Baroness Williams of Trafford
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Policing and Crime Bill
Baroness Williams of Trafford ExcerptsWednesday 26th October 2016
(8 years ago)
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The Earl of Erroll (CB)
My Lords, I know nothing about this but a question suddenly occurred to me. If this is a statutory duty that these services are undertaking, will this help them secure funding to do it properly?
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, like the noble Lord, Lord Rosser, I recognise the sterling work and professionalism of the fire and rescue authorities in providing a brilliant service to the various communities during the significant number of flooding incidents, especially in December and January. The noble Lord talked about the Greater Manchester FRA, to which I pay full tribute. When I visited some of the affected areas, such as Rochdale, Salford and Bury over the new-year period, there was clearly effort from not just the community and police but the fire and rescue service. It provided fantastic input into what was a very successful operation in clearing up various areas.
It is clearly important that a timely and co-ordinated response is provided at these critical incidents. A number of agencies are involved generally in rescuing people from floods, particularly in coastal areas, including the Royal National Lifeboat Institution and the Maritime and Coastguard Agency, as well as fire and rescue authorities and the local charitable organisations that play a vital part in many communities. However, direction rests with local resilience forums for local responders to work out the arrangements that work best in their area. Often, this will be the fire and rescue authority but there may be many valid reasons—as the noble Lord, Lord Paddick, outlined—why they might choose a different responder in different circumstances and if that works locally. We do not want to reduce this flexibility with a one-size-fits-all approach as there may be good reasons why, in some areas and on some occasions, it makes more sense for a different responder to take the lead. The fact that two noble Lords have slightly different views on how that might be is proof of that.
I will give an example. During and in the direct aftermath of serious flooding, it has been vital for other agencies including voluntary groups to provide services to protect people from serious harm and to distribute clean water to those affected. Depending on the extent of the incident, it may be necessary for the Royal Air Force to take a major role, as with the flooding in 2007 when it deployed Sea King helicopters from as far afield as Cornwall, Anglesey and Yorkshire for the rescue of 120 people. There are advantages to a permissive, multi-agency regime where responders have broad powers and local discretion rather than a prescriptive duty for flooding or indeed any other type of critical incident we can identify. There is no question that fire and rescue authorities have the power they need to respond to floods. They have responded to all major flooding events and usually provide the most resources.
I welcome the scrutiny that this amendment provided of the arrangements for the emergency services’ response to flooding. To answer the brief question from the noble Earl, Lord Erroll, in terms of something being on a statutory footing, yes, it would necessitate a funding stream. However, for the reasons I have given and from the experiences I have had, I believe that the existing regime with broad, permissive powers gives both fire and rescue authorities and local resilience forums the flexibility they all need. On that note, I ask the noble Lord to withdraw his amendment.
Lord Rosser
I thank noble Lords who contributed to this short debate, and the Minister for her response. I think she said that the fire and rescue services did respond to all major flooding events, which is certainly my understanding of the situation.
It seems a little odd that even if there may be objections to the precise wording of our amendment, there is no willingness to write in a statutory duty and function in respect of flooding for our fire and rescue services. We know that they play a key role. If I understood the Minister correctly she indicated that, if this was on a statutory footing, the fire and rescue services would of course have to be provided with the resources to carry out that activity. Bearing in mind the issues that fire and rescue services face over resources, one has a suspicion that one reason for the reluctance of government to go down this road may be that it would require that commitment of resources, even though the Government have acknowledged that the fire and rescue services do respond to all major flooding events. Obviously, I am disappointed with the Government’s reply but at this stage I beg leave to withdraw the amendment.
Baroness Williams of Trafford
My Lords, I thank the noble Lord, Lord Paddick, and Parliament’s only living breathing PCC, the noble Lord, Lord Bach, for an insight into their views and the opportunity for your Lordships’ Committee to debate the provisions in the Bill that seek to give more responsibilities for handling complaints to local policing bodies.
The Government are committed to reforming the police complaints system so that complaints made against the police are responded to in a way that restores trust, builds public confidence and allows lessons to be learned. The reforms also increase the independence and accountability of the complaints system by enhancing the role of police and crime commissioners and their equivalents in London. The Bill seeks to strengthen local accountability by giving PCCs explicit responsibility for the performance of the complaints system locally and the responsibility for those appeals currently heard internally by forces.
