thank the Minister and her officials for their time and help over the issue of this amendment. I declare my interest as independent chair of the National Mental Capacity Forum, and it is in that role that I have heard repeatedly about a problem relating to people who die when subject to deprivation of liberty safeguards. This new clause amends the meaning of state detention in Section 48 of the Coroners and Justice Act 2009 to correct the problem that I will now explain. I want to explain first how the amendment works and then some of the background as to why it really is needed.

The amendment removes the duty on coroners to conduct an inquest in all cases where the deceased had an authorisation for the deprivation of their liberty in place either under deprivation of liberty safeguards or a Court of Protection order or because the deprivation of liberty was otherwise authorised by the Mental Capacity Act 2005.

Subsections (2) and (3) of the new clause amend Section 48 of the Mental Capacity Act 2005 to provide a new definition of state detention. To do this, there is a new subsection inserted into the Coroners and Justice Act 2009 to provide that a person is not considered to be under state detention for the purposes of that Act when they are deprived of their liberty under the relevant sections of the Mental Capacity Act 2005. This covers the deprivation of liberty safeguards, which can be from a Court of Protection order, from a DoLS authorisation or, where the deprivation of liberty was urgently required, pending a decision by the Court of Protection on the authority to restrict the person’s liberty. The second amendment makes a consequential change to the Long Title of the Bill.

Let me explain why this new clause is needed. After the Cheshire West judgment, the number of DoLS applications has risen enormously. This was the subject of a debate in this House on 16 March 2015. Prior to the Cheshire West judgment, in 2012-13, there were 11,887 DoLS. In 2014-15, 122,775 individuals had an active DoLS application either granted or in process. That is more than a tenfold increase in the number of DoLS. Some of these people were seriously ill and some died. In 2015, there were 7,183 such deaths. The vast majority of those were expected, anticipated and accepted by the family and those responsible for care. These were not deaths that came as a surprise to anyone. When that family was then told that the death must be referred to the coroner for an inquest they were often shocked and worried, as if there were some sort of accusation against them or others. They could not progress with their grieving and arrange the funeral, as they then had to wait for the inquest.

In 2015 the average time for inquests was 20 weeks, although coroners tried very hard to ensure that deaths under DoLS, when clearly of natural causes, were dealt with more quickly. To put the numbers in context, of the more than 7,000 deaths under DoLS, 6,760—or 94%—were found at inquests to be natural.

The distress to the bereaved has become a common cause of complaint to the Department of Health. In addition, it is not a good use of coroners, who should be investigating deaths where there is any suspicion whatever. Indeed, I remind the House that the Ministry of Justice’s Guide to Coroner Services states:

“Registrars of births and deaths, doctors or the police must report deaths to a coroner in certain circumstances. These include where it appears that: no doctor saw the deceased during his or her last illness; although a doctor attended the deceased during the last illness, the doctor is not able or available, for any reason, to certify the death; the cause of death is unknown; the death occurred during an operation or before recovery from the effects of an anaesthetic; the death occurred at work or was due to industrial disease or poisoning; the death was sudden and unexplained; the death was unnatural”—

so that includes all suspected suicides—

“the death was due to violence or neglect; the death was in other suspicious circumstances; or the death occurred in prison, police custody or another type of state detention”.

The Ministry of Justice document goes on to say:

“If you believe that a death of this kind has not been reported to the coroner, you may report it yourself”.

In other words, relatives who have any concern can themselves report to the coroner. It goes on to say:

“You should do this as soon as possible and before the funeral. The coroner will then inform you of the action he or she proposes to take”.

Nothing in the amendment removes the obligations to inform the coroner if there is any suspicion whatever around a death. The amendment is to remove the mandatory requirement to hold an inquest where the deceased was deprived of their liberty under all relevant sections of the Mental Capacity Act—or, indeed, where the deprivation of liberty was to provide care to them.

Under the Mental Capacity Act a person who lacks capacity may be detained in circumstances which amount to deprivation of liberty. No detention amounting to deprivation of liberty may be permitted without lawful authorisation, because it would otherwise constitute false imprisonment. The Mental Capacity Act provide safeguards known as DoLS and Court of Protection orders to be made depriving a person of liberty for their care. It also allows for the deprivation of liberty of a person for the purpose of giving life-sustaining treatment only where a decision of the court is pending.

I want to address a concern that has been raised with me in relation to anyone who dies under the care of a mental health trust. A suicide or an unexpected or a sudden death must always be referred to the coroner, but I would expect there to be a routine review of any death in a mental health trust or similar organisation. Such a review should be available to the Care Quality Commission inspectors and I would expect the inspectors to ask about the number of deaths that had occurred in people subject to a deprivation of liberty safeguard application or authorisation. They should look in depth at the quality of the review of care that had taken place. Additionally, anyone who has concerns at any stage should raise those concerns, whether through whistleblowing or through the complaints process.

Complaints and how they are handled also form part of CQC inspections and I believe that such searching questions are far more likely to detect poor care than relying on a referral to the coroner, who is only looking at one instance and cannot see how care is delivered across a whole organisation. The recent incidents of poor care of those with learning difficulties that have come to light are certainly alerting inspectors that they must be more rigorous in their inquiries than before. To summarise, I hope that this amendment will correct an anomaly that has caused more than 6,500 bereaved families unnecessary distress in the last year alone. I beg to move.

[Baroness Chisholm of Owlpen]

My Lords, I am grateful to the noble Baroness, Lady Finlay, for this amendment. The Government are pleased to be able to offer our support for this amendment, which will minimise the stress on bereaved families at a very difficult time for them. The amendment will fully address the concerns that no family, having watched and comforted their loved one through his or her final days, should then be unnecessarily subject to the anxiety and confusion of having their death investigated by a coroner. I thank the noble Baroness for raising the profile of this important issue and for her valuable input, which the Government very much welcome and support. I commend her amendment to the Committee.

Amendment 228F agreed.

--- Later in debate ---

Moved by

[Baroness Chisholm of Owlpen]

231B: Clause 149, page 169, line 38, leave out “and 83” and insert “, 83 and (Energy Act 2013 (c. 32))”

[Baroness Chisholm of Owlpen]

My Lords, these are technical and consequential amendments to the Extent clause and I beg to move.

Amendment 231B agreed.

Moved by

[Baroness Chisholm of Owlpen]

232: Clause 149, page 170, line 3, leave out paragraph (g)

Policing and Crime Bill

Baroness Chisholm of Owlpen Excerpts

Report: 1st sitting: House of Lords
Wednesday 30th November 2016 Lords Chamber

[Baroness Chisholm of Owlpen (Con)]

My Lords, Amendment 1, moved by the noble Lord, Lord Paddick, seeks to limit the duty to collaborate so that police bodies would be required to collaborate with fire and rescue services only where they share coterminous boundaries. I see no reason why collaboration should be limited by geographical borders. The Government require there to be coterminous boundaries where a change of governance for fire is proposed, as the core approach of those provisions is to introduce greater democratic accountability by giving a directly elected individual responsibility for both services, with a clear mandate from the electorate in their area. However, collaboration between two bodies does not invoke such issues. Further, the duty, as currently drafted, would ensure that areas where the services are not coterminous, such as Devon and Cornwall, can still maximise the benefits outside a governance change if there is no appetite to adjust boundaries locally.

As the noble Lord, Lord Paddick, mentioned, existing examples of collaborative working between police forces show the benefits that closer working can provide, regardless of geographical proximity. For instance, Cheshire Police collaborates with Northamptonshire and Nottingham police forces on back-office functions, including payroll, accounting, purchasing and HR, via the Multi-Force Shared Service. West Midlands Police led the largest ever police and emergency service collaborative procurement exercise, which includes 26 territorial forces, two non-territorial forces and five fire and rescue services. Together, the services will buy 3,000 vehicles over the next two years, with forecasted savings of up to £7 million over the period of the contracts.

Government Amendments 2 and 3 respond to points raised in Committee by the noble Lord, Lord Rosser, the noble and learned Lord, Lord Hope of Craighead, and the noble Baroness, Lady Hamwee, in respect of collaboration agreements. Amendment 2 explicitly provides that no relevant emergency service will be required to enter into a collaboration agreement where it would have an adverse effect on public safety. This has been the Government’s policy intention since conception of the Bill. Indeed, as I set out in Committee, the Government believe that the impact on public safety will be assessed by an emergency service whenever considering the effect of a proposed collaboration on its efficiency or effectiveness. None the less, for the avoidance of any doubt, this amendment makes it explicit in the Bill that no relevant emergency service will be required to enter into a collaboration agreement that would negatively impact public safety.

Amendment 3 clarifies the process for varying a collaboration agreement. We agree that parties to an agreement should also be able to straightforwardly vary terms of an existing agreement, where all parties are in agreement. Parties will also still be able to replace an existing agreement with a new agreement, again with the consent of the parties concerned.

I hope that, having heard my explanation, the noble Lord will be content to support the government amendments in this group and withdraw Amendment 1.

[Lord Paddick]

In my opening remarks, I welcomed the government amendments and suggested that we would support them. The examples that the noble Baroness gave of collaboration between police forces were to do with requisition and back-office functions. The real issues arise where there is collaboration on operational issues—for example, the sharing of buildings, and particularly where the Government want to encourage police and crime commissioners to take over the running of fire and rescue authorities, as we will hear later this afternoon. That is where the coterminosity issue is most stark. Therefore, while I accept that for requisition and back-office functions the forces do not need to be geographically co-located, real problems can arise on the operational front in these circumstances, and if the PCC has to take over. However, I will consider carefully what the noble Baroness has said and, at this stage, beg leave to withdraw the amendment.

--- Later in debate ---

[Baroness Chisholm of Owlpen]

My Lords, Clause 7 enables police and crime commissioners to request to be represented on fire and rescue authorities within their police areas where they do not take responsibility for the governance of the fire and rescue service. This is what we have described as the representation model. Where a fire and rescue authority accepts such a request, we have set out that PCCs will be treated as if they were a member of the authority for the purposes of bringing agenda items, receiving papers and so on, and have full voting rights to ensure that they can take part in the business of the fire and rescue authority in a meaningful and effective way.

The noble Lord’s amendments seek to remove these provisions, which would be a great shame, as we want the PCC’s representation to be meaningful and on an equal footing with existing members of the FRA. To deny PCCs the ability to vote would reduce their scope for influence and I fear that opportunities for fostering greater collaboration would be missed. As my noble friend Lady Williams explained in Committee, in response to a group of similar amendments, we want police and crime commissioners and fire and rescue authorities to consider the representation model as a viable option for promoting greater collaboration between the two services. These amendments would hinder that.

The amendments would also remove the necessity for a fire and rescue authority to publish its decision and reasoning in considering the PCC’s request for membership. I am concerned that to do so would remove transparency and accountability from the process. These provisions enable PCCs to seek representation where they wish to do so, while respecting local fire governance arrangements. The final decision on representation rests with the fire and rescue authority, although we fully expect that in the majority of instances the fire and rescue authority would accept the PCC’s request and, if it did not, its reasons should be made clear to both the PCC and the public. This ensures that the process is fully transparent and open to effective scrutiny.

The provisions in the Bill allow for the representation model to be considered as an opportunity to foster greater collaboration outside of pursuing other governance models. I hope I have been able to persuade the noble Lord of the merits of the approach taken in the Bill and that he will be content to withdraw his amendment.

[Lord Paddick]

I am grateful to the Minister. I am still struggling to understand why a police and crime commissioner, who is elected on the basis of a manifesto to do with policing, should have full voting rights on a fire and rescue authority. I am not sure that “It would be a great shame” is a particularly powerful argument against my proposal. The Minister said that the police and crime commissioner should be on an equal footing with other members of the fire and rescue authority but did not actually say why. Yes, the final decision rests with the fire and rescue authority but, given the fact that this is in legislation, it would be difficult, certainly following the Minister’s remarks, for fire and rescue authorities to resist a move by a police and crime commissioner to take those voting rights. Greater collaboration surely does not necessarily depend on the police and crime commissioner having a vote on the fire and rescue authority. None the less, I beg leave to withdraw the amendment.

--- Later in debate ---

Moved by

[Baroness Chisholm of Owlpen]

43: After Clause 11, insert the following new Clause—
“Fire Safety inspections
(1) The Regulatory Reform (Fire Safety) Order 2005 (S.I. 2005/1541) is amended as follows.(2) In article 2 (interpretation), in the definition of “fire inspector”—(a) after “inspector”” insert “, in relation to Wales,”;(b) for “section 28” substitute “section 28(1)”.(3) In article 27 (powers of inspectors), after paragraph (4) insert—“(5) This article applies to a person authorised by the Secretary of State under article 25(1)(e) in relation to premises in England as it applies to an inspector; and article 32(2)(d) to (f), with the necessary modifications, applies accordingly.”(4) In article 28 (exercise on behalf of fire inspectors etc of their powers by officers of fire brigades)—(a) in paragraph (1)—(i) omit “, or any other person authorised by the Secretary of State under article 25(e),”;(ii) for “and (3)” substitute “to (4)”;(b) after paragraph (1) insert—“(1A) The powers conferred by article 27 on an authorised person (by virtue of paragraph (5) of that article) are also exercisable by an employee of a fire and rescue authority in England when authorised in writing by such an authorised person for the purpose of reporting to him or her on any matter falling within the authorised person’s functions under this Order; and articles 27(2) to (4) and 32(2)(d) to (f), with the necessary modifications, apply accordingly.”;(c) in paragraph (2), for “, or other person authorised by the Secretary of State,” substitute “or authorised person”;(d) after paragraph (2) insert—“(3) In this article, “authorised person” means a person authorised by the Secretary of State under article 25(1)(e) in relation to premises in England.””

