Police Reform and Social Responsibility Bill

Baroness Hamwee Excerpts

Thursday 16th June 2011 Lords Chamber

Moved by

[Baroness Hamwee]

244ZZA: Clause 142, page 96, line 32, leave out subsection (2)

[Baroness Hamwee]

This amendment takes us to the issues relating to Parliament Square. I start with an apology. Like many other noble Lords, I had thought that we would be a little further advanced by this time and I am committed to a speaking engagement, fortunately as near as Portcullis House. However, it means that I will not be here for the whole of the debate on this part of the Bill, about which I am extremely sad. The future of Parliament Square is an issue dear to my heart. However, I am delighted to see the repeal of what I have always thought of as offensive provisions in the Serious Organised Crime and Police Act.

I have no need to rehearse at length why it is so important that demonstrations in the vicinity of Parliament should not be blocked. Indeed, I think that they should be facilitated. I was heartened, too, by a discussion that I had with the Hansard Society recently about the work that it is doing to promote better co-ordination of the various institutions around Parliament Square that are part of our democracy. That includes not just Parliament but the Supreme Court and Westminster Abbey. We could all operate better together for the benefit of tourists, of course, but more particularly for our own citizens. I do not want to see the re-enactment in the Bill of what I have described as offensive provisions for a narrower area—in other words, not to halfway up Whitehall and so on, but for Parliament Square itself.

Maybe it is important to rehearse the importance of the rights to peaceful protest and assembly, which are integral to our democracy. Any interference in them must be proportionate as it is a matter of human rights. The Government are held to account through a number of mechanisms. Making views clear to both government and Parliament, whose job is partly to hold government to account, is integral to that. This is all wrapped up with the right of free speech. I have said to your Lordships before that it does us as parliamentarians no harm to be confronted, in a physically non-confrontational way, with other people’s views. Sometimes those views are expressed vocally, though we may not hear so much of that at this end of the building. We tend to hear more noise from Old Palace Yard, which I think is outside the area covered by these provisions. The loudest is often the hymn-singing that is sometimes organised there by religious groups. As I said, it is not appropriate to re-enact the provisions for a narrower area, nor to give aesthetic considerations —tidying up the square—more weight than considerations based on democracy.

What is there about Parliament Square that needs more protection than is available through the Public Order Act 1986? That is at the heart of the questions in this group and on this part of the Bill. The Joint Committee on Human Rights report said that,

“the right to protest is clearly not an absolute right”.

It can legitimately be regulated but,

“the regulation of protest should not represent a hidden obstacle to the freedom of assembly”.

At paragraph 1.16, the committee said:

“the proposed offences must be justified by the Government as necessary to meet a legitimate aim and as proportionate to the proposed interference with the rights protected by Articles 10 and 11 ECHR, the right to freedom of expression and assembly”.

It said, I thought rather generously, that,

“the Explanatory Notes explain in very broad terms the Government’s view that these provisions are proportionate”.

I found it harder to detect justification in the Explanatory Notes. That is why I am opposing the question that these other clauses, beside Clause 142, should stand part of the Bill. That will save others from perhaps wondering in my absence why I am opposing that the clauses stand part. I know that my noble friend Lady Miller of Chilthorne Domer, who will move the amendments that I cannot, and who has a much longer track record of standing up for these matters than I do, will speak to them. I will therefore also be opposing that some of the other clauses stand part.

On Clause 142, I am troubled by subsection (2) which provides that public assemblies will come within the Public Order Act, including,

“public assemblies which started, or were being organised, before this section comes into force”.

This may not be retrospective in a technical sense but I wonder what it means. Section 14 of the 1986 Act provides that a police officer can only give directions or impose conditions prospectively. I have been wondering whether Clause 142(2) means that the directions bite only from when they are given. This is of course relevant to whether there is an offence as regards the past, or whether the offence is committed maybe in respect of a continuing activity but only from the point of a direction that is not obeyed. I beg to move.

[Lord Campbell-Savours]

My Lords, I shall intervene for a few moments. We are often told that scrutiny in the Lords is better than that in the Commons, but this is a section of the Bill that I would have liked to have talked on, under a number of amendments, and due to pressure of time and the fact that we will be going late this evening we will not have the opportunity. This section of the Bill will not be subject to the level of scrutiny that I believe it deserves.