As the noble Lord, Lord Bach, has tried to tease out of the Government, Clause 12 gives PCCs the ability to choose to take on the additional complaints functions of handling low-level customer services issues, the initial recording of complaints and communicating with the complainant throughout the process. Amendment 124 to Clause 12 would remove this ability to choose, instead giving PCCs the mandatory responsibility for all these complaints functions. However, the Government’s intention is to ensure that PCCs can choose the model that would work best for them in their local area. As the noble Lord says, this will look different across the country in future as that local choice is made.
PCCs are very well placed to listen to the concerns of their constituents. The reforms will provide PCCs and forces with the flexibility to deliver a complaints service that responds to the needs of their local area rather than trying to operate within some sort of rigid system that does not reflect operational or community differences. For example, a PCC might wish to give his or her force the ability to deliver a more customer- focused complaints handling system before making a judgment on taking on additional responsibilities. However, the Government have acknowledged the concerns raised with regard to different models operating across the country. This is why the Bill enables PCCs to choose to take on only specific duties within a reformed and streamlined framework. Responsibility for the formal handling of complaints will remain with forces or, in the more serious and sensitive cases, with the IPCC.
Lord Bach
I am very grateful to the Minister for giving way. I should have mentioned this and asked her the question in my earlier remarks. A lot of police and crime commissioners want to know, if they decide to extend their powers—I know they will be extended to some extent anyway, but if they are fully extended—whether resources will follow. That is quite an important issue for them, and I wonder whether the Minister can help us.
Baroness Williams of Trafford
My Lords, I will correct this if I am wrong. While I am not guessing, I am assuming that, particularly where you have the model with a mayoral PCC as well, the mayoral precept will enable some of those mayoral functions. On the additional resources, I would like to write to the noble Lord before Report as I would not want to say something to the Committee now that simply was not true.
Amendment 127 to Clause 22 relates to the ability of PCCs to delegate their complaints-related function. The amendment seeks to clarify the difference in language in the subsections of the clause, and I am happy to do that.
The reason for the difference in language between the subsections is that it aims to replicate the language already used in the corresponding Acts. Although subsection (1) uses different language to that in subsections (2) to (4), the policy intention and result is the same. Local policing authorities should and will be able to delegate their complaints-related functions. Regardless of whether any complaints-related functions have been delegated, the local policing body will retain ultimate responsibility for the complaints performance in its area. This follows the same model as chief constables delegating their complaints responsibilities to more junior ranks, where the chief constable is still ultimately responsible for the outcome.
I hope that those comments have reassured noble Lords and that the noble Lord will feel happy to withdraw his amendment.
Lord Paddick
I am grateful to the Minister for that explanation on Amendment 127, which is a probing amendment. I am not as enthusiastic about her response to Amendment 124, and I am grateful that we have the noble Lord, Lord Bach, here as a living, breathing police and crime commissioner who can bring his experience to this. I have to say that, bringing my experience as a police officer, I believe that there would be great benefit if there was one system that members of the public knew and could rely on. For example, it would be of great benefit to the public if the decision on whether complaints were investigated was taken out of the hands of the police.
The Minister said that the purpose of the new provision was to restore trust. If the purpose is to restore trust and a PCC decides not to take up the offer, what are the constituents in a PCC’s area to think about that? However, at this stage, I beg leave to withdraw the amendment.
Lord Paddick
My Lords, Amendment 125 is tabled in my name and that of my noble friend Lady Hamwee. I shall speak also to Amendment 126. In Schedule 5, Part 1 of Schedule 3 to the Police Reform Act 2000 is amended after sub–paragraph (6) by inserting a new sub-paragraph (6A) in relation to when a complaint against police must be recorded. It states that a complaint must be recorded if,
“at any time the complainant indicates a wish for the complaint to be recorded”.
Our amendment adds a requirement that the complainant must be asked whether he wishes the complaint to be recorded and states that unless he positively indicates that he does not wish the complaint to be recorded, it must be recorded.
From a wealth of personal experience in this area, I know that it is very easy for a complainant to be misled, albeit unintentionally, about whether his complaint will be formally recorded or even to be dissuaded from having a legitimate complaint recorded. The current wording gives the police or the local policing body, if it takes over responsibility, the ability not to record a complaint unless the complainant specifically asks that it be recorded. If the police inspector at the front counter tells the complainant not to worry but to leave it to him as he will have a word with the officer concerned and there is no specific request that the complaint be recorded, it could result in a complaint not being recorded when the complainant believes that it has been. This amendment is designed to reduce the chance of that happening.