--- Later in debate ---

[Baroness Chisholm of Owlpen]

My Lords, Amendments 44, 45 and 105 are essentially technical amendments to ensure that the strengthened powers of an inspector of Her Majesty’s Inspectorate of Constabulary and the powers of an inspector of fire and rescue authorities in England, as provided for in the Bill, work as intended.

Both inspectors have powers to obtain information and to access premises of the relevant organisation which they are inspecting and of persons providing services for that organisation. The amendments ensure that any person providing services or carrying out any of the activities of either organisation by virtue of an enactment, including where there is no contractual agreement, come within the inspection framework. This would, for example, cover police or ambulance staff who are undertaking fire functions as part of a local agreement—an approach which is growing across many police forces and fire and rescue authorities. These amendments will ensure that both police and English fire and rescue inspectors have sufficient powers covering all individuals who are fulfilling an activity which needs to be inspected. The powers to access premises and require information are long-standing and widely used, with established safeguards that will apply to these amendments.

Amendment 43 concerns the enforcement of fire safety in Crown-owned or Crown-occupied premises for the purpose of ensuring compliance with the Regulatory Reform (Fire Safety) Order 2005. Presently, the 2005 order defines an enforcement authority with reference to inspectors under Section 28 of the Fire and Rescue Services Act 2004. In the light of the fire inspection provisions in the Bill, it is now desirable to break the link between the inspection of fire and rescue authorities by an English inspector appointed under the amended Section 28 of the 2004 Act and enforcement of fire safety in Crown-owned and Crown-occupied premises under the 2005 order.

We do not consider it appropriate for those charged with responsibility for inspecting the efficiency and effectiveness of fire and rescue authorities in England under Section 28 of the 2004 Act, as amended, to have any powers in relation to enforcing fire safety provisions in Crown-owned or Crown-occupied premises for the purpose of ensuring compliance with the 2005 order. The skill set is entirely different, with fire safety enforcement officers requiring a high level of technical competence in building construction and fire safety management.

However, to deliver this objective we need to amend the 2005 order to ensure that any persons authorised, under Article 25(1)(e) of the 2005 order, by the Secretary of State to enforce the provisions of the 2005 order in Crown-owned and Crown-occupied premises are able to access the powers of enforcement that are necessary to enable them to perform their function effectively.

Without this amendment, any persons subsequently authorised to enforce the provisions in Crown-owned or Crown-occupied premises who were not also appointed as English fire inspectors or assistant inspectors would not, in law, be able to perform their function. I beg to move.

Amendment 43 agreed.

--- Later in debate ---

Moved by

[Baroness Chisholm of Owlpen]

49: Clause 27, page 41, leave out lines 9 to 19

[Baroness Chisholm of Owlpen]

My Lords, the Government are committed to ensuring that those working for the police have the confidence to come forward to report concerns of malpractice and misconduct within the service. Clause 27 inserts new Part 2B and new Schedule 3A into the Police Reform Act 2002. This will provide the Independent Police Complaints Commission with a new power to carry out independent whistleblowing investigations. It gives police officers and staff a new route to raise their concerns directly with the IPCC. As a result, it will give police officers and staff a greater level of assurance around discretion and objectivity by strengthening the protections for whistleblowers, including anonymity.

Amendments 49 and 50 respond to points raised in Committee by the noble Lords, Lord Paddick and Lord Kennedy. The amendments will provide greater clarity about when a whistleblowing investigation can be considered by the IPCC. The amendments modify the definition of a whistleblower in two ways. The first modification is to enable whistleblowers to raise concerns about matters which occurred before they joined the police. The second modification will remove the need for the IPCC to consider whether to start a new whistleblowing investigation where it is already conducting an investigation under Part 2 of the Police Reform Act 2002, or where there is an ongoing whistleblowing investigation.

There will also be no requirement for the IPCC to consider whether to open a new investigation when the concern raised is already being dealt with as a super-complaint. These modifications will provide further clarity on the definition of a whistleblower, ensuring that the new Part 2B provisions will not interfere with the progress of these existing investigations. This will also support the IPCC to effectively implement its duties under the new provisions.

Amendments 51, 55, 63, 64 and 69 are technical amendments to ensure that, as with concerns which involve conduct matters, where the IPCC identifies a concern as relating to a “death or serious injury” matter as defined in Part 2 of the 2002 Act, the matter must be handled under that part. In such circumstances, the whistleblower’s identity will continue to be protected by modifications to Schedule 3 to the 2002 Act specified in regulations. I beg to move.

[Lord Paddick]

My Lords, I am very grateful to the Minister and to the Government for listening to the concerns we raised around whistleblowing in Committee. We certainly support the government amendments in this group.

--- Later in debate ---

Moved by

[Baroness Chisholm of Owlpen]

50: Clause 27, page 41, line 26, at end insert—
“(3A) For the purposes of this Part, a person is a “whistle-blower” if—(a) the person is, or was at any time, under the direction and control of a chief officer of police,(b) the person raises a concern that is about a police force or a person serving with the police,(c) the matter to which the concern relates is not—(i) about the conditions of service of persons serving with the police, or(ii) a matter that is, or could be, the subject of a complaint by the person under Part 2, and (d) at the time the Commission first becomes aware of the concern, the matter to which it relates is not—(i) under investigation under the direction of the Commission in accordance with paragraph 18 of Schedule 3,(ii) under investigation by the Commission in accordance with paragraph 19 of that Schedule,(iii) being dealt with as a complaint under section 29A under regulations under section 29C (regulations about super-complaints), or(iv) under investigation under this Part.”

--- Later in debate ---

Moved by

[Baroness Chisholm of Owlpen]

54: Schedule 6, page 278, line 29, leave out “15(5)” and insert “15(5B)”

--- Later in debate ---

Moved by

[Baroness Chisholm of Owlpen]

56: Clause 32, page 54, line 24, after “the” insert “Independent”

[Baroness Chisholm of Owlpen]

My Lords, I hope that this, too, will be good news for your Lordships. This Government’s policing reforms have strengthened the role of the Independent Police Complaints Commission to ensure that it can fulfil its crucial function as a strong police watchdog. The Bill will further enhance the IPCC’s powers and independence. It is important that the organisation can carry out its enhanced role efficiently and effectively and the Bill therefore also provides for the reform of the IPCC’s corporate structure and for it to be renamed the Office for Police Conduct.

In Committee the noble Lord, Lord Rosser, tabled an amendment to include “Independent” in the new name. A number of noble Lords spoke in support of that amendment, highlighting the value of the word in securing public confidence that the organisation is not part of the police. My noble friend Lady Williams of Trafford agreed to reflect on the points that noble Lords made so well in the debate.

The Government remain of the view that the reformed IPCC needs to command public trust, and demonstrate its impartiality and independence, through the quality of its work. The IPCC is independent, and the reformed organisation will continue to be independent. However, the Government also recognise the argument that although the legislation provides for the organisation’s independence from the police, it is important to signal this in its title as well. These amendments therefore provide for “Independent” to be included in the reformed IPCC’s new name, with the effect that it will be called the Independent Office for Police Conduct. I beg to move.

--- Later in debate ---

Moved by

[Baroness Chisholm of Owlpen]

57: Clause 32, page 54, line 28, after “The” insert “Independent”

--- Later in debate ---

[Baroness Jolly (LD)]

My Lords, the purpose of this amendment is to enable service men and women to make complaints about their service police to the IPCC rather than to the service police—the Royal Military Police, the Royal Air Force Police or the Royal Navy Police. I submitted this amendment after a really interesting and valuable meeting that I had with the Minister and her officials, which helped my thinking and allows me to ask for clarification about the service police and the IPCC. I am grateful to her for her time.

The Minister and I discussed the issues of the competence, culture and trust of or in the service police and the capacity of the IPCC to take over some of its functions. I remind noble Lords that Her Majesty’s Inspectorate of Constabulary—HMIC—recommended that oversight of the Royal Military Police, the Royal Air Force Police and the Royal Navy Police should be brought within the competence of the IPCC. I understand that, at the moment, the IPCC is undergoing some change and is not able or willing to look at meeting the amendment’s desired outcome in the immediate future. I also understand that the service police are aware of their shortcomings and are working to address them.

Can the Minister give some indication of the Government’s current thinking about the future, and about which milestones might indicate progress? If there are any recent pronouncements from the MoD on this issue, that would also be helpful. Our service men and women deserve a process for complaints against their service police that is modern, run professionally, fit for purpose and future-proofed. I hope that the Minister can help, and I beg to move.

[Baroness Chisholm of Owlpen]

My Lords, I would like to reassure the noble Baroness, Lady Jolly, that the Government and the service police are fully supportive of the need for independent oversight of the service police. There is already statutory independent oversight of the complaints made against the service police, where those complaints are made through the service complaints process. That process is overseen by the independent Service Complaints Ombudsman and is available to all serving personnel. Veterans and other civilians are not able to use that process and rely solely on the service police complaints procedures, which do not currently have independent oversight. However, I should mention that, since the recommendation in Her Majesty’s Inspectorate of Constabulary’s 2014 report, the service police forces have adopted a tri-service investigations protocol, which supplements their existing complaints procedure and provides for another force to investigate certain complaints where there could be a conflict of interest or allegations of criminal activity.

There is clearly further work to do on a mechanism for introducing independent oversight into complaints made against the service police. There are a number of options for doing this, including oversight by an existing body or setting up a separate new body to provide it, but a number of logistical and jurisdictional issues need to be addressed. For example, incidents requiring investigation might arise in any part of the UK or indeed anywhere in the world, including dangerous operational theatres, and clearly we would want our oversight arrangements to cater for those occasions.

The Government are therefore considering interim arrangements that will introduce independent oversight of complaints against the service police from veterans and non-service personnel, this being the gap which currently exists. We expect to be able to announce further information about this shortly. The Government remain committed to implementing a single mechanism that will provide for the independent oversight of all complaints against the service police. This aspiration is shared by each of the service police provost marshals, and we intend to update the House on progress in the first half of next year.

On a broader note, I should mention that each of the service police forces has done much in recent years to forge a culture within its organisation that aims to promote faith in its integrity and professionalism within the Armed Forces, military community and beyond. They have each implemented codes of conduct that highlight the expectations placed upon service police personnel both on and off duty. These are akin to those produced by the College of Policing and support the single service’s values and standards and leadership codes, which apply to all service personnel. In addition, all members of the service police are now required to swear an oath which declares that they will always act with fairness, integrity, diligence and impartiality. The Government are determined to ensure that, in both the short term and the long term, there can be independent scrutiny of any instances where those values are called into question. On this basis, I ask the noble Baroness to withdraw her amendment.

[Baroness Jolly]

My Lords, I thank the Minister for the clarification and for the meeting. I look forward to recommendations coming out very soon, as she said. In the meantime, I am happy to beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Rosser]

My Lords, I do not wish to repeat all that has been said, but I would like to raise one or two points. The first refers to the statistics on the use of Section 136 of the Mental Health Act in 2015 and 2016 to which the noble Baroness, Lady Walmsley, has already referred. They show some surprising discrepancies between police force areas on Section 136 cases. For example, Hertfordshire and Merseyside are the two police force areas in which there has been zero use of police cells under Section 136. However, in Lincolnshire, police cells were used under the Section 136 powers on 173 occasions during 2015-16, in the context of a total usage under Section 136 on just 368 occasions. That is a staggeringly high percentage. Equally, one could go through the whole list and point to considerable discrepancies. Surprisingly, although one might have thought that the figure for the Metropolitan Police would be pretty high, the number of occasions in 2015-16 on which people were placed in police cells under the powers in Section 136 was apparently 17, in the context of a total figure of 3,693.

I cannot understand why we have these discrepancies, and I would appreciate it if the Minister commented on that. Is it really about suitable places being available in these areas, or a lack of co-ordination or willpower, or a lack of priority being given to avoiding the need to use police cells? Some response from the Government on that point would be extremely helpful, and extremely interesting.

I want to refer to the letter of 25 November 2016 that the noble Baroness, Lady Chisholm of Owlpen, sent to the noble Baroness, Lady Walmsley, to which the latter has already referred. It would be helpful—to me, at least—to have some clarification of what parts of the letter mean. It states:

“It is … our intention that the regulations make clear that certain situations, in and of themselves, do not justify use of a police station, for example, because there is no health based place of safety available at that time. Our expectation, which will be reinforced in the guidance that will support the regulations, is that there should be local plans in place to deal with this and other contingencies”.

What does the reference to,

“local plans in place to deal with this and other contingencies”,

mean? Does that mean that places have to be provided, or something else? The letter continues:

“A police station will only be used as a place of safety if it is considered to be the best and safest way to manage a particular individual in the interests of all concerned”.

But what happens if no health-based place of safety is available at that time? Does the sentence I quoted mean that in that situation, if no such place of safety is available, a police cell can be used? Other references in the letter suggest that that would not be the case, and that, in effect, a police cell could be used only when the individual was considered to be a danger to themselves or to others. Again, it would be very helpful to have some clarification.

I may not have heard the noble Baroness, Lady Walmsley, properly—I am afraid I am all too good at that—but I thought, and I may be doing her a disservice, that she said that the Government had indicated that they intend to reduce to zero the use of police cells. If so, may I have confirmation of that, because I do not think the letter of 25 November 2016 says that? Of course, the statement:

“A police station will only be used as a place of safety if it is considered to be the best and safest way to manage a particular individual in the interests of all concerned”,

still leaves open the possibility of using a police cell, and would not be consistent with the Government’s intention, if it is their intention, in the long term—one hopes in rather less than the long term—to reduce to zero the use of police cells.