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[Lord Wallace of Saltaire]

My Lords, the noble Lord is enjoying asking a hypothetical question. As we know, the police operate through discretion and by consent. I remind him that the most hostile response I have had from the House when answering a question was when we discussed sessional orders and a number of his colleagues on the Benches opposite demanded that the police should clear space for their cars to enable them to drive through large demonstrations on their way to the House. I had to point out that the police operate by consent and occasionally do not wish to clear away thousands of demonstrators in order to ensure that noble Lords can drive in here. These are matters of judgment. We have to allow the police to operate by consent and to have confidence in them in that regard.

We are working with Westminster City Council and the Greater London Authority to ensure that the relevant by-laws are strengthened to deal with disruptive activity in the wider area as well as in the central traffic island—as I call it—of Parliament Square itself. Our approach is aimed at targeting specific problems in a small area of Parliament Square and empowering the local authority to take action by giving it the ability to enforce relevant by-laws more effectively. Having reassured the Committee on that, and having encouraged it to continue the wider debate which we started on Friday about the future of Parliament Square, Old Palace Yard and the environs of this world heritage site, I hope that I can persuade the noble Baroness to withdraw the amendment.

[Baroness Hamwee]

My Lords, I am grateful to my noble friend and to the noble Lord, Lord Desai, for their support. I keep coming back to my question about what is so special about Parliament Square, apart from the fact that we love it. Noble Lords may have noticed that although I oppose a great deal of the Bill, the encampment is a different matter. I am not entirely encouraged to hear that more by-laws may be applied, but there we go.

I do not think that my noble friend answered my question about Clause 142(2). Can he answer the question about when it applies from—what I said was not technically retrospective—

[Lord Wallace of Saltaire]

My Lords, I apologise. That is very much a transitional arrangement to ensure that those who are already encamped there when the regulations are changed are not enabled to say that they do not apply to them. As I say, this is a transitional arrangement.

[Baroness Hamwee]

My Lords, I understand that but since they will be committing an offence it may well be relevant to how long that offence has been committed for. If a direction is given on a Wednesday and they move the following Wednesday, they have committed an offence for a week, but they may have committed an offence for a year and a week if this measure is not technically retrospective, as I say. In terms of sanction, I would have thought that might be very relevant.

[Lord Wallace of Saltaire]

My Lords, that is a very fair point. I promise that I will go back to the department and will write to the noble Baroness about that.

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[Baroness Hamwee]

My Lords, I am grateful for that. I beg leave to withdraw the amendment.

Amendment 244ZZA withdrawn.

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Moved by

[Baroness Hamwee]

244ZZB: Clause 144, page 97, line 16, leave out “constable” and insert “senior police officer”

[Baroness Hamwee]

My Lords, I beg to move Amendment 244ZZB. I suppose for Hansard I should also say that I am also speaking to Amendments 244ZA, 244ZAC, 244ZCE, 244ZCF, 244ZDZA, 244ZDZB, 244ZEA, 244ZEB, 244ZEC, 244ZED, 244ZEE, 244ZEF, 244ZF, 244ZG and will oppose the Question that Clause 149 stand part.

The first half of the amendments in this group would replace “constable” with “senior police officer” in Clauses 144, 145 and 146. Under Section 12 of the Public Order Act a “senior police officer” means the most senior in rank at the scene. I had wondered whether a constable was referred to because of the seizure powers that would be likely to be carried out in many instances by a relatively junior officer. However, the definition in my Amendment 244ZAC answers the point. The Public Order Act got it right by stating that the officer should be the most senior in rank at the scene. It is appropriate to ask the Government to justify why they have extended that right, only in the case of Parliament Square, to warranted officers below the most senior in rank at the scene.

What worries me more are the powers to be extended beyond warranted officers; those powers are the subject of the remainder of the amendments in the group. Powers are to be given by the Bill to authorised officers, who will include employees of the GLA and Westminster City Council. Assistant Commissioner Lynne Owens of the Metropolitan Police gave evidence to the Public Bill Committee in the Commons to the effect that a broad discretionary power, vaguely drafted, is very difficult for a police officer to exercise in the middle of a protest. However, police officers have training and experience that are probably not available to authorised officers—council employees. I know that the duties of some council employees have been extended to some public order matters. There are wardens in Trafalgar Square, but their experience and duties are rather different from those expected under the Bill.