Amendment 126 relates to a different issue: the conduct of chief officers of police. Part 3 of Schedule 5 is intended to require the referral of all complaints and matters concerning the conduct of chief officers to the Independent Police Complaints Commission by inserting new paragraphs into Part 3 of Schedule 3 to the Police Reform Act 2002. They provide new powers to enable the Secretary of State to specify in regulations that the IPCC must independently investigate all complaints, recordable conduct matters, and deaths and serious injury matters which relate to the conduct of a chief officer or the Deputy Commissioner of the Metropolitan Police.
Assistant commissioners of the Metropolitan Police wear the same badge of rank as, and are considered to be at least the equivalent of, chief constables or chief officers. In fact, they are paid at the highest rate of chief officer, with the exception of the commissioner and deputy commissioner of the Met, a salary equivalent to that of the chief constables of the Police Service of Northern Ireland, Police Scotland, the West Midlands Police and Greater Manchester Police. The assistant commissioner of the City of London Police wears the insignia of, and is considered equivalent to, a deputy chief officer and is outside the scope of this provision and the amendment. Will the Minister explain why assistant commissioners of the Metropolitan Police are not included with the deputy commissioner of the Metropolitan Police as officers complaints about whom must be referred to the IPCC? Our amendments would add assistant commissioners of the Metropolitan Police to the list of compulsory referrals. I beg to move.
Baroness Williams of Trafford
My Lords, I am grateful to the noble Lord, Lord Paddick, for explaining the purpose of the two amendments. The handling of complaints about the police must be customer-focused, simple to understand and transparent throughout. It is widely accepted that the current system is confusing, complicated and, in many cases, unclear. Through the reforms made in the Bill, we are ensuring that cases are dealt with quickly and effectively, for the benefit not just of the public but of officers who have done nothing wrong. Many forces already currently operate customer service teams through which all complaints about the force are filtered and whereby they try to resolve quality-of-service issues as soon as possible. The reforms in the Bill explicitly provide for that sort of model and try to make it as bureaucracy free and straightforward as appropriate.
The evidence is that this approach works. In Derbyshire in 2014-15, for example, 47% of issues raised about the force were handled outside of the formal complaints system. In Northumbria, where the triage team sits in the office of the police and crime commissioner, 36% of issues raised about the force in the first six months of 2014 were handled in this manner, with 92% of complainants happy with how their issue was handled—and this is increasing. The Government want to encourage forces and local policing bodies such as PCCs to adopt this more customer-focused approach and to resolve as many complaints as possible quickly, simply and to the complainant’s satisfaction through this route. Amendment 125 would require complainants explicitly to confirm that they were content for the force or PCC to seek a customer service solution to their issue outside of the formal complaints system. I put it to the noble Lord that this approach risks limiting what forces can achieve through informal resolution.
The Government believe that this confirmation process would lead to fewer issues being dealt with in this way and, contrary to the policy intent, increase the number dealt with in the formal system. We think it right that, unless the complainant has offered an alternative view or the complaint falls into one of the categories outlined in the legislation for why this form of resolution is inappropriate—I shall discuss the safeguards shortly—the force or PCC should first have the opportunity to draw on their experience to seek to resolve the matter through its own customer service processes. I reassure the noble Lord that the Bill includes extensive provisions to ensure the complainant is in control in this process and that forces can resolve issues outside of the complaints system only when it is appropriate to do so.
There is a clear expectation on PCCs, with their new explicit responsibility for oversight of the complaints system locally, as provided for in Clause 21, to ensure clear communication is provided to complainants about their rights when they make a complaint and how the process will work. This includes explaining that, if at any point a complainant wants his or her complaint to be recorded, it will be recorded. If the force pursues a customer service solution that falls short of the complainant’s view on what constitutes a satisfactory resolution, they can request that the complaint be recorded and handled formally. There is a statutory duty at the outset of a complaint to contact the complainant to understand how the complaint might be best resolved. Statutory guidance will also make clear that, 10 days after receipt of a complaint, it should be formally recorded, even if a customer service approach may have been proportionate. This is to ensure that this form of resolution is limited to only those issues that can be resolved quickly. Beyond that, if there is any indication that the complaint might result in disciplinary or criminal proceedings, or might meet the criteria for mandatory referral to the IPCC, it must be recorded.