I would like to raise two or three other points related to treating people in a situation of mental health crisis. Clause 80 would reduce the permitted period of detention in any place of safety—not just police cells—from 72 hours to 24 hours. Of course, one could argue that 24 hours is still quite a lengthy period for individuals to be detained prior to an assessment of their mental health, wherever they are detained. The proposals do provide for a further 12-hour extension of that detention period. As has already been pointed out, individuals with urgent mental health needs have just as much right to acute and emergency health care as anyone else. If any other forms of emergency health care were provided within a window of only 24 to 36 hours, it would probably provoke some highly adverse comment. Did the Government consider bringing the time limit down further, to 12 hours, say, with the possibility of extending detention by up to a further 12 hours on the authority of, for example, the registered medical practitioner responsible for the person in question’s examination under the Mental Health Act?

I want also to refer to the position—or lack of it—of independent mental health advocates. As I understand it, subject to other powers in the Mental Health Act, they are available to provide independent advocacy and advice to individuals such as those liable to psychiatric detention, or those who have received community treatment orders. Among other important functions, independent mental health advocates help individuals to obtain information about their detention or treatment, and support them in understanding what is happening to them. But as I understand it, individuals detained under Sections 135 and 136 of the Mental Health Act do not have a right to an independent mental health advocate. Surely, detention in any place of safety is a feature of the mental health regime, and one in which independent advocacy, advice and assistance are desirable, if not required. Why is it that individuals convicted of no crime but detained for their own safety can have no access to the independent advocacy and assistance to which they would be entitled during other mental health interventions but not under Sections 135 and 136? A related point is that the PACE codes of practice lay down a requirement to have access to an appropriate adult, but on too many occasions, this does not happen as the code of practice indicates it should.

Finally, for the purposes of the police and criminal evidence arrangements, a police intervention under Sections 135 and 136 is treated as an arrest, and any police involvement in taking a person to a place of safety generates information held by police as to that person’s mental health history, including the recording of a police intervention by way of Sections 135 or 136. The Disclosure and Barring Service provides a system whereby an individual’s criminal record may be checked and, where relevant, disclosed to prospective employers. Ordinary DBS checks result in cautions and convictions being revealed, where permitted, but under enhanced DBS checks, other information held by the police as to their involvement with that individual may be disclosed as well, where the officer responsible reasonably believes it to be relevant and that it ought to be disclosed. Police will hold information as to any arrest they conduct and any involvement they have in taking a person to a place of safety under Section 135 or Section 136. The mere fact of police intervention in response to a person’s mental health crisis is therefore liable to be disclosed. It could therefore have quite significant adverse consequences when it comes to seeking employment.

I understand that since August last year new guidelines have been enforced, requiring constables to disclose as part of such checks only records they reasonably believe to be relevant. There is guidance given relating to Section 135 that indicates that the fact of detention under Sections 135(1) and 136 of the Mental Health Act is unlikely in itself to be sufficient to justify disclosure. Sections 135 and 136 provide the police with powers to remove a person to a place of safety when the person is believed to be suffering from a mental disorder and in need of care or control. Such a detention under the Mental Health Act does not constitute a criminal investigation and should therefore be treated with great caution when considering relevance for disclosure. But, of course, police officers are not mental health professionals. There is nothing to require them to seek the advice of such professionals before making a decision as to the relevance of a person’s mental health.

There is surely a real danger that the police will continue to disclose mental health records. Where a person is processed through the criminal justice system, information relevant to criminal matters may be disclosed as part of an enhanced EBS check. However, the disclosure of an individual’s medical history is an entirely different matter. Will the Government impose a ban on the disclosure of Sections 135 and 136 detentions under criminal records checks? I hope the response to the points I have raised, if not available tonight, might be available subsequently.

[Baroness Chisholm of Owlpen]

My Lords, I am grateful to the noble Baroness, Lady Walmsley, for giving your Lordships’ House a further opportunity to debate the continued use of police stations as places of safety for adults. I think we all agree on the importance of taking someone experiencing a mental health crisis to a place of safety that will best meet their particular needs. We can also agree that, almost always, that should not be a police station, irrespective of the person’s age. But where we have not previously quite agreed is on removing outright the option of using a police station for an adult in those very rare cases where it is the judgment of the police officer on the scene that a police station is the safest place—at least initially—not just for the patient but for the public, health professionals or anyone else at risk from the extreme behaviour of the individual.

Let me make it plain that while the Government’s position is that it would be wrong and potentially very dangerous to ban outright the use of police stations as places of safety for adults, we have no intention of leaving police officers without support in making the judgment that a particular situation is of such severity that this would be the correct response. The regulation-making powers in Clause 79 will be used to set out factors relevant to the decision on whether circumstances merit the use of a police station. We envisage that these will cover a range of issues, such as how dangerous an individual’s behaviour is and how serious a risk of harm to themselves or others they represent. We will also look to include provisions to give the officer the opportunity to consult with mental health professionals if it is safe and practicable to do so.

Equally importantly, if the decision is made to use a police station, we must make sure that the individual receives all the appropriate healthcare and treatment they need while they are there. This, too, will be covered in the planned regulations. The regulations will further provide for a regular review of the individual’s condition so that they can be moved to a more appropriate place of safety if the circumstances change—for example, if their behaviour has moderated and the move is in their best interest and can be achieved without delaying the mental health assessment.

I expect that, once these provisions come into force, we will see a further substantial reduction in the use of police stations as a place of safety for adults. But it would be wrong, in our view, to assume that we can reach a point over the next few years when we can say with absolute certainty that there will never be circumstances where the use of a police station as a place of safety for an adult is an appropriate option because their extreme behaviour cannot safely be managed in an alternative place of safety. That being the case, we do not believe that the proposed new clause is an appropriate way forward. However, I want to reach the position whereby police stations are used as a place of safety only in specific, “exceptional” circumstances —and, when they are used, the person taken there must be given the right medical care.

Lots of points were raised during the debate. The noble Lord, Lord Rosser, asked why there were discrepancies in the use of police cells across police forces. There is a range of reasons why this happens. It may include different policies on accepting violent behaviour, but it is also about the fact that, as the noble Lord pointed out, in London, for instance, they are not used as widely as they are in Lincolnshire, which has seen a high rise in the use of police cells. Often that is because Lincolnshire is more rural and there are not so many places of safety available, whereas there are more in London. So there are several reasons why that could be the case.

--- Later in debate ---

[Baroness Chisholm of Owlpen]

I was pointing that out as just one of the reasons why it might be—but we have to remember that, as we know, mental health is going through a huge change at the moment. As I said in a debate on Monday, I am afraid that we are going from a very low base. We have to be aware that it will take time for these places of safety to be there to ensure that we have an increased number of beds or places of safety for these people to be taken. That is part of the reason for the discrepancy.

To go back to further points raised on mental health, the noble Lord, Lord Rosser, raised an issue related to the respective changes to police powers under Sections 135 and 136 of the Mental Health Act. The noble Lord suggested that the maximum detention period should be reduced further to 12 hours. We are confident that the Bill reduces the maximum detention period by the appropriate amount—from 72 hours to 24 hours. The Government have seen evidence that the average assessment under Section 136 is conducted in under 11 hours. Furthermore, we fully support the target set by the Royal College of Psychiatrists for assessments to commence within three hours. However, there are some cases when it is not possible, due to the condition of the person detained, to conduct a meaningful assessment within 12 hours: for example, if they are intoxicated through alcohol or drugs.

The noble Lord also mentioned duties on police to consult with mental health professionals, with detainees having a right to an independent mental health advocate. The second issue concerned access to independent advice. Clause 78 requires police officers to seek advice from certain specific healthcare professionals, if practical, before making a decision to exercise their powers under Section 136. This is about supporting police officers to make the best possible decisions when they encounter a person who may be experiencing a mental crisis. This provision builds on existing good practice of police forces and local NHS services working together collaboratively, including through street triage schemes. The “if practical to do so” condition will avoid tying the hands of an officer if, in their judgment, they need to use the powers quickly to secure an individual’s safety.

On detainees’ access to advice, for example from a mental health advocate or an appropriate adult, the guidance supporting the implementation of these provisions will set out the expected support to be provided to any person detained at a place of safety under Section 135 or Section 136. Such support can, in our view, most appropriately be provided by health staff already present, rather than another person in a bespoke role, which would introduce delays and jeopardise professionals’ ability to conduct the assessment within 24 hours.

The noble Lord asked whether a person’s detention is disclosable if they subsequently apply for a disclosure and barring service check. In 2015 the Home Office published revised statutory guidance on enhanced DBS checks in relation to Section 135 and Section 136 detentions. The guidance now emphasises that the use of these powers in and of itself is unlikely to be sufficient to justify disclosure. The police are now directed to specifically factor in the behaviour of the detained person at the time, and how long they were detained. The Government’s position is that we cannot wholly rule out the possibility that there will continue to be circumstances in the future when a person’s behaviour is so extreme that it can safely be managed, at least initially, only in a police station. We are not legislating for some future point when that position will cease to be the case, which is what the amendment suggests.

I hope that, with all the things I have set out, and given our clear shared objective of doing what is in the best interests of all concerned, including their safety, I hope that the noble Baroness will be content to withdraw her amendment.

[Baroness Walmsley]

My Lords, I thank those who supported my amendment. I was fascinated by the treatise of the noble Lord, Lord Rosser, on other aspects of Sections 135 and Section 136. He is, of course, absolutely right that there is no correlation at all between the use of police cells and the rurality or urbanisation of the area concerned: absolutely none. I have always known that Merseyside is a very special place—because that is where I come from—but apparently in Merseyside there are no “exceptional circumstances”, whereas there are in other places. I cannot understand the Government’s determination to insist that there will be exceptional circumstances in other places if there are none in Hertfordshire and Merseyside.

It is quite clear that the Government are not going to move on this. However, I have to say that I welcome, of course, what the noble Baroness said about regulations. We will have to keep a very careful eye on how these work and whether they achieve our joint objective of bringing the numbers down as low as possible. I very much hope that that is exactly what will happen over the next few years. The hour being what it is, I beg leave to withdraw the amendment.

Policing and Crime Bill

Baroness Chisholm of Owlpen Excerpts

Report: 2nd sitting (Hansard): House of Lords
Wednesday 7th December 2016 Lords Chamber

Moved by

[Baroness Chisholm of Owlpen]

120: Clause 84, page 109, line 33, leave out “or in Northern Ireland waters”

[Baroness Chisholm of Owlpen (Con)]

My Lords, Section 32 of the Police (Northern Ireland) Act 2000 limits police jurisdiction throughout Northern Ireland and its adjacent UK waters within the seaward limits of the territorial sea in the same manner as Section 30 of the Police Act 1996 applies in England and Wales. However, within these limits, the police do not have powers suitable for the maritime context.

The new clauses proposed in this group comprise a new Chapter 6A of Part 4 of the Bill, making provision for the police and other law enforcement in Northern Ireland to have powers corresponding to those conferred on law enforcement in England and Wales and in Scotland by virtue of Chapters 5 and 6 of Part 4. In particular, new Chapter 6A provides Northern Ireland law enforcement with maritime-specific powers, such as to stop, board, detain and divert ships for the purpose of preventing, detecting or investigating an offence under the law of Northern Ireland. Unlike the provisions in Chapters 5 and 6 of Part 4, and at the request of the Northern Ireland Department of Justice, the powers are, however, limited to ships in the territorial waters of Northern Ireland and do not extend to international or foreign waters.

There are particular policing accountability and oversight arrangements in Northern Ireland, and it has not been possible for the Department of Justice to secure the necessary agreement with relevant stakeholders within the time available for the exercise of powers by law enforcement officers from England, Wales or Scotland in Northern Ireland waters in hot-pursuit situations. Again at the request of the Minister of Justice in Northern Ireland, these amendments would remove the hot-pursuit provisions that relate to law enforcement officers from outside Northern Ireland entering Northern Ireland waters. The Northern Ireland Assembly agreed the necessary legislative consent Motion in respect of these provisions on 28 November.

I note that the noble Lord, Lord Paddick, has an amendment in this group and I propose to respond to it when winding up. For now, I beg to move.

[Lord Paddick (LD)]

My Lords, as the Minister has just said, my noble friend Lady Hamwee and I have Amendment 122A in this group. It concerns Chapter 5, which is headed “Police Powers: Maritime Enforcement in Connection with English and Welsh Offences”.

The Bill gives extensive powers to the police in connection with preventing, detecting, investigating or prosecuting offences under the law of England and Wales in relation to a UK ship in England and Wales waters or international waters, a ship without nationality in England and Wales waters or international waters, a foreign ship in England and Wales waters or international waters, or a ship registered under the law of a relevant territory in England and Wales waters or international waters. That seems to me to cover any ship anywhere in the world, although there are restrictions if the UK ship is in foreign waters or if it is a foreign ship in England and Wales waters, when either the Secretary of State’s permission or, in some cases, that of the foreign state to which the ship is registered is required. In one place the Bill talks about “England and Wales waters” and in another it uses the words,

“within the territorial sea adjacent to England and Wales”.

I am not sure why there is different wording in different parts. Perhaps the Minister can explain.

The powers are to stop, board, divert and detain, to search and obtain information, and to arrest and seize. Officers who can exercise these powers include special constables, port constables, customs officials and anyone else the Secretary of State specifies in regulations, subject only to the negative procedure. This gives extensive powers to a whole range of law enforcement officers without restriction in relation to the exercise of the powers relating to a UK ship in England and Wales waters on the basis that the law enforcement officer has reasonable grounds to suspect—the same low level of suspicion required to make an arrest or to carry out a stop and search in the street—that an offence under the law of England and Wales is being or has been committed, or there are reasonable grounds to suspect that the ship itself is being used in the commission of an offence.

--- Later in debate ---

[Lord Blair of Boughton (CB)]

My Lords, it is an unusual pleasure for me to agree completely with the noble Lord, Lord Paddick.