The Bill grants powers of direction and seizure to an authorised officer, although, as a result of an amendment during proceedings on the Bill before it reached us, only a constable may use “reasonable force”. I welcome that, of course, although I cannot quite envisage an authorised person—a council employee—seeking to seize an item, its owner holding on to it, and the authorised person saying something such as, “Oops, please wait right there while I get a constable”. It is not clear that this is workable. It is better not to let those who are not warranted officers—warranted officers would be clearly identifiable—getting into the situation at all.

This was something on which the Joint Committee on Human Rights made a number of comments, referring to the fact that the Minister had explained that the Government thought it would be bureaucratic and time-consuming to limit the direction-making power to police officers. I am well aware of how much work the Committee has to get through tonight, but I nevertheless want to read the JCHR’s recommendation into the record. At paragraph 1.22 of the report the committee said:

“We are concerned that the main reason given by the Minister … is cost and administration saving”.

The committee continues:

“We welcome the Minister’s reassurance that these powers would be accompanied by guidance dealing with the appropriate exercise of discretion, identification and, in particular, with the reasonable use of force. However, no provision for these important safeguards is made on the face of the Bill. We regret the Government’s reluctance to accept the need for further definition or statutory guidance. In the absence of statutory safeguards, we do not consider that the Government has provided adequate justification for the extension of this broad discretion to use such powers to local authority employees or contractors”.

It also states at paragraph 123:

“We consider that the power to seize property is a power of the type which should generally be reserved to police personnel. Without further justification for seizure powers to extend to the local authority, we consider that this power should be limited to police personnel”.

I have cut down the amount that I was intending to read into the record. I beg to move.

[Baroness Miller of Chilthorne Domer]

Briefly, I agree heartily with my noble friend. It is not just a question of the seniority of the police officer, or whether they are warranted. My noble friend made some important points. Every inquiry into difficulties with protests recently has found that training is the issue. I hope that the Minister will be able to tell the House what provisions are in place under this Government for better training. The other place concluded after G20 that never again must untrained officers be placed in the front line of public protest. Nowhere is more front-line than Parliament Square. Inadequate training in the law, including human rights and public order powers, and a lack of clarity about the role and function of the forward intelligence teams, who are very much on the ground in the case of bigger public demonstrations, have been issues.

I realise that since some of those comments were made, we have had the appointment of Sir Hugh Orde, who has brought some valuable experience in human rights training from Northern Ireland, which was recognised for integrating human rights training into general training. In human rights training, it is so important to get the balance between freedom of expression and that spilling over into something else.

The previous Government rather sloped their shoulders with regard to the Home Office giving guidance on what training should be given and said that it was a matter for ACPO. Does the Home Office feel more strongly now that guidance on training, particularly in this regard, is a matter for the Home Office?

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[Baroness Browning]

My Lords, I will pick up on that last point about seizure before I begin to address the amendments. Police officers have different seizure powers that are largely based on their need to prevent crime or to seize evidence for a crime. People have mentioned deckchairs and other such items. Depending on the circumstances, it would be up to the police officer concerned to exercise their judgment about whether the item they were seizing was involved in either preventing crime or was evidence that might be used in a later prosecution.

Amendment 244ZZB is premised on ensuring that only the most senior officer present at a scene can issue a direction to cease doing a prohibited activity. The Government fully appreciate the likely challenge to these provisions. We understand that the intention behind the amendment is to ensure that directions are properly issued by escalating authority to the senior officer present at the scene. On a point of principle, the Government are confident that police constables, regardless of rank, can issue appropriate directions. The Government support the return of discretion to police professionals.

On a point of operational practicality, the package of reforms is designed to support early and proportionate interventions by the police to prevent an escalation of prohibited activities. However, the amendment would hinder that. Amendments conferring powers only on the senior officer present at the scene would have an adverse impact on practical enforcement on the ground, and on that basis I urge the noble Baroness to withdraw the amendment.

The same arguments extend to Amendment 244ZA and other amendments in a similar vein. These amendments would remove powers from authorised officers of the Greater London Authority and Westminster City Council, about which I shall say more in a moment. The effectiveness of the new legal framework in Part 3 depends on a strong collaborative partnership approach between the Metropolitan Police, the Greater London Authority and Westminster City Council, with which the Home Office continues to work closely. It is necessary for all three agencies to be able to exercise some powers to avoid the type of situation in which, for example, a heritage warden employed by the Greater London Authority found himself unable to act or to deal with an individual until a police officer arrived to assist. Removing all powers from authorised officers would make the provisions in Part 3 unworkable.