Finally, there will also be a requirement on forces, to be detailed in regulations or secondary legislation, to keep some information on the issues they resolve outside of the formal complaints system—the name of the complainant, the issue, and how it was resolved. This will allow PCCs locally to scrutinise those data and HM Inspectorate of Constabulary to inspect the robustness of the decision-making of forces in deciding what is suitable for an informal resolution. Given these safeguards, we are satisfied that there is no need for an explicit requirement that the complainant must agree at the outset to an issue being resolved informally. Ultimately, the priority for most complainants is that their complaint is dealt with to their satisfaction and as quickly as possible.
I turn to Amendment 126. The complaints and discipline system is designed on the premise that, unless matters are of exceptional seriousness and sensitivity and are therefore referred to the IPCC, they should be dealt with—in accordance with the legislation—within the force’s chain of command. The exception is where there is no ultimate senior officer, such as would arise where a complaint is made against a chief constable. In these cases, most complaints are investigated by the IPCC but some may end up being investigated by chief constables of other forces. In his independent review of the police disciplinary system in England and Wales, Chip Chapman recommended that all such investigations should be undertaken by an independent body. The Government agree with this recommendation and that is why the Bill introduces a new regulation-making power that will require complaints regarding the conduct of chief officers to be referred to the IPCC to determine whether it should conduct an independent investigation or direct an investigation. However, although the rank of Assistant Commissioner of the Metropolitan Police Service is one of the highest ranks in England and Wales, there is no need to include it in the proposed measure because it can be reasonably expected that the commissioner or deputy commissioner will oversee any investigation. I hope that this clarifies the matter and that, on the basis of my explanation, the noble Lord will feel free to withdraw his amendment.
Lord Paddick
My Lords, I am grateful to the Minister. As far as Amendment 125 is concerned, I have no issue with a complainant being offered the option of informal resolution or a “customer service solution”—I never heard of that when I was in the police service; it shows how things have moved on—or a formal complaint. The problem we keep encountering in this House is the Government saying, “Well, it’s going to be be in statutory guidance and of course, in practice, if it’s a serious complaint or something that should be recorded, it will be recorded”. Unfortunately, the real world is not quite as ideal as the Minister makes out.
As far as Amendment 126 is concerned, I was with the noble Baroness until she said that matters needed to be referred to the IPCC where there was no ultimate senior officer. Quite clearly, in the case of the Deputy Commissioner of the Met, which is a specific rank for which any complaints have to be referred to the IPCC, there clearly is an ultimate senior officer: the Commissioner of the Met. Unfortunately, the explanation given by the noble Baroness does not help me to understand why the Deputy Commissioner of the Met is specifically mentioned.
Baroness Williams of Trafford
Perhaps I can explain a bit further. While new paragraph 5(1)(a) of Schedule 3 to the Police Reform Act 2002, inserted by Schedule 5 to the Bill, does cover the Deputy Commissioner of the Metropolitan Police Service, this is because, in the Police (Conduct) Regulations 2012, the deputy commissioner is treated in the same way as the commissioner. The Secretary of State is responsible for appointing the investigator of any conduct matter relating to both the commissioner and deputy commissioner. There is no mechanism to allow investigations into the deputy commissioner to be conducted internally. I hope that I have not confused the noble Lord further; I am just seeking to clarify the position.
Lord Bach
I hope that the noble Lord will forgive me for asking the noble Baroness about something that she said in her summing up a little while ago about the position of chief constables. She said that any complaint against them would automatically go to the IPCC. There is a view that says that this is slightly harsh and is not necessary and will mean more work for the IPCC in some cases than is necessary. What is the view of the IPCC on that proposal? It seems to some of us that the IPCC is overburdened and overworked. Does it really want the most trivial complaint against a chief constable—they do exist, it has to be said—to have to go to the IPCC without investigation? Is that not too extreme a measure?
Baroness Williams of Trafford
I think I said in my summing-up—if I missed it, I apologise—that most complaints are investigated by the IPCC but some may end up being investigated by chief constables from other forces. I am guessing that those will be the more low-level investigations. Therefore, not absolutely everything has to go to the IPCC. I do not know the IPCC’s view on this but Chip Chapman has recommended that all investigations should be undertaken by an independent body.
Lord Paddick
My Lords, in moving Amendment 126A, which is also in the name of my noble friend Lady Hamwee, I will speak to Amendment 165A in this group.
Clause 18 deals with sensitive information received by the IPCC and restrictions on disclosing that information. It amends Part 2 of the Police Reform Act 2002 by inserting new Clause 21A, subsection (3) of which defines sensitive information as including,
“information obtained from a government department which, at the time it is provided to the Commission or the paragraph 18 investigator, is identified by the department as information the disclosure of which may, in the opinion of the relevant authority … cause damage to national security, international relations or the economic interests of the United Kingdom or any part of the United Kingdom”.
When this House recently considered the Investigatory Powers Bill, where matters were considered to be related to the economic interests of the United Kingdom it was made explicit that these were only where the economic interests were directly linked to national security. Amendment 126A would insert the wording,
“so far as those interests are also relevant to the interests of national security”,
to make it explicit in this Bill as well as in the Investigatory Powers Bill. Amendment 165A makes a similar change to the term “economic interests” in Clause 35, which amends Schedule 4A to the Police Act 1996 in relation to the restriction on disclosure of sensitive information acquired by Her Majesty’s inspectors of constabulary. I beg to move.
Baroness Williams of Trafford
My Lords, Clause 18 increases the protections afforded to any sensitive information that is obtained by the Independent Police Complaints Commission in the course of its investigations or by a police or National Crime Agency investigator conducting an investigation under the direction of the IPCC. Clause 18 ensures that where the IPCC or investigator receives “sensitive information” it must not disclose that information without the consent of the “relevant authority”, as defined in the clause. To assist the IPCC or investigator in fulfilling this requirement, Clause 18 places a duty on the person providing the information to make the IPCC or investigator aware that the information is sensitive and to provide enough detail to permit the identification of the appropriate “relevant authority”. Clause 35 does likewise in respect of sensitive information received by Her Majesty’s Inspectorate of Constabulary.
“Sensitive information” in this context means: first, that provided by or that which relates to the security and intelligence services; secondly, information derived from interception; and thirdly, information provided by a government department which may, if disclosed, cause damage to national security, international relations or the economic interests of the country or any part of it. In such instances, the government department must identify it as such when it provides the information to the IPCC or investigator. Amendments 126A and 165A seek to narrow the third part of this definition by carving out information which may cause damage to the economic interests of the UK or part of the UK, unless there is a national security link. In effect, this would mean that the IPCC, investigator or HMIC would not need the relevant authority’s consent to disclose certain economically sensitive information that could, if disclosed or handled inappropriately, have a negative economic impact on the country. The drafting approach taken in the Bill in relation to the definition of “sensitive information” is not new. The drafting simply replicates the existing definition in paragraph 19ZD of Schedule 3 to the Police Reform Act 2002, which these provisions replace.
I stress that the primary purpose of Clauses 18 and 35 is not to prevent sensitive information being provided for legitimate reasons, such as to the CPS in the event of criminal proceedings, but, rather, to protect that information and ensure that it is handled appropriately. Simply because a piece of information falls under the definition of “sensitive information” in Clauses 18 or 35, the relevant authority cannot unreasonably withhold its consent to its disclosure; it is a matter of public law that decisions made by the relevant authorities must be both reasonable and rational. The Government are simply closing a gap to provide additional certainty and reassurance around the handling of sensitive information, not to prevent any greater disclosure than is absolutely necessary.
I hope that that has clarified the matter for the noble Lord and that he is content to withdraw his amendment.
Lord Paddick
I am very grateful to the Minister for that lengthy explanation, but it does not answer the question that I asked. The drafting may not be new but my understanding is that it is inconsistent with the Investigatory Powers Bill. We sought clarification and the Government agreed to put it on the face of the Bill that economic interests meant economic interests that are likely to impact on national security. It may be consistent with previous legislation but my understanding is that it is not consistent with the most recent legislation. That is the question that I hoped she would answer. I understand and accept everything that she has said; it is what is missing that is key.
Baroness Williams of Trafford
Perhaps I can provide further clarification, although I am not sure that it will clarify matters much better. Clause 18 talks about,
“the economic interests of the United Kingdom or any part of the United Kingdom”.
Clause 62 of the Investigatory Powers Bill says,
“in the interests of the economic well-being of the United Kingdom so far as those interests are also relevant to the interests of national security”.
There is a variation in the drafting of the two Bills because the provisions serve entirely different purposes. It is right that where authority is being sought to obtain communications data or to issue warrants for the purpose of the economic well-being of the UK, it should be done only where it is also relevant to the interests of national security. In Clause 18 of this Bill, the definition of “sensitive information” is intended to provide a safeguard to ensure that, whenever the IPCC handles particular types of information that originate from the security services or from government departments, it checks with the relevant authority before disclosing that information. The noble Lord does not look convinced but I hope that that has provided further clarification.
Lord Paddick
I need to improve my poker face skills. I am very grateful to the Minister for that explanation. I will read it to see whether I can get the answer to my question from what she has said, but at this stage I beg leave to withdraw the amendment.
Lord Kennedy of Southwark
My Lords, I, too, support the amendment moved by my noble friend Lord Rosser. I agree with the comments of the noble Lord, Lord Pannick. I very much support the police. They do a fantastic job for us and put their lives on the line every day to keep us safe.
The noble Lord is right when he talks about the need for an appropriate relationship between the media and the police, and how important that is. Equally, as my noble friend Lord Rosser said, there are obviously times when things go wrong. Clearly what happened at Hillsborough was an absolute tragedy. Can you imagine losing a loved one on that day and then having to endure the abuse in the media which has clearly now been shown not to be true? We should pay tribute to the steely determination of the Hillsborough families to get justice for their loved ones. They not only lost them but saw their names dragged through the mud.
It is important that we get to the point where the Government can clarify that they will proceed with the second stage of Leveson. There are some nuances between the statement we had from the previous Prime Minister and what we had from this Dispatch Box more recently. That difference might just be a few words which mean nothing at all, but we need to be clear that this should go ahead and that the Government are determined that any prosecution dealing with this will proceed.
Baroness Williams of Trafford
My Lords, I thank all noble Lords who contributed to this debate. I join the noble Lord, Lord Kennedy, in paying tribute to the victims of the Hillsborough disaster, which took place not far from where I live.
As the noble Lord, Lord Rosser, explained, this amendment would require the Prime Minister to establish what is colloquially referred to as the Leveson 2 inquiry into the relationships between the police and the media. It is worth noting that the drafting of this amendment goes beyond the terms of reference of the Leveson inquiry. Part 1 examined the culture, practices and ethics of the media; if it goes ahead, Part 2 is to examine wrongdoing in the press and the police, including the failure of the first police investigations into phone hacking and the implications for police and press relations.
This amendment would, for example, extend the remit of Leveson 2 to cover how the police investigated any complaints about their dealings with people connected to the media, and to the conduct of the CPS where complaints led to criminal investigations. This is well outside the scope of the current inquiry terms of Leveson 2. The Government are of the view that it is not necessary to legislate to require Leveson 2 as it is already set up under the Inquiries Act 2005. As the noble Lord will be aware, there are still ongoing criminal cases relevant to the subject matter of the Leveson inquiry. I welcome the fact that subsection (3) of the proposed new clause recognises the importance of not prejudicing those outstanding criminal proceedings. We have always been clear that these cases, including any appeals, must conclude before we consider part 2 of the inquiry. Given this, and the fact that we already have an appropriate legal framework in the Inquiries Act, it is not an appropriate matter for further legislation. There is an established process in place for taking this matter forward. On that basis, I hope the noble Lord will withdraw his amendment.
Lord Rosser
The Minister referred to subsection (3) in the amendment, which states:
“The inquiry may only start once the Secretary of State is satisfied that it would not prejudice any relevant ongoing legal cases”.
She also made reference to Leveson 2. Is it the Government’s position that once ongoing cases have been determined, the second stage of Leveson will take place, or—as I think the Minister said on behalf of the Government—that once outstanding cases have been resolved, the Government will only consider whether to proceed with the second stage of Leveson? Can the Minister clarify what she said? Are the Government saying that once outstanding cases have been resolved, Leveson 2 will take place, or is the Minister simply confirming what now appears to be the Government’s stance—unlike the promise that was given—that they will only consider whether to move to the second stage of Leveson?
Baroness Williams of Trafford
It is the latter. We will make a decision on Leveson 2 once the outstanding cases have been concluded.
Lord Rosser
Can the Minister say why the position has changed from the very clear and specific commitment given by the previous Prime Minister that the second stage of Leveson would take place?
Baroness Williams of Trafford
My Lords, both the current Prime Minister and the previous Prime Minister were very clear that all the cases of Leveson 1 should be concluded before Leveson 2 is considered.
Lord Rosser
Is the Minister saying on behalf of the Government that the previous Prime Minister did not give a commitment that the second stage of Leveson would take place? Is she really saying on behalf of the Government that the previous Prime Minister gave a commitment only to consider whether the second stage of Leveson should take place?
Baroness Williams of Trafford
My Lords, I would have to look at the exact words that the previous Prime Minister used before I contradicted the noble Lord. I certainly do not want to contradict the noble Lord. In terms of the process, both the current Prime Minister and the previous Prime Minister were clear that Leveson 2 could not proceed until Leveson 1 was concluded.
Lord Rosser
I find the Government’s response most unsatisfactory but at least the Minister has confirmed that there has been a complete shift in the Government’s stance. I will say what I think: the Government have now gone back on the very clear undertaking that was given by the previous Prime Minister that the second stage of Leveson would take place.
Baroness Williams of Trafford
My Lords, I hope I did not make it clear that we have gone back on the decision but we will make a decision on Leveson 2 once those outstanding cases have been concluded, which is rather different from going back on what was said.
Lord Rosser
The promise that was given was that there would be a second stage of Leveson. If the Government are now saying that once the outstanding cases are concluded they will only consider whether they should move to a second stage of Leveson, that is going back on the promise that was given. It is no longer specific. Does the Minister not agree?
Baroness Williams of Trafford
I think we are going to have to agree to differ that we have not gone back but we will consider it once those cases have concluded.
Lord Rosser
I accept that the Committee will not want me to continue with an argument over the difference in wording, but I will simply restate my stance that for the Government now to say that they will only be considering a second stage of Leveson is not what the previous Prime Minister said in the promise he gave to the victims of press intrusion. I strongly regret the answer that we have received from the Government today, but nevertheless beg leave to withdraw the amendment.
“(c) condition A, B or C is satisfied in relation to the person. (3AA) Condition A is that the person ceases to be a member of a police force after the allegation first comes to the attention of a person mentioned in subsection (3A)(a).(3AB) Condition B is that the person had ceased to be a member of a police force before the allegation first came to the attention of a person mentioned in subsection (3A)(a) but the period between the person having ceased to be a member of a police force and the allegation first coming to the attention of a person mentioned in subsection (3A)(a) does not exceed the period specified in regulations under this section.(3AC) Condition C is that—(a) the person had ceased to be a member of a police force before the allegation first came to the attention of a person mentioned in subsection (3A)(a),(b) the period between the person having ceased to be a member of a police force and the allegation first coming to the attention of a person mentioned in subsection (3A)(a) exceeds the period specified for the purposes of condition B, and(c) the alleged misconduct, inefficiency or ineffectiveness is such that, if proved, the person could have been dealt with by dismissal if the person had still been a member of a police force.(3AD) Regulations made by virtue of subsection (3A) as they apply in a case where condition C is satisfied in relation to a person must provide that disciplinary proceedings may be taken against the person in respect of the alleged misconduct, inefficiency or ineffectiveness only if the Independent Police Complaints Commission determines that taking such proceedings would be reasonable and proportionate having regard to—(a) the seriousness of the alleged misconduct, inefficiency or ineffectiveness,(b) the impact of the allegation on public confidence in the police, and(c) the public interest.(3AE) Regulations made by virtue of subsection (3A) may make provision about matters to be taken into account by the Independent Police Complaints Commission for the purposes of subsection (3AD)(a) to (c).”
Baroness Williams of Trafford
My Lords, the important amendments in this group relate to the circumstances in which disciplinary action may be taken against former police officers and former special constables.
Clause 28 will allow for the extension of the disciplinary regime to former officers where an allegation arose before they resigned or retired, or arose within a period of time following their resignation or retirement. The relevant period will be specified in regulations and we have made it clear that we intend to specify 12 months. On Report in the Commons, the then Policing Minister undertook to bring forward amendments which would set aside the 12-month time limit in exceptional circumstances. The government amendments in this group make good on that commitment.
I start by recognising, as the whole House does, that the vast majority of police officers and special constables conduct themselves with absolute integrity. They serve our communities with distinction and loyalty throughout their careers and, in doing so, demonstrate the values set out in the College of Policing’s Code of Ethics on standards of professional behaviour. Nevertheless, and regrettably, a small minority do not meet the high standards of professionalism that the public rightly expect. The public also expect those suspected of serious misconduct to be subject to formal disciplinary proceedings and that, where officers are in the wrong, they are held to account for their actions. Indeed, that is what both the public, and the majority of decent, dedicated and hard-working police officers in this country deserve.
The Bill already contains significant reforms to increase the accountability of former police officers. As I have indicated, the provisions in Clause 28, and the accompanying regulations, will ensure that where an allegation that could have led to dismissal had the officer still been serving comes to the attention of a force within 12 months of an officer’s resignation or retirement, or where an individual resigns while an investigation is ongoing, this can be investigated or continue to be investigated and that, where appropriate, disciplinary action can be taken to hold the officer to account for serious wrongdoing. Where a case is proven, the new police barred list will ensure that the individual concerned is prevented from future service in policing.
These are important steps, but we need to go further, particularly in the wake of high-profile cases where there is a perception that retired officers suspected of committing the most serious acts of gross misconduct have not been held to account where such acts cause serious harm to public trust and confidence in policing. In these cases, which can emerge long after individuals have left policing, there is more to be done to prevent the perception that officers who have left policing are able to evade accountability. We recognise the strength of feeling in relation to such cases and, in particular, the public concern that police officers who commit the most serious acts of wrongdoing should be held to account for their actions. The Government also recognise the importance of ensuring that the measures introduced are proportionate for policing as a whole and fair for individual officers.
The amendments that stand in my name achieve this important principle of accountability and do so in a way that is robust, fair and proportionate. In effect, these create the new exceptional circumstances test, which will be applied by the IPCC and, in due course, by the director general of the Office for Police Conduct, following the reforms to the IPCC. In our view it is right that the decision as to whether the exceptional circumstances test is met is taken by an organisation independent of government and free from any politicised decision-making. The IPCC carries out its role and functions in a way that is well established within the sector as the independent watchdog for policing.
It would be only in those cases where this test is met and the IPCC has determined that it would be reasonable and proportionate to do so that disciplinary proceedings could be instigated. In deciding whether the exceptional circumstances test is met, the IPCC will have to have regard to the seriousness of the alleged misconduct, inefficiency or ineffectiveness, the impact of the allegation on public confidence in the police and the public interest. We will set out in regulations the matters to be taken into account by the IPCC in making such a determination.
This will mean that disciplinary proceedings can be brought in relation to the most serious matters which are considered of an exceptional nature where serious and lasting harm has been caused to public confidence in policing as a result of the wrongdoing. As with the original provisions set out in Clause 28, the exceptional circumstances test will not operate retrospectively. As such, these provisions will apply only to those officers who are serving on or after the date that they come into force. Where there is a finding that the former officer would have been dismissed at a subsequent misconduct hearing, the individual will be barred from future service in police and other law-enforcement agencies.
Amendment 138 gives effect to these changes in respect of former police officers, Amendment 140 in respect of former special constables and Amendment 144 in respect of former MoD police officers. Amendments 139, 141 and 145 clarify that, in cases where the investigation or disciplinary proceedings concerning the former officer, special constable or member of the Ministry of Defence Police arise from a decision to reinvestigate a matter previously closed, this can lead to disciplinary proceedings only in cases which either meet the exceptional circumstances test or where the reinvestigation commences within the specified time limit. Amendments 160, 161 and 162 are consequential on the main amendments and the changes to the governance of the IPCC. They provide that, in future, these determinations will be made by the director general of the Office for Police Conduct.
Amendments 149, 150 and 151 clarify the operation of the police advisory list. The amendment makes it clear that the duty on chief officers and others to report officers to the College of Policing applies only in the case of officers who at the time of leaving the force are under active investigation. The amendments will mean that in circumstances where an officer was