[Baroness Chisholm of Owlpen]

The noble Lord, Lord Paddick, has again argued for the maritime enforcement powers in the Bill to be restricted to the enforcement of serious offences. As I indicated in Committee, we do not believe it is necessary to limit these powers in this way. The Government believe that we should trust the operational judgment of the police to determine when it is appropriate and proportionate to exercise their powers at sea. For example, we do not believe that the police would commit resources to interdict a vessel in international waters where there had been a theft of an item of, say, confectionery from a gift shop—which, incidentally, would be an indictable offence.

However, a police officer on, let us say, a UK-registered ferry should be able to act when the vessel is in international waters where a person commits a common assault on another person, or where a person exhibits threatening or abusive behaviour. In both cases, we are talking about summary-only offences and in both cases the noble Lord’s amendment would prevent the police acting, even though the law of the land applied and the actions of those individuals might none the less be triable in the courts of England and Wales. We do not impose restrictions on the categories of offences the police can investigate where they take place on other modes of transportation, so, again, I am unclear why we should treat maritime vessels any differently.

[Lord Paddick]

Can the Minister explain what happens at the moment if a summary-only offence is committed, for example, on a cross-channel ferry? How would that offence be dealt with?

[Baroness Chisholm of Owlpen]

I think that I will have to get back to the noble Lord on that point.

[Lord Blair of Boughton]

This is about the difference between a bus, a train and a ship. The ability to stop a ship and push it into harbour is a completely different level of activity from saying, “We’re going to stop the train at Reading because somebody has been assaulted”. I have listened to the argument made by the noble Lord, Lord Paddick, and I completely agree with him. It cannot be right that a single police officer can decide to turn around a cargo ship or a cruise ship in the Irish Sea for a summary offence. I accept that, as the Minister said, there are complications around theft, with the theft of some sweets from a shop being an indictable offence in some circumstances, but we have to make a definition somewhere. This is about being utterly reasonable, and I do not think that the Government are being reasonable here.

[Baroness Chisholm of Owlpen]

The police are professionals and they must have operational discretion as to when to exercise their powers. I know that a ship at sea is not a bus, which can just move into the side of the road, but a serious offence could have been committed. The police should be able to know when they need to exercise their powers. In answer to the noble Lord’s question, there are currently no powers to take effective enforcement action in such circumstances, other than in relation to modern slavery and drug offences.

[Viscount Slim (CB)]

My Lords, I am rather disappointed about the police in this situation. Certainly in my life, junior NCOs have taken charge of situations similar to this and had to make decisions. There must be somewhere within the constabulary either a lack of training or a lack of selection of their junior leaders.

[Baroness Chisholm of Owlpen]

I agree with the noble Viscount.

[Lord Paddick]

My Lords, I am glad that I brought back this amendment, if only to hear the noble Lord, Lord Blair, call me utterly reasonable. As for the Minister’s faith in the ability of an off-duty police officer who becomes involved in a brawl on a cruise ship to make completely the right operational decision not to divert the vessel into port, that goes beyond my own experience and that of the noble Lord, Lord Blair, of the way in which it would be natural for some off-duty police officers to behave in such circumstances. Clearly, I am not going to press this to a Division, but I think the House recognises the considerable discomfort that both the noble Lord, Lord Blair, and I have over the legislation as proposed.

--- Later in debate ---

Moved by

[Baroness Chisholm of Owlpen]

121: Clause 84, page 110, line 5, leave out “or Northern Ireland”

--- Later in debate ---

Moved by

[Baroness Chisholm of Owlpen]

122: Clause 85, page 110, line 10, leave out “or Northern Ireland”

--- Later in debate ---

Moved by

[Baroness Chisholm of Owlpen]

123: Clause 93, page 114, leave out lines 40 and 41

--- Later in debate ---

Moved by

[Baroness Chisholm of Owlpen]

124: Clause 96, page 117, line 12, leave out “or in Northern Ireland waters”

--- Later in debate ---

Moved by

[Baroness Chisholm of Owlpen]

126: Clause 97, page 117, line 35, leave out “or Northern Ireland”

--- Later in debate ---

Moved by

[Baroness Chisholm of Owlpen]

127: Clause 104, page 121, leave out lines 35 and 36

--- Later in debate ---

Moved by

[Baroness Chisholm of Owlpen]

128: After Clause 104, insert the following new Clause—
“CHAPTER 6APOLICE POWERS: MARITIME ENFORCEMENT: NORTHERN IRISH OFFENCESApplication of maritime enforcement powers: general
(1) A law enforcement officer may, for the purpose of preventing, detecting or investigating an offence under the law of Northern Ireland, exercise any of the maritime enforcement powers in relation to—(a) a United Kingdom ship in Northern Ireland waters,(b) a ship without nationality in Northern Ireland waters,(c) a foreign ship in Northern Ireland waters, or(d) a ship, registered under the law of a relevant territory, in Northern Ireland waters.(2) In this Chapter, “the maritime enforcement powers” are the powers set out in—(a) section (Power to stop, board, divert and detain) (power to stop, board, divert and detain);(b) section (Power to search and obtain information) (power to search and obtain information);(c) section (Power of arrest and seizure) (power of arrest and seizure).(3) The following persons are “law enforcement officers” for the purpose of this Chapter—(a) a constable who is a member of the Police Service of Northern Ireland or the Police Service of Northern Ireland Reserve,(b) a person appointed as a special constable in Northern Ireland by virtue of provision incorporating section 79 of the Harbours, Docks, and Piers Clauses Act 1847,(c) a designated customs official within the meaning of Part 1 of the Borders, Citizenship and Immigration Act 2009 (see section 14(6) of that Act),(d) a designated NCA officer who is authorised by the Director General of the National Crime Agency (whether generally or specifically) to exercise the powers of a law enforcement officer under this Chapter, or(e) a person of a description specified in regulations made by the Secretary of State. (4) Regulations under subsection (3)(e) are to be made by statutory instrument.(5) A statutory instrument containing regulations under subsection (3)(e) is subject to annulment in pursuance of a resolution of either House of Parliament.(6) Regulations under subsection (3)(e) may not make devolved provision except with the consent of the Department of Justice in Northern Ireland.(7) For the purposes of subsection (6), regulations under subsection (3)(e) make devolved provision if and to the extent that—(a) the effect of the regulations is to confer functions under this Chapter on a person of a description specified in the regulations,(b) it would be within the legislative competence of the Northern Ireland Assembly to confer those functions on persons of that description in an Act of the Northern Ireland Assembly, and(c) the consent of the Secretary of State would not be required under section 8 of the Northern Ireland Act 1998 in relation to a Bill conferring such functions.(8) This section is subject to section (Restriction on exercise of maritime enforcement powers) (which makes provision about when the authority of the Secretary of State is required before the maritime enforcement powers are exercised in reliance on this section).”

--- Later in debate ---

Moved by

[Baroness Chisholm of Owlpen]

137: Clause 105, page 123, line 29, leave out from “Scotland” to end of line 30

[Baroness Chisholm of Owlpen]

My Lords, Chapter 7 of Part 4 of the Bill closes a gap in cross-border powers by providing for urgent cross-border powers of arrest by police and other law enforcement officers across the three UK jurisdictions. Amendments 138 and 140 extend these powers so that they are exercisable by immigration officers and officers of Revenue and Customs, as well as National Crime Agency officers and designated customs officials who have the powers of Revenue and Customs officers. Amendment 137 provides that the powers are exercisable by British Transport Police officers in respect of offences wherever committed in the UK.

Amendment 149 inserts a new clause to provide that all the cross-border powers of arrest will be exercisable by Revenue and Customs officers in relation to any of the functions of HMRC or Revenue and Customs officers. This means that the powers will be available in relation to both tax and customs matters, rather than being confined to tax matters as they are now. The amendments also clarify the meaning of key terms as they apply to the exercise of the cross-border powers by Revenue and Customs officers and immigration officers. These amendments further enhance the effectiveness of law enforcement across the UK, ensuring that criminals are not able to evade the law simply by crossing an internal border. I beg to move.

[Lord Rosser (Lab)]

I just raise one question on these amendments, although I readily accept that, perhaps if I had read everything sent to me, I would not be asking such questions. As the Minister said, this talks about an extension of powers to immigration officers, Revenue and Customs officers, the British Transport Police and others. Should these provisions have been included earlier in the Bill and it has just been realised that they were not there, hence these amendments being brought forward, or is this some completely new power? If so, what has been happening up to now? What have been the consequences of not having these powers? How detrimental has that been?

[Baroness Chisholm of Owlpen]

No, this is just closing the gap that we realised was there earlier on. It is not new.

Amendment 137 agreed.

--- Later in debate ---

Moved by

[Baroness Chisholm of Owlpen]

138: Clause 105, page 126, line 43, at end insert—
“(9) In subsection (8), in the definition of “investigating force”, the reference to a police force includes a reference to—(a) the National Crime Agency;(b) any of the following (to the extent that their functions relate to the investigation of offences)—(i) officers of Revenue and Customs;(ii) immigration officers;(iii) designated customs officials within the meaning of Part 1 of the Borders, Citizenship and Immigration Act 2009 (see section 14(6) of that Act).(10) In the application of this section in a case where the investigating force is a police force mentioned in subsection (9)(a) or (b)—(a) the reference to a constable in subsections (4)(b) and (5)(b), and the reference to a constable in the investigating force in subsection (7)(a), is to be read as a reference to a National Crime Agency officer designated under section 9 or 10 of the Crime and Courts Act 2013 (“a designated NCA officer”), an officer of Revenue and Customs, an immigration officer or a designated customs official (as the case may be);(b) any reference to an officer of at least, or above, the rank of inspector in the investigating force is to be read as a reference to a designated NCA officer, an officer of Revenue and Customs, an immigration officer or a designated customs official (as the case may be) of at least, or above, the equivalent grade.”

--- Later in debate ---

Moved by

[Baroness Chisholm of Owlpen]

141: Schedule 16, page 344, line 30, at end insert “who has not been involved in the investigation in connection with which the arrest was made”

--- Later in debate ---

Moved by

[Baroness Chisholm of Owlpen]

149: After Clause 106, insert the following new Clause—
“Cross-border enforcement: officers of Revenue and Customs
In section 87 of the Finance Act 2007 (cross-border exercise of powers: officers of Revenue and Customs), in subsection (4) for “only in the exercise of a function relating to tax (including duties and tax credits)” substitute “in the exercise of any function of the Commissioners for Her Majesty’s Revenue and Customs or of officers of Revenue and Customs, within the meaning of the Commissioners for Revenue and Customs Act 2005 (see section 51(2) to (2B) of that Act)”.”

--- Later in debate ---

Moved by

[Baroness Chisholm of Owlpen]

150: After Clause 107, insert the following new Clause—
“Powers to require removal of disguises: oral authorisation
In section 60AA of the Criminal Justice and Public Order Act 1994 (powers to require removal of disguises), for subsection (6) substitute—“(6) Subject to subsection (6A), an authorisation under subsection (3)—(a) shall be in writing and signed by the officer giving it; and(b) shall specify—(i) the grounds on which it is given;(ii) the locality in which the powers conferred by this section are exercisable; and(iii) the period during which those powers are exercisable.(6A) An authorisation under subsection (3) need not be given in writing where it is not practicable to do so but any oral authorisation—(a) must state the matters which would otherwise have to be specified under subsection (6), and(b) must be recorded in writing as soon as it is practicable to do so.(6B) A direction under subsection (4) shall be given in writing or, where that is not practicable, recorded in writing as soon as it is practicable to do so.””

[Baroness Chisholm of Owlpen]

My Lords, these amendments respond to an amendment tabled by the noble Lord, Lord Dear, in Committee, which concerned the authorisation process for the exercise by a constable of the power to require the removal of a disguise. Section 60AA of the Criminal Justice and Public Order Act 1994 is an important preventive tool, enabling the police to remove disguises in instances where they believe offences may be committed. As an intrusive power, quite rightly this requires prior authorisation from an officer of the rank of inspector or above.

However, as the noble Lord, Lord Dear, explained in Committee, the spontaneous arising or escalation of public order incidents does not always permit sufficient time for this approval to come in written form. Amendment 150 ensures that oral authorisation is permitted where it is the only practicable course of action. This authorisation must then be put in writing as soon as is practicable. Amendment 204 makes a consequential amendment to the Long Title of the Bill.

These amendments have been the subject of extensive discussions between officials and the relevant national policing leads, as well as between MPs and the former Policing Minister, Mike Penning. They will give greater clarity and flexibility to the police in the operational use of this power. I beg to move.

[Lord Dear (CB)]

My Lords, I support the amendment. I remind the House that I tabled much the same amendment in Committee. I suggested then that the Minister might take the amendment back, consider it and bring it back on Report—which, of course, has been done. So I record my thanks to the Minister and the officials at the Home Office for their support.

Some misgivings were expressed in Committee that face veils—religious coverings—would be caught in this legislation. I would like to make it clear—as I think is now accepted—that the only change in this amendment is to allow authorisation for the police to use existing powers to be given orally and recorded in writing later. I hope that the fears concerning religious coverings have been allayed and I am very pleased to support the amendment.

--- Later in debate ---

[Baroness Chisholm of Owlpen]

My Lords, I remind the House that Clause 120 amends the definition of alcohol in Section 191 of the Licensing Act 2003. The current definition of alcohol covers spirits, wine, beer, cider or any other fermented, distilled or spirituous liqueur. The clause adds “(in any state)” to the definition; the purpose of this is to ensure that all alcohol, no matter in which form it is sold, is covered by the requirements of the 2003 Act.

Amendment 171A seeks to exempt powdered and vaporised alcohol from the 2003 Act and instead to control it as a class C drug under the Misuse of Drugs Act 1971. Controlling powdered and vaporised alcohol as a class C drug would, in effect, prohibit the possession, production and distribution of these forms of alcohol.

Alcohol is a legal substance and the Government’s approach is to minimise the harm caused by alcohol by regulating its sale and supply. The 2003 Act seeks to reduce harm through promotion of the licensing objectives. These are: the prevention of crime and disorder; public safety; the prevention of public nuisance; and the protection of children from harm. The 2003 Act also contains a number of criminal offences, including selling alcohol to a child under the age of 18 and selling alcohol without a licence.

The Government believe that the focus on the four licensing objectives provides sufficient safeguards for the sale of alcohol. It would be contradictory and disproportionate to regulate the sale of liquid alcohol but make alcohol illegal when it is provided in another form, such as powder or vapour. The classification of harmful drugs in the 1971 Act is predicated on an assessment of their respective harms and in accordance with recommendations made by the Advisory Council on the Misuse of Drugs. The 1971 Act places a duty on the Secretary of State to consult the advisory council before bringing a substance within the controls provided for in that Act.

Quite apart from questions over the merits or otherwise of controlling powdered and vaping alcohol in this way, the absence of such a consultation having been carried out means it would be inappropriate to amend the 1971 Act in the manner proposed by this amendment. The Government are not aware of any evidence that the harms posed by powdered and vaporised alcohol are such that it is necessary to consider controlling it as an illegal drug. Powdered and vaporised alcohol are not substances of which the misuse is having or capable of having harmful effects sufficient to constitute a social problem, as is the test under the 1971 Act. Unless and until there is evidence to suggest that these forms of alcohol are meeting that test, I believe that a regulatory approach is the appropriate one.

Clause 120 will ensure that the four licensing objectives continue to be met despite innovations in alcohol products and that the public, especially children, continue to be protected from irresponsible sales of alcohol. On that basis, I would ask the noble Lord to withdraw his amendment.

[Baroness Finlay of Llandaff]

Before the noble Baroness sits down, will she undertake to ask the ACMD to put this issue on its agenda and keep a watchful eye on it in the future? I declare an interest in that I was a member of the ACMD when khat was being looked at.

[Baroness Chisholm of Owlpen]

I thank the noble Baroness for that question. Home Office officials have discussed powdered alcohol with the Department of Health and Public Health England and are very much keeping it under review. They may well have to do things at a later date but, for now, they are just keeping a watchful eye on it.

[Lord Brooke of Alverthorpe]

I am grateful to the noble Baroness, Lady Finlay, for her support and expertise, and to my noble friend Lord Kennedy for weighing in from my Front Bench with support for the amendment. As noble Lords might expect, I am disappointed with the Minister’s response. The Government have consulted —they consulted the drinks industry—but if they had consulted over a wider area, and particularly the committee to which the noble Baroness, Lady Finlay, referred, I think they might have got an entirely different view in reaching their judgment on this classification.

I know quite a lot about the four objectives that govern the Licensing Act and, quite frankly, they are totally inappropriate in trying to deal with this. They were drawn up in the context of liquid alcohol, and there was a list of all the forms in which it is produced, but this is quite different. This is a move in an entirely different direction. I feel that, rather than take a serious look at this, the Government are simply applying the existing legislation as best they can, but they will not be able to implement it.

I will take the Minister’s arguments away, have a look at them and decide whether to come back again at Third Reading. I beg leave to withdraw the amendment.

--- Later in debate ---

[Baroness Chisholm of Owlpen]

My Lords, Amendment 172 seeks to add,

“the provision of social or cultural activities”

to the list of licensing objectives. This would require licensing authorities to make licensing decisions based on this objective, such as placing conditions on licences with regard to the provision of social or cultural activities.

As I explained in Committee, the existing licensing objectives, as provided for in Section 4 of the Licensing Act 2003, seek to reduce harm, which can be evidenced. Licence conditions intended to reduce the level of harm can be easily understood—for example, a requirement to restrict noise levels. Requiring licensing authorities to consider the provision of social or cultural activities would run in contradiction to the other licensing objectives, all of which are aimed at harm reduction.

Importantly, the 2003 Act provides that when a licensing authority receives a compliant application for a premises licence or club premises certificate, it must grant the authorisation unless it receives “relevant representations”. In effect, this means there is a presumption that licensing authorities will grant a licence in respect to an application, with appropriate conditions, unless there are strong concerns in terms of the licensing objectives.

I respect the noble Lord’s intentions with regard to grass-roots music venues and cultural participation, and share his desire to see a vibrant music industry, but I do not feel it is appropriate to use the 2003 Act to pursue that goal. On that basis, I hope the noble Lord will be content to withdraw this amendment.

[Lord Clement-Jones]

I thank the Minister for her response and the noble Earl, Lord Clancarty, for his contribution. One of the key points that he made, and which we are making with this amendment, is that of course local authorities have to make judgments currently. That runs, to use phraseology used by the Minister herself, directly counter to the arguments that are being made by the Government. She talks about evidence of harm, as if somehow under the current objectives it is all cut and dried and the evidence is absolutely clear-cut, but the fact is that judgments are made by local authorities. I am sure that when the noble Lord, Lord Kennedy, was a councillor in Southwark, he had a very enlightened approach to these matters, but these things are a matter of interpretation, and how you treat the evidence of harm is a subjective matter. In many cases, strong concerns might be disregarded because there are other, supervening objectives that a local authority thinks are important, or it may give more time for remedy.

There are all sorts of aspects, so to regard the current set of objectives as somehow pristine and able to be interpreted with huge clarity by local authorities, in contrast to this confused, woolly cultural objective, is only to confuse the issue. It is really a way of saying that the status quo is fine. But the status quo is not fine, and local authorities need some further guidance on these matters. I am not going to push this amendment further at this stage, but I hope there is a way in which further guidance or some other nudge towards a better solution for our night-time and grass-roots music venues is achievable. I am sure from the nods that I am receiving from the Government Front Bench that there is some sympathy for that approach. Now I am getting completely the reverse—clearly I had lulled myself into a false sense of security, which is always a big mistake in this House.

I hope the drip-drip of the fairly incessant rhythm—perhaps that is the right phraseology to use in connection with live music venues—of the campaign to ensure that we keep our live music venues has some effect. I entirely agree with the noble Lord, Lord Kennedy, that the night-time tsar in London is a fantastic new development, and I hope that other combined authorities will follow what London is doing in that respect.

I believe the Home Office also has responsibility in this area to help to preserve our venues, rather than simply stonewalling and saying, “We’ve got a very fine Licensing Act as it is and we don’t need any further objectives”. When we come to our next debate, I am sure the Government will make the same argument but they may find a rather different response when it comes to a vote. In the meantime, I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Rosser]

We certainly support the objectives of these amendments. As there was in Committee, there have been plenty of examples of the damage that is currently being done through these terminals and of the problems that we now face.

When the matter was discussed in Committee, the Government said that they understood the concern that such gaming machines could fuel problem gambling and that they were committed to reducing the risks of potential harms associated with such machines. They did not express any enthusiasm for adopting the amendments in Committee and, as has already been mentioned, they said that there was already a review under way which had been announced on 24 October. One assumes that the Government will be looking for the review to make recommendations which will enable them to implement the commitment they said they had in Committee to,

“reducing the risks of potential harms associated with such machines”.—[Official Report, 9/11/16; col. 1231].

Perhaps the Minister could indicate that that is how they are looking at this review and expect it to produce recommendations which will enable them to stick to the commitment that they enunciated when the matter was discussed in Committee.

As has already been called for—and I would do the same—it would be helpful if the Government could indicate now what the timescale is. They said in Committee that the call for evidence period would close on 4 December, which has now passed. I shall not ask the Government on 7 December what their conclusions are from the call for evidence but it would be helpful to know by when they will have come to conclusions. They said in Committee that, following the close of the period of the call for evidence, they would consider proposals based on robust evidence provided to assist in their decisions.

[Baroness Chisholm of Owlpen]

My Lords, as the noble Lord, Lord Beecham, has explained, these amendments would have the effect of devolving power over licence conditions for gambling premises and gaming machines to local authorities. Such conditions would, among other things, enable licensing authorities to impose minimum staffing levels on premises with such machines. I thank the noble Lord and the right reverend Prelate the Bishop of Bristol for again bringing this important matter to your Lordships’ attention. Let me emphasise that the Government are alive to the concerns about the dangers that fixed-odds betting terminals can pose.

It is worth reiterating that, as we speak, the Government are holding a review into the regulation of gaming machines, gambling advertising and the effectiveness of social responsibility measures on gaming machines, with a specific look at potential harm caused to players and communities. As part of this, we are liaising closely with the Local Government Association, among others, and we have received submissions related to the devolution and/or creation of additional powers for local authorities which we will of course consider alongside other proposals and evidence received.

I emphasise in particular that, as part of the review, the Government and the regulator, the Gambling Commission, are carrying out a thorough process which will look at all aspects of gaming machine regulation, including categorisation, maximum stakes and prizes, location, number and the impact that they have on players and communities in relation to problem gambling and crime among other things. All of these factors are potentially relevant and interrelated, and all should be considered together when looking at whether changes could or should be made to current gambling entitlements. We believe that the correct mechanism for looking at these issues is in collaboration with the regulator, the Gambling Commission, drawing on the best evidence available and subject to open consultation.

In addition, before we take any decision on this issue, we would want to ensure that the following risks were properly considered and consulted on. Any local authority which sought to exercise a power to change the number of fixed-odds betting terminals allowed on licensed betting premises would be likely to find its decision the subject of legal challenge. If these legal challenges are considered robust enough, we may be in a position of devolving a power that could not be effectively deployed. Local authorities have had a number of high-profile legal challenges from bookmakers on planning matters and may be reticent about utilising additional powers if it led to costly and protracted legal cases. We would therefore want to consult with the Local Government Association and local authorities on this issue. Again, I reiterate that the current review process is the appropriate mechanism to assess this, rather than immediately launching into these amendments to the Gambling Act.

We are also mindful of the possibility that piecemeal reform could give rise to unanticipated consequences. For example, if a local authority decides to reduce the number of fixed-odds machines, it may have the effect of encouraging operators to seek to open additional premises, furthering the problem of clustering.

We have already taken steps to tighten the controls on these machines and we have set out our plans for the review of gaming machines, gambling advertising and social responsibility which will include a close look at the issues related to fixed-odds betting terminals. I emphasise that we are taking this very seriously and that the review is looking into all these issues. When the review was announced on 24 October, it was stated:

“The review will be considering robust evidence on the appropriate maximum stakes and prizes for gaming machines across all premises licensed under the Gambling Act 2005; the number and location of gaming machines across all licensed premises; and social responsibility measures to protect players from gambling-related harm (including whether there is evidence on the impacts of gambling advertising and whether the right rules are in place to protect children and vulnerable people).

The review will include a close look at the issue of B2 gaming machines … and specific concerns about the harm they cause, be that to the player or the communities in which they are located.

In launching this review I want to ensure that legislation strikes the right balance between allowing the industry to grow and contribute to the economy while ensuring consumers and communities are protected, including those who are just about managing”.—[Official Report, Commons, 24/10/16; col. 1WS]

On the timetable for the review, as noble Lords know, the call for evidence closed on 4 December. An enormous amount of evidence was generated and there was a great deal of interest from the general public as well as from a variety of interest groups, local authorities, trade bodies and industries, and we will be looking in depth at the evidence that was submitted before considering proposals, which we hope to announce next year.

Given that this process is in train and that we are taking it extremely seriously, I invite the noble Lord to withdraw his amendment.

--- Later in debate ---

[Lord Rosser]

The noble Lord, Lord Moynihan, referred to Her Majesty’s Opposition. I make it clear to him that he continues to have our full support in his objectives and in the amendment that he has tabled. There is certainly no change on that score. As he said, prohibited substances are taken to gain an advantage in sport over fellow competitors. They are taken to produce a false result that is not determined purely and solely by the unaided skill and effort of each competitor but one that will, at the very least, be influenced or, at worst, determined by the taking of a substance which improves performance and creates one unrelated to the skill or effort of the competitor concerned. It is a form of fraud. It is cheating not just fellow competitors but the public, who pay to come to watch the sporting event in the belief that they will see a fair competition with competitors competing on a level playing field. As the noble Lord, Lord Moynihan, pointed out, in recent years many countries have criminalised the use of performance-enhancing drugs in sport or enacted legislation that criminalises the trafficking of such drugs.

I am curtailing what I had intended to say, but I want to refer briefly to the Government’s response in Committee. The Minister said that,

“the Government believe that rather than tackling this through legislation, it should be a matter for sports bodies”.

That statement appears to indicate that the Government would never favour making a criminal offence, as provided for in this amendment. However, as the noble Lord, Lord Moynihan, said in Committee, one cannot say that leaving this to sports bodies has exactly been a staggering success up to now. It is precisely because it has not been a staggering success that we have the problem we do. As the noble Lord, Lord Moynihan, pointed out, a number of other nations have legislated. As he also pointed out, he has taken the example of the Germans, the Italians and the Dutch, who have focused on the fact—this is crucial—that it is not just the athlete but the entourage who need to be criminalised. It is the entourage we have to make sure we—to put it bluntly—get at because they are at the heart of the problem at least as much as the athlete. The noble Lord also indicated that the deterrent effect in those countries of putting legislation on the statute book has already been effective.

That is why I come back to the response that we got from the Government in Committee. We got a clear statement that,

“the Government believe that rather than tackling this through legislation, it should be a matter for sports bodies”.

Having said that, the Minister went on to say:

“In order to have that evidence base, the Department for Culture, Media and Sport is currently conducting a cross-government review of the existing anti-doping legislative framework and assessing whether stronger criminal sanctions are required”.—[Official Report, 9/11/16; col. 1240.]

If you want to give a clear indication of the direction in which you wish to go, how can you say at one moment that the Government believe that, rather than tackling this through legislation, it should be a matter for sports bodies and then, a little later in the same speech, say that a review is taking place to assess whether stronger criminal sanctions are required and that the review is expected to be published before the end of the year?

In giving their response, I hope that the Government will at least clarify whether they believe this is a matter that should be left to sports bodies or whether they accept that there may well be a need for criminal sanctions and going down the road of criminal offences, which is a key part of the amendment that the noble Lord, Lord Moynihan, has tabled. There is not much point in talking about a review if the Government have already made up their mind—as one could interpret from the speech in Committee—that this is a matter for the sports bodies and not the law. I hope, however, that the Government will make clear that they accept that criminal sanctions and the creation of new criminal offences may well be needed to address this problem, as the noble Lord, Lord Moynihan, said in his comments on his amendment.

[Baroness Chisholm of Owlpen]

My Lords, it is a great honour to be in the presence of two such world-renowned athletes. Their Lordships look so well that it has certainly given me great inspiration to go back to the gym as soon as possible.

I am grateful to my noble friend Lord Moynihan for again raising the important issue of tackling doping in sport. As the House will be aware, the Government are reviewing the issue of criminalisation. The review is now in its final stages and we hope we will soon be in a position to publish. In finalising the report, we will naturally want to take into account the views expressed by noble Lords in this debate.

Anti-doping is a technical area and it is important to stress here that undertaking a review requires a comprehensive evidence base before considering any possible legislative options. The Government are very much alive to the issues and are actively examining what more can be done to enhance our national approach to doping, including the possibility of criminal sanctions, to uphold the highest standards of integrity in sport. We recognise that the desire to dope can be driven financially, and financial penalties are likely to be as damaging to those who cheat as a ban. Until now the Government’s view has been that, rather than through legislation, this should be a matter for sports bodies to sanction. The central question for the current review, however, is whether this approach still holds good.

It is important to underline that serious doping is already covered under existing domestic criminal legislation. Under the Misuse of Drugs Act 1971 and the Medicines Act 1968, the trafficking and supply of many doping substances is a criminal offence, carrying a penalty of up to 14 years’ imprisonment. Tough sanctions are also already in place via the 2015 World Anti-Doping Code. The code includes automatic four-year bans for drug cheats and support staff who are found guilty of doping. Such a ban forms a significant part of an athlete’s relatively short career, and it would also mean they would miss an Olympic Games cycle.

The Sports Minister, Tracey Crouch, is member of the foundation board of the World Anti-Doping Agency and attended its November meeting, where there was acknowledgement from foundation board members that the current code would be subject to further revision in the near future. There was also a call to revisit the discussion around athletes convicted of doping offences being banned from the Olympic Games.

The Government remain committed to tackling doping in sport and we will continue to work with UK Anti-Doping and our sport stakeholders to ensure that our athletes can compete in a clean sport environment. If the evidence is clear that stronger sanctions are needed, we will take action. There is a process in train—indeed, nearing completion—to ascertain whether the evidence points in the direction advocated by my noble friend. I therefore respectfully suggest to him that until we have completed the review, it would be premature to legislate on this matter in the manner proposed in this amendment. My noble friend has suggested that the Government instead pursue a different course by taking a power to implement the review’s findings through regulations. This is a tempting offer, but I still believe that would be putting the cart before the horse, and the House and the Delegated Powers Committee would rightly chastise the Government for legislating on an important area of public policy through a wide-ranging delegated power.

I recognise that my noble friend has been pursuing this issue for a great many years. I think he suggested that the leadership of WADA is conflicted and that independence is needed. At the most recent meeting of the World Anti-Doping Agency governing foundation board, approval was given for a review of WADA’s governance. Furthermore, there will also be a review on non-compliance sanctions. As a regulator, WADA needs teeth, and we are supportive of such an approach. I understand my noble friend’s frustration; none the less I hope he will bear with us for a little while longer. The Minister for Sport, Tracey Crouch, would be very pleased to meet my noble friend next week. In the meantime, I hope he will agree to withdraw his amendment.

[Lord Moynihan]

I am grateful to all noble Lords who took part in this debate. I hope it is not too mischievous to point out that over the last 30 years—I think it is about 30 years since I was Minister for Sport and had the first review of this matter—we have had a whole range of reviews. I welcome that Tracey Crouch announced a further review nearly a year ago, but it is unfortunate that the timing of its publication may be a matter of a couple of days after Third Reading of the Bill and thus preclude the opportunity for us to consider it and reflect it in the legislation.

I will very briefly respond to questions or comments that were made in the debate. In response to the noble Lord, Lord Kerr, I accept that improvements could be made to the wording of the amendment. I had hoped that my noble friend the Minister would have accepted that we were heading in the right direction, and taken it away with me and the likes of the noble Lord, Lord Kerr, to improve the wording before we got to the next stage, but sadly that was not to be this evening.

I stand second to none in recognising that over many decades the noble Lord, Lord Campbell, has not only been a pioneer but led the campaign to criminalise the worst excesses of doping, and his speech bore testimony to that. He said some very kind things, along with a slightly naughty reference to the benefit that I had from not taking growth hormones—diuretics would have been more appropriate for me, to keep my weight down in the coxswain seat. However, he is wrong on one point: very sadly I did not return from Moscow with a gold medal, but with a silver medal. I have subsequently learned that many of the athletes competing in that regatta were not only on drugs but subsequently sued the German Government for the damage to their health. They won and retained their gold medals. Such is the policy pursued by the International Olympic Committee on 20th-century gold medallists.

I echo what the noble Lord, Lord Addington, who was concerned about the wider application, said. Again, that could have been covered in an improvement to the amendment, but I recognise the point that he made. However, the amendment did not find favour with the Government at this stage and we may not have that opportunity.

I hold out hope that many of the points that the noble Lord, Lord Rosser, made will continue to reflect the position of his party. He has personally given a lot of support on this and shown interest in it during the passage of the Bill, and I am very grateful to him, as I am to the noble Lords on the Front Bench opposite, both of whom have been regularly in touch with me on the subject. It is a pity that the Government have focused on the review as the cornerstone of the reason why we should not be moving ahead now. I genuinely believe we have an outstanding set of Ministers in the DCMS. Karen Bradley and Tracey Crouch in particular have done a lot of very good work in this direction, and I do not think I would be speaking out of turn to say that I have heard them on a number of occasions at least put forward the benefits of considering the criminalisation of doping in sport. I hope therefore that the Government will be open-minded in their review on returning to this subject. There is a momentum, both internationally and nationally, towards legislation on this subject, and that momentum needs to continue. Thanks to the noble Lords who participated in a series of debates, it is continuing in the right direction in your Lordships’ House.

In closing my remarks, I very much hope that that the Minister will convey to her colleagues what she has said about the importance of the review and that they will seriously take it on board. In addition, I hope that an early opportunity will be found for your Lordships’ House to consider the findings of that review and to discuss this in more detail, including the possibility of finding an opportunity to legislate—if that is the wish of your Lordships—at a future stage. However, I recognise that we need to look at the review, take it into account and wait on its publication. With something of a heavy heart, after campaigning for this for some 30 years, ever since the first summit in Copenhagen, when I was Minister in 1987, I beg leave to withdraw the amendment.

--- Later in debate ---

Moved by

[Baroness Chisholm of Owlpen]

177: Clause 132, page 152, line 8, at end insert—
“(5A) If on a review under subsection (4) the Minister decides to uphold the Treasury’s decision to impose the penalty and its amount, or to uphold the Treasury’s decision to impose the penalty but to substitute a different amount, the person may appeal (on any ground) to the Upper Tribunal.(5B) On an appeal under subsection (5A), the Upper Tribunal may quash the Minister’s decision and if it does so may—(a) quash the Treasury’s decision to impose the penalty;(b) uphold that decision but substitute a different amount for the amount determined by the Treasury (or, in a case where the Minister substituted a different amount, by the Minister).”

--- Later in debate ---

[Baroness Chisholm of Owlpen]

My Lords, financial sanctions are an important foreign policy and national security tool. Their effective implementation and enforcement are vital to their success. In order to ensure that financial sanctions enforcement is appropriately targeted and proportionate, it is important that a range of alternative enforcement options are available, such as the monetary penalties provided for in Part 8 of the Bill.

The permitted maximum penalty is set at the level of £1 million or 50% of the value of the breach. This level is considered to be adequate to disgorge profits made from financial sanctions evasion and provide a sufficient incentive to improve future compliance in cases where prosecution is not warranted.

In its current form, the Bill states that a decision to impose a civil monetary penalty will be made by the Treasury, and the person upon whom a monetary penalty is imposed has the right to request a review of the decision by a Minister in person. The Minister may uphold the decision and the amount of the penalty, uphold the decision but change the amount of the penalty, or cancel the decision. The Bill does not currently provide the individual with any right of appeal, although both the decision of the Treasury and that of the reviewing Minister are within the scope of a judicial review application. Following further consideration, however, we have concluded that it would be appropriate to provide for a right of appeal to the Upper Tribunal, and Amendment 177 amends the Bill accordingly. Such an appeal route will ensure that there can be a full-merits hearing on points of law and fact, whereas a judicial review hearing in the High Court can examine only points of law.

Amendments 178 and 179 address a separate point. Clause 141 permits the Treasury to extend temporary sanctions regimes and temporary designations to the Crown dependencies and the British Overseas Territories, to ensure that financial sanctions take effect in these territories “without delay”, as required by the resolutions of the United Nations Security Council. However, we have always been clear that the power will not be used in respect of any territory that takes its own measures to apply financial sanctions without delay. In recent weeks the Government of Jersey have taken their own legislative steps to implement sanctions without delay. That being the case, the Government of Jersey have requested that reference to them be omitted from Clause 141. Amendments 178 and 179 give effect to that request. Of course if any other Crown dependency or overseas territory takes similar steps to Jersey, the power in the clause will not be used in relation to that territory. However, as the other territories have not yet done so, it is prudent to retain them in scope for the time being. I beg to move.

Amendment 177 agreed.

Moved by

[Baroness Chisholm of Owlpen]

178: Clause 141, page 158, line 29, leave out “any of the Channel Islands” and insert “the Bailiwick of Guernsey”

Policing and Crime Bill

Baroness Chisholm of Owlpen Excerpts

Report: 3rd sitting (Hansard): House of Lords
Monday 12th December 2016 Lords Chamber

Amendment 181BA, which again I support, proposes a requirement for a full review within 12 months of the commencement of these provisions. It is always wise, where possible, when bringing in new requirements which could be deemed controversial or as affecting certain people disproportionately, to build in a review process. That enables good law to be made and, where necessary, for problems to be highlighted and action taken.

[Baroness Chisholm of Owlpen (Con)]

My Lords, as we have heard, this group of amendments relates to the provisions in Clauses 144 and 145, which confer powers on police and immigration officers to require a suspected foreign national to state their nationality after arrest and to produce nationality documents where required. Following the debate in Committee, government Amendments 180, 181 and 194A seek to address concerns raised then by the noble Baroness, Lady Hamwee, and the Joint Committee on Human Rights. The noble Baroness has tabled a number of amendments of her own, designed to push the Government a little further, but before I respond to these I shall explain the government amendments.

Amendment 180 concerns the situation where a UK national does not possess a passport and is otherwise suspected to be a foreign national. As recommended by the JCHR, this amendment clarifies that officers are able to take into account alternative documentary evidence which would establish an arrested person’s entitlement to a British passport. Supplementary guidance will also be provided to make it clear to officers what specific evidence would normally be sufficient to establish nationality and can therefore be taken into account in that assessment. Given this, I do not believe that Amendment 180A, which seeks a similar end, is necessary.

Amendment 181 will enable us to pilot these provisions on a limited basis to ensure that police processes are robust and that there are no adverse consequences for black and ethnic minority British nationals. Following the pilot and in advance of the rollout of these provisions, we will lay a report before Parliament on the outcome and effectiveness of the pilot. Among other things, the report will include a full equality impact assessment. Given this undertaking, I hope that the noble Baroness will agree that Amendments 181A and 181B are also unnecessary. The noble Baroness wanted to know where the pilots will take place. Subject to agreement with the police, one pilot will take place in Hampshire and the other has yet to be agreed.

Amendments 179A and 179B seek to make it clear that an officer may impose the requirements in Clauses 144 and 145 only when it is reasonable to do so. However, it is already the case that officers may only ever act on reasonable grounds when exercising their powers. Accordingly, I put it to the noble Baroness that there is no need to write this into the Bill. Moreover, in respect of the offences in these clauses there is, in each case, a reasonable excuse defence.

Finally, Amendment 181BA seeks to provide for a post-legislative review of not just the provisions in Clauses 144 and 145 but also the powers conferred by the Immigration Act 2016 to search for and seize driving licences held by an illegal migrant. There is an established procedure for post-legislative review of all legislation, which takes place three to five years following Royal Assent. Consequently we do not need to make express statutory provision for this.

While this is not the occasion to reopen the debates on last Session’s Immigration Bill, I shall just make a couple of observations about the new powers in relation to driving licences. During the debates last Session on these powers, my noble friend Lord Bates made a number of commitments addressing the concerns then raised by the noble Lord, Lord Paddick, including a commitment to pilot the power to search for a driving licence in one or two police areas. The pilot will test the operational details so that any impacts can be identified by the pilot scheme and addressed. My noble friend also committed to issuing guidance to police and immigration officers on the operation of these powers and to a public consultation on that draft guidance before implementation. The consultation will raise awareness of these powers and provide an important gateway through which communities will be able to consider and comment on, among other things, appropriate safeguards.

It is also unnecessary to set up an ad hoc independent review every time we wish to scrutinise police forces’ use of specific powers; Her Majesty’s Inspectorate of Constabulary exists for this purpose. The inspectorate independently assesses police forces and policing activity in the public interest. The PEEL inspection programme —an annual, all-force inspection which assess forces’ efficiency, effectiveness and legitimacy—considers both the extent to which forces use their powers effectively and the extent to which forces treat the people they serve with fairness and respect. In addition, the Home Secretary has the power to commission HMIC to inspect and report on any particular issue if she feels that it requires greater scrutiny than it has received in the course of rolling inspection programmes.

HMIC has a strong track record in shining a light on police use of intrusive powers and has not pulled any punches in its reports on stop and search. It is largely due to HMIC’s findings that the previous Home Secretary announced increased scrutiny of road traffic stops through their incorporation into the best use of the stop and search scheme. We are therefore confident that the necessary systems to provide effective scrutiny of these powers are already in place. The clear statutory safeguards against the misuse of this power, the commitment to a pilot and a public consultation and the role of HMIC mean that this amendment is unnecessary.

The noble Baroness also asked about the Delegated Powers and Regulatory Reform Committee’s recommendation. As this is essentially a commencement power, we are not persuaded that the regulation should be subject to a parliamentary procedure. However, I assure the House that we will set out in the regulations the duration of any pilot, and I have already undertaken to lay a report before Parliament on the outcome and effectiveness of the pilot before we commence these provisions more widely.

I trust that this rather lengthy explanation of the government amendments will provide the necessary reassurance to the noble Baroness, Lady Hamwee, and that she will therefore be content to withdraw her amendment.

[Lord Kennedy of Southwark]

Before the Minister sits down, will she address the point I made earlier about page 163 where “reasonable” is used a number of times in respect of suspects but not of police officers. Why is that distinction there? If the Minister would like to write to me, that is fine, but I think it is odd that there is that distinction.

[Baroness Chisholm of Owlpen]

I will write to the noble Lord to clarify that point.

[Baroness Hamwee]

My Lords, I am grateful to the noble Lord, Lord Kennedy. When the noble Baroness writes, perhaps she can also explain this about what the Government did in the Immigration Act 2016. For this purpose, I simply refer to Section 43, which introduces a new paragraph in Schedule 2 to the 1971 Act providing for power to be exercised only if the authorised officer has “reasonable grounds” for believing that, in this case, the driving licence is on the premises. The very fact that that terminology is used in legislation which we passed a mere few months ago must raise the question of why it is not included in the comparable clause in this Bill. I know that the noble Baroness cannot answer this at the moment, but I hope that as well as writing, she might be able to discuss this with officials. It is an intrinsically important point, but also a technical one, as to why it should not be included in this Bill. Perhaps we can come back to this at Third Reading. I am not of course expecting her to do anything other than nod sympathetically, as she is doing.

The Delegated Powers and Regulatory Reform Committee will no doubt consider the Government’s response, but I note that on the question of the affirmative procedure, the Minister said that she did not think that these regulations should be subject to parliamentary procedure. The committee also suggested, or would require, that the Secretary of State should consult interested parties before making the regulations. I am not sure—I might have missed it—whether she referred to the maximum duration of pilots. I accept that there will be post-legislative reviews, and that everything has to be kept under review, but it is the importance of the subject matter which led us to raise the point about requiring an ad hoc review.

I do not know whether the Minister has any information as to whether the pilots and guidance under the Immigration Act are going to be introduced in tandem with, and in the same areas as and so on, the pilots under this Bill. Does she have any information about that?

[Baroness Chisholm of Owlpen]

I think that is still under discussion at the moment with various authorities.

[Baroness Hamwee]

My Lords, we will see, but I am glad to note the Home Office’s acceptance of the importance of the issue, which I never had in doubt. I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Wigley (PC)]

My Lords, I realise that the House wants to move to a vote on the very important and significant debate we have just had. I do not know whether there is a mechanism whereby I could come back to Amendment 185 at Third Reading so that we do not lose this debate because this, also, is a very important question with regard to the anonymity or otherwise of people involved in rape cases. I would be grateful for some guidance on this matter.

[Baroness Chisholm of Owlpen]

I am afraid that if the noble Lord wants to press this amendment he has to press it now. We cannot go back to it again because we have to go in order.

[Lord Wigley]

I will speak as rapidly as I can and I am sorry that this is going to detain the House. Amendment 185 is in my name and those of the noble Baronesses, Lady Howe of Idlicote, Lady Brinton and Lady Cohen of Pimlico. I thank them for their support.

I do not apologise in the slightest for returning to a matter that I raised in Committee, since most of the countercase put by the Government in Committee triggered dismay and incredulity among those involved in cases such as those I highlighted then. To the extent that there was any validity in the Government’s countercase, I have adjusted the wording of the amendment to respond constructively. The impact of this new clause would be to prohibit the police in England and Wales from disclosing the name of the victim of rape or attempted rape to the alleged perpetrator—

--- Later in debate ---

[Baroness Cohen of Pimlico (Lab)]

My Lords, my name is also attached to this amendment, but I would not normally have spoken given that the noble Lord, Lord Wigley, and the noble Baroness, Lady Howe, were such distinguished proponents of it. At the moment there is a choice of injustices. Perhaps we should have provided—and I should be glad to provide at Third Reading—a clause saying that a judge may decide whether the name should be disclosed. This is, however, also a modern offence. In the old days it might not have mattered very much if you disclosed only the name of the accuser. These days, the perpetrator has no trouble at all, because of the spread of social media, and these cases are more frequent.

One reads of cases all the time and I want to disentangle this from the issue of rape. It is not entirely about rape. It is about being knifed in the street or pushed under a Tube train by a perfect stranger, as I am sure we have all read about, and being terrified thereafter in case he or she comes and does it again. Therefore, I would be very grateful if the Minister would understand the strength of feeling and the injustice being done. If we can put in a clause at Third Reading offering the possibility of review by a judge if necessary, I would be glad to do so.

[Baroness Chisholm of Owlpen]

My Lords, as the noble Lord, Lord Wigley, has explained, this amendment is designed to strengthen the protection for the victims and witnesses of a sexual or violent assault by a stranger. I sympathise with this objective but, as I indicated in Committee, there are difficulties. I am grateful to the noble Lord for taking on board the points I made in response to his earlier amendment on this issue. He has now come forward with a substantially revised amendment. I fear, however, that this serves only to highlight again the challenges of legislating in this area.

It is vital that the criminal justice system supports and protects victims and witnesses, particularly victims of sexual offences, who are especially vulnerable. As I stated in Committee, there are already a number of means whereby those at risk of further harm, or who are deemed to be intimidated, can be safeguarded. I shall not repeat these measures now, other than to say that there is a wide range of options available for their protection. To intimidate a witness is a very serious criminal offence.

Of course, the right to a fair trial is a cornerstone of our criminal justice system. The noble Lord, Lord Wigley, has rightly acknowledged this in the revised amendment before us today. However, to say that the identity of a victim or a witness may be withheld from the defendant except where to do so would compromise the defendant’s right to a fair trial is almost always a contradiction in terms. As my noble friend Lord Hailsham said, fundamental to a fair trial is the right of the accused to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him. The accused cannot be expected to prepare a proper defence if he does not know who is accusing him of the alleged crime, and without that there can be no fair trial.

In exceptional circumstances, there is already provision for anonymity of victims or witnesses from the accused, through a witness anonymity order. A number of conditions must be met for this to apply, including that it would protect the safety of the witness or another person, that it is in the interests of justice for the witness to testify and the witness would not testify if the order were not made, and that it would be consistent with the defendant receiving a fair trial. It is an exceptional measure of last resort. This means that in the minority of cases where those accused of violent or sexual assault are strangers, the court can decide to grant victim or witness anonymity, provided these other conditions are met.

[Lord Wigley]

On that very point, if the court determines at that stage whether or not to release information, surely there is every case to get consistency prior to that. I quoted five cases, I think it was, of different responses by the police in different parts of London. The absence of any consistent approach to this underlines that there is a serious problem. If the Government were willing to review how the mechanism of referring to the courts, which the Minister mentioned, can be brought in in a way that avoids the variety of ad hoc responses by the police, that might be one way forward. I would be very grateful if the Minister would consider that.

[Baroness Chisholm of Owlpen]

The problem is that, as I said earlier, it is an exceptional measure of last resort. This means that, in the minority of cases where those accused of violent or sexual assault are strangers, the court can decide to grant victims and witnesses anonymity, provided that the conditions are met.

While I cannot for these reasons support the noble Lord’s amendment, he has raised an important point about the consistency of practice both across and within police forces about the disclosure of the address and telephone number of a victim. Crown Prosecution Service policy on prosecuting cases of rape clearly states that addresses of victims and witnesses should not be disclosed to the defendant during court proceedings. The same is true of victims’ or witnesses’ telephone numbers or email addresses. However, we do not know how aware the police are of this policy, so we will explore with the College of Policing whether it would be appropriate for additional guidance to be given to police forces to ensure that this practice is universally followed.

[Baroness Cohen of Pimlico]

Before the Minister sits down, I say that in the case with which the noble Lord, Lord Wigley, and I are most familiar, the police disclosed the victim’s name quite automatically to the perpetrator about 20 minutes after they had arrested him on the evidence of two policemen. It is all very well to say that you can wait to have a court make a decision, but a policeman made a decision at the earliest possible stage, and that is the issue that the noble Lord, Lord Wigley, and I are attempting to address.

[Baroness Chisholm of Owlpen]

I am sure the noble Baroness will understand that I cannot go into individual cases. CPS policy on prosecuting cases of rape clearly states that witnesses’ addresses should not be disclosed to the defendant unless already known. The CPS does not disclose the addresses, email addresses or phone numbers of victims or witnesses in any case unless already known. That is why we are looking at ways to ensure that this approach is similarly applied by police forces.

While the amendment is well intentioned, for the reasons I have given, I do not consider that it will help advance the noble Lord’s cause. He has alighted upon an important issue regarding the consistency of practice adopted by criminal justice agencies in relation to the disclosure of a vulnerable victim’s address or other contact details, and I am ready to explore further how this might best be addressed. On that basis, I hope the noble Lord will feel able to withdraw his amendment.

[Lord Wigley]

My Lords, I am grateful. I realise that the House wants to move forward rapidly. I was grateful for the contributions made by the noble Viscount and the noble Lord, Lord Carlile, to the contra argument with regard to the rights of the defendant. Of course I recognise that they are important. The question seems to revolve around the inconsistency of the police response, which the Minister has accepted needs to be looked into, and whether, while it was reasonable to withhold addresses and telephone numbers in the past, it might now be necessary to withhold the name because of the ease of getting addresses from information available on computer-based systems these days. If the Government are prepared to review those aspects of the question, we will feel that we have made some progress on this issue. If the Minister can indicate that the Government are willing to look at those aspects, I will be prepared to withdraw the amendment.

[Baroness Chisholm of Owlpen]

We realise that certain aspects need to be addressed, which is why I said that I am ready to explore further how this might best be addressed.

[Lord Wigley]

I am grateful to the Minister. On the basis of that assurance that there will be an investigation into those aspects of the question, I beg leave to withdraw the amendment.

--- Later in debate ---

[Baroness Finlay of Llandaff (CB)]

My Lords, I am most grateful to the noble Baroness. Lady Hamwee, for speaking to me beforehand; we have had some discussion. I would like to go straight to answering both those questions, from my perspective, as I was the person who tabled the original amendment. I must declare my interest, as I now chair the National Mental Capacity Forum. I took over and started to do that in September of last year.

In terms of consultation, when I was listening to the voice of the person who had been on the receiving end of the Mental Capacity Act it was very evident very quickly that the automatic requirement for an inquest was causing an enormous amount of distress to families. It was also through that process that Ann Coffey MP consulted widely in her constituency and further afield—and coroners have been asked. So this was not brought forward lightly.

There was also consultation with the adviser to the Care Quality Commission, who feels strongly that DoLS are a useful process for safeguarding people who are particularly vulnerable. He was very supportive of the process following the judgment of the noble and learned Baroness, Lady Hale, which clearly laid out the acid tests under which DoLS should be applied.

As for cost savings, I see there being absolutely none. Actually, there is a possibility that costs might go up. Although unnecessary inquests will not, I hope, happen, so coroners will not be taken away from inquests that really do need to happen by the bureaucratic process of the unnecessary inquests, of which there were almost 7,000 last year, that find that death was due to natural causes, it is possible—indeed, I hope that this will happen—that more people will be inclined to make a deprivation of liberty safeguards application if there is a doubt about whether somebody is being deprived of liberty, because the deterrent of knowing how much distress would be caused to people, including families, will be removed.

Care home, clinical and hospital staff find it very distressing to say, “We’re going to go through this process of applying for a deprivation of liberty safeguards authorisation—and, secondarily, by the way, that means that there will automatically be a coroner’s inquest”. For those who culturally need a burial very rapidly after somebody has died, that causes profound upset—as it does to other families. As one coroner’s officer said, to me, “Sadly, sometimes the first time the families realise there has to be an inquest is when I have to pick up the phone to tell them, and they are deeply distressed”.

I suggest that by putting this measure in place we are removing a barrier to the deprivation of liberty safeguards, which are a way of protecting the rights of the most vulnerable person, because there is an inspection process. It must be necessary, proportionate and in the person’s best interests, and the person has a power to appeal to the Court of Protection against a deprivation of liberty safeguard. So people have far greater rights than somebody who ought to have a deprivation of liberty safeguard authorisation in place but where no application is being made. So I hope that this will increase the rights of the most vulnerable as well.

The process of scrutiny is that the Care Quality Commission has to be notified when a standard DoLS is in place. It will know whether a place has unusually many or unusually few DoLS applications, and will look in depth at the quality, the atmosphere and the culture around the way that care is given there. With all due respect to coroners, I think that the CQC is far more likely to detect where things are going wrong than a coroner’s inquest on a single case. But I reiterate that if a family have any concerns whatever, irrespective of whether there was a DoLS in place, they can ask for a coroner to look at a case when somebody has died. If they are suspicious, they can ask the question.

[Baroness Chisholm of Owlpen]

My Lords, I am grateful to the noble Baroness, Lady Hamwee, for raising this important issue. The Government take seriously their responsibilities to the very vulnerable group of people in society whom this amendment concerns. I also thank the noble Baroness, Lady Finlay, for her deep knowledge of this issue, and for the words that she has spoken this evening.

Coroners in England and Wales play a critical role in investigating the deaths of persons where there is a suspicion that death may have resulted from violence or unnatural causes, or indeed where the cause of death is unknown. Coroners will continue to have this duty with regard to persons who have been deprived of their liberty as authorised under the Mental Capacity Act 2005. There is no restriction on when or by whom deaths can be reported to a coroner. Indeed, the registrar of deaths has a duty to report deaths to the coroner where he or she considers that the coroner’s duty to investigate may apply.

The Government recognise that there is a need to improve the scrutiny of deaths that are not investigated by a coroner. The Coroners and Justice Act 2009 contains provisions to introduce medical examiners who will contact the deceased’s family and those involved in the deceased person’s care to identify any concerns as part of a reformed death certification process.

We consulted on our proposals earlier this year and aim to publish our response to the consultation in the new year. This will of course be particularly relevant to vulnerable people in hospitals and care homes, regardless of whether they are being deprived of their liberty. Medical examiners will not just be responsible for scrutinising individual deaths not investigated by the coroner but will have a role in analysing data on deaths across their area. They will identify patterns and contribute to lessons that will reduce avoidable deaths. They will also have a duty to report to coroners deaths for which a coroner’s investigation may be required.

The effect of Clause 155 will be that the death of anyone subject to a deprivation of liberty safeguards authorisation, or an appropriate Court of Protection order, will no longer trigger an automatic coroner’s investigation. We supported this change in the law in the light of views expressed by the then chief coroner, his honour Peter Thornton QC, in his 2015-16 annual report. He called for immediate action to remove deprivation of liberty safeguards cases from the definition of “in state detention”—a point that, just prior to his recent retirement, he reiterated to the Minister for Victims, Youth and Family Justice.

The issue here is not simply one of the resources needed to undertake these inquests. The then chief coroner had addressed this to some extent through his 2014 guidance, revised in 2016, which set out a streamlined process. But, as he has said, these inquests “serve no good purpose”. It cannot be right that more than 20% of inquests undertaken each year are unnecessary, with all that that implies in terms of added anguish for bereaved families.

I thank the noble Baroness for raising the profile of this important issue, but I hope that she will accept that the Government’s recently completed consultation on reforming the death certification process will, when its proposals are implemented, complement and support the work of our coroners who investigate suspicious deaths.

I think that the noble Baroness, Lady Hamwee, asked who we consulted in the consultation. The Ministry of Justice consulted the former and current chief coroner. Having said that, we consider that this removes any further need for further consultation on the coroner’s statutory duties, and I hope that the noble Baroness will therefore be content to withdraw her amendment.

[Baroness Hamwee]

I thank the Minister, but I cannot restrain myself from observing that her answer has been that there has been a consultation and that the Government will publish their response to it next year. I say that as nicely as I can, because clearly a lot of work has gone on with regard to this—and I am grateful to the noble Baroness, Lady Finlay of Llandaff, as well, for filling out the information that she gave pretty comprehensibly to the House on the last occasion. I beg leave to withdraw the amendment.

--- Later in debate ---

[Baroness Hamwee]

My Lords, I hope that my noble friend will understand that, given the further business to which the House has to attend tonight, I will confine myself to saying that we on these Benches enthusiastically support her amendments.

[Baroness Chisholm of Owlpen]

I thank the noble Baroness, Lady Brinton, for meeting with me, and for tabling these amendments again so that this House has a further opportunity to debate the important issue of victims’ rights.

Some of the amendments seek to place aspects of the Code of Practice for Victims of Crime on a statutory basis. This is a statutory code, provided for by the Domestic Violence, Crime and Victims Act 2004, and as such all criminal justice agencies are required to provide the services victims are entitled to under it. Many of the entitlements for victims included in the proposed amendments are already in the code. Some are for all victims of crime, while others are enhanced entitlements for the most vulnerable victims of crimes such as stalking and domestic and sexual abuse. Placing them on a statutory footing separately will not ensure compliance, nor guarantee that those entitlements are delivered effectively. The effect would merely be symbolic, and make amendment and updating of entitlements more difficult.

As I said before, we recognise the importance of training for professionals who work with victims. Under the police educational framework and national curriculum, police officers and staff receive training on the code throughout their careers. Officers and staff can receive training on the code at various stages of their careers. This training is supported by a new online package launched by the College of Policing. All Crown Prosecution Service staff who attend court have been given face-to-face training on the new Speaking to Witnesses at Court guidance and on how to interact with victims and witnesses at court without undermining the fairness of the trial. This is supported by a comprehensive package of e-learning, which barristers who appear for the CPS in court are expected to complete.

We also appreciate that more can be done in relation to certain categories of crime. That is why, for example, the College of Policing, as part of reviewing its guidance on stalking and harassment investigations, is looking at whether police officers fully understand the offences and are receiving appropriate training. It is also why Her Majesty’s Inspectorate of Constabulary and Her Majesty’s Crown Prosecution Service Inspectorate are carrying out a joint inspection to assess the effectiveness of police forces and the CPS in dealing with cases involving stalking and harassment, and to examine the service received by victims. The CPS is developing a training package for its prosecutors to improve the quality of charging and review decisions in stalking and harassment cases.

There has also been a concerted effort to improve the response of the police in domestic abuse cases. In its most recent national thematic inspection of the police response to domestic abuse, Her Majesty’s Inspectorate of Constabulary found improvements in police attitudes towards victims and front-line officers’ understanding of the importance of dealing with victims in a supportive way. Since 2014, every police force has published a domestic abuse improvement plan, new guidance has been published by the College of Policing, new training has been successfully piloted and for the first time, police are now collecting data against a national standard on all domestic abuse recorded crimes. A joint police and CPS witness care review is looking to identify clear performance measures which would include timeliness of communication of information to witnesses as set out in the code. In addition, Her Majesty’s Courts & Tribunals Service is undergoing an audit by the Government Internal Audit Agency on the effectiveness of arrangements in place for victims and witnesses, against requirements in the victims’ code and the witness charter. Results are expected in the first quarter of 2017.

In order to determine what is required to strengthen further the rights of victims of crime, we are looking at available information about compliance with the victims’ code, and considering how it might be improved and monitored. We are also looking carefully at the range of proposals that have been made by the Commissioner for Victims and Witnesses and others. We are focused on making sure we get this work right, and ensuring that any future reform proposals are evidence-based, and an effective and proportionate approach.

Finally, in relation to Amendment 188, which seeks to provide a direct route of complaint for victims to the Parliamentary Ombudsman, I should add that on 5 December the Cabinet Office published a draft public service ombudsman Bill. The Bill will improve access to the ombudsman’s services by allowing for all complaints to be made with or without the help of a representative and in a variety of formats to meet the digital age. When the Bill is brought before your Lordships’ House, it will provide a further opportunity for noble Lords to test whether the measures I have set out are delivering the improvements to the experience of victims in their interaction with the criminal justice system that we all want to see.

I hope that, having further debated these issues and received greater detail of the work that is being undertaken both by the Government and by the criminal justice agencies, the noble Baroness will be content to withdraw her amendment.

[Baroness Brinton]

I thank the Minister for her response, but sadly, many of the concerns I have raised were not particularly well articulated. There is no doubt that there is an entitlement to victims to have support. The fundamental problem is that there is no duty on the agencies to deliver it. The Minister said that police receive training when they first start their careers, and they can receive training later on. The problem is that, in practice, it does not happen consistently. The experience of victims, as outlined both tonight and at earlier stages of the Bill, demonstrates that it is still woefully inadequate in some parts of the country. The College of Policing clearly has an important role, but there are real concerns that there is a focus on the domestic abuse improvement plan without understanding that stalking and coercive control are key issues as well.

I accept the points the Minister has made about the draft public services ombudsman Bill, but there is more in Amendment 188 than is covered in that draft Bill. I believe that I have noble Lords’ support, and I would like to test the opinion of the House.

Policing and Crime Bill

Baroness Chisholm of Owlpen Excerpts

3rd reading (Hansard): House of Lords
Monday 19th December 2016 Lords Chamber

[Lord Kennedy of Southwark (Lab)]

My Lords, as the noble Baroness, Lady Hamwee, said, these amendments were discussed on Report a few days ago. Amendments 1 and 2 add the world “reasonably” to this section of the Bill requiring someone to confirm their nationality. In that discussion, I made the point that in this section of the Bill the wording “without reasonable excuse” is used in respect of suspects in new Section 43B(1) and again in new Section 46C(1), and on that page there is also “for a reasonable cause”. That is different from the provisions for police and immigration officers. I asked the noble Baroness, Lady Chisholm, to write to me, and I think she was going to, but I have not yet had the letter. It is on its way. That is good to know. When she replies, I hope she will shed some light on why the Government do not need the same provision for both groups in this part of the Bill.

[Baroness Chisholm of Owlpen (Con)]

My Lords, these amendments again seek to provide in the Bill that a police or immigration officer exercising the powers in Clauses 161 and 162 to require a suspected foreign national to state their nationality and provide their nationality documents on request must act reasonably.

I am grateful for the opportunity to clarify the Government’s position. On Report, the noble Lord, Lord Kennedy, suggested that the drafting of these clauses seemed inconsistent, given that, on the one hand, there was no express requirement on an officer to exercise the powers reasonably but, on the other hand, the defence operated only where the accused had a reasonable excuse. There is no inconsistency here. The reasonable excuse defence is a necessary safeguard which allows a suspected foreign national to offer legitimate reasons to an officer and, if necessary, a court, for their non-compliance. This might include, for example, circumstances where a document may have been destroyed with reasonable cause—a scenario which is also catered for elsewhere in immigration legislation. The requirement for officers to act reasonably in the first instance is, in the Government’s view, a quite different point.

I acknowledge that there are some variations in the drafting of the large number of existing Acts which set out UK immigration law. It is also accepted that certain actions in the Immigration Act 2016 explicitly require those exercising coercive powers to act reasonably. However, it is not the case that, in the absence of an explicit reference to that effect, officers are able, through that omission, to act unreasonably. This language is not universally applied, or required, nor is it used elsewhere in legislation which deals with the seizure or retention of nationality documents.

In exercising the powers conferred by Clauses 161 and 162, police and immigration officers must act in accordance with public law principles, which include acting reasonably, or they may be challenged in the courts by means of judicial review. I also note that the wording of these clauses is consistent with that used elsewhere in immigration legislation—for example, Section 17 of the asylum and immigration Act 2004, which uses the same language for similar purposes. Section 17 deals with the retention of documents that come into the possession of the Secretary of State or an immigration officer in the course of exercising an immigration function.

Finally, I should add that operational guidance in respect of these new powers will make it clear to officers the circumstances under which these powers may be exercised. In the light of this further assurance that these powers may be exercised only when an officer has a reasonable suspicion that an arrested person may not be a British citizen, I hope that the noble Baroness will be content to withdraw her amendment.

However, I will just add a couple of things: of course we are very happy to continue to engage with the noble Baroness as our plans for pilots develop; she is also right that Hampshire was one of the places that was suggested for the pilot.

[Lord Kennedy of Southwark]

Before the noble Baroness sits down, did I hear her correctly say that these powers can be exercised only when an officer has a reasonable suspicion? If that is the case, then I do not see why it should not be in the Act and this amendment accepted.

[Baroness Chisholm of Owlpen]

We take the view that the police should always act in a reasonable way.

[Baroness Hamwee]

I think that encompasses our arguments.

With regard to the pilots, I am grateful for the noble Baroness’s assurances, but had there been consultation on the choice of Hampshire, she might have had some useful input.

I do not know whether the noble Baroness is in a position to tell us whether there is a distinction between an immigration officer or constable “suspecting” under these clauses in the Bill and an officer having “reasonable grounds for believing”. Are these different tests? It seems to me that suspecting and having reasonable grounds for believing are not the same, but I think she is telling us that they are. Does she have anything that she is able to add?

[Baroness Chisholm of Owlpen]

I am slightly muddled by what the noble Baroness is saying. Could she explain that a bit more?

[Baroness Hamwee]

I take the point that different formulae are used in different parts of immigration law, but the Immigration Act to which I have referred provides for an officer to have “reasonable grounds for believing” something, while under this Bill, he simply has to “suspect” something. “Reasonable grounds for believing” seems to me to be a much tougher test than simply suspecting. The noble Baroness may have something she can share with the House on that.

[Baroness Chisholm of Owlpen]

Suspecting and believing are slightly different words, obviously. Perhaps I had better write to the noble Baroness with more clarification.

[Baroness Hamwee]

My Lords, I wonder whether this is something that we can add to the discussion or consultation on the pilots. If one is going to pilot two provisions in the same place, carried out by the same officers and prompted no doubt by the same observations, it would be quite interesting to have them either able or not able to require documents from the same people, but not able to do so because in one case the ground applies and in the other it does not. I realise we are getting into very fine detail, but it will be very real detail in the application. It is not the noble Baroness’s fault, but I can see that we are not going to be able to make further progress on this today. I beg leave to withdraw the amendment.

--- Later in debate ---

[Baroness Chisholm of Owlpen]

My Lords, as these amendments are purely consequential on various non-government amendments added to the Bill on Report, the Government will not oppose them. We are reflecting on the debates on the amendments put forward on Report by the noble Lord, Lord Rosser, and the noble Baronesses, Lady Royall and Lady Brinton, and we will set out our position when those amendments are considered by the House of Commons on 10 January.

Amendment 14 agreed.