Clearly, members of the public must be able to identify authorised officers, understand what powers they have and their authority to use them, and what avenues of complaint are open to them. Greater London Authority heritage wardens carry identification and wear a uniform, as do authorised officers from Westminster City Council. We understand from both the GLA and Westminster City Council that to date there have been no issues with authorised officers’ identification for the purposes of implementing by-laws. In addition, we are working with the relevant authorities to develop enforcement protocols and guidance on all these issues. I say to my noble friend Lady Miller of Chilthorne Domer that the Home Office has undertaken to provide the guidance and operation for this part of the Bill.

The Government recognise the concerns generated by the powers that are available to authorised officers. That is why, as noble Lords may know, we have listened to concerns raised in the other place and have decided to remove the power to use reasonable force from authorised officers. However, the amendments would take away the powers of authorised officers to deal with even the most routine cases. I urge noble Lords not to press their amendments, which would make the provision in Part 3 unworkable. I hope they will feel that I have given them sufficient information to be more confident about how we intend to proceed with this part of the Bill.

[Baroness Hamwee]

My Lords, as has been said, seizure of items, as well as directions, will be very much a matter for judgment. My noble friend referred to training—an issue which was highlighted following past experience. We often talk about lessons learnt but do we ever actually learn the lessons or just talk about learning them? Exactly the same applies to the example given by the noble Lord, Lord Campbell-Savours—it will be a matter for judgment. Overenthusiastic authorised officers may well escalate a problem rather than calm it down. The Minister refers to practical problems regarding the senior officer on the scene. I think that the issuing of directions will be less of an issue than one-to-one encounters. Therefore, again, I am not wholly persuaded.

The GLA and Westminster say that there have been no problems with identification as regards their own officers in the past, but I wonder how much that has ever really been tested. I hear what the Minister says, so at this point I beg leave to withdraw the amendment.

Amendment 244ZZB withdrawn.

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[Baroness Doocey]

In view of the lateness of the hour, I will be brief. The purpose of Amendment 251 is to move the implementation of the changes to policing in London from October this year to October next year. The Mayor of London and the Government are keen to introduce the new system from 1 October this year and the Bill would allow that to happen. There are two important reasons why that should be delayed.

First, the Olympic and Paralympic Games will take place between July and September next year. There will also be many preparatory events which require large policing operations. For example, the torch relay will start in May and continue until July. That will be a major security challenge. Police officers will be drafted in from all parts of the country to police the Games. The Olympics will affect every police force in Britain, not just the Metropolitan Police. There is absolute agreement that the Olympics present the biggest security challenge that British police have ever faced in peacetime. They will require a policing operation on an unprecedented scale. The Metropolitan Police have spent years planning for every eventuality. As circumstances develop, these plans will need to be updated and revised to take account of issues as they arise. For any Government to allow the police to divert their efforts from this huge security operation in order to take part in a reorganisation is deeply worrying.

Secondly, the mayoral election in London next May could result in a change of mayor. It is entirely possible that a new policing system could be put in place on 1 October this year, designed to reflect the current mayor’s priorities, only to be dismantled again next year if another party wins the election. It is a real possibility that the police in London could face not one but two major reorganisations in the period leading up to the Olympic Games. Reorganisations are disruptive in any organisation. This one will require the police to change all their reporting structures and to brief a completely new set of stakeholders and board members. This is no easy task, as anyone who has ever been involved with policing will say. It will take huge effort and time on both sides. The reorganisation will be work-intensive, expensive and time-consuming. It should happen only once and at a time when it does not conflict with the planning of the Olympic Games. The police must not get involved in a major reorganisation at this time. They must be free to concentrate their efforts and energies on the greatest security threat this country has ever faced.

[Baroness Hamwee]

I support my noble friend in her amendment. She has been absolutely consistent and spoken powerfully on a number of occasions, both in public and in private, about this issue. She has certainly convinced me. I have not told her, but I thought at the start of the conversation some months ago that she was perhaps overegging the case. I do not believe that now. In view of the time, I do not want to detain noble Lords any longer but wanted to put that on record. Similarly, though I do not want to enter into much of the discussion that surrounded Amendment 252, I said during the debate on pilots that I thought it a good idea for HMIC to report on the operation of pilots. That was many hours of debate ago but it is only consistent of me to support a different arrangement but one also involving HMIC and a report to Parliament, as contained in Amendment 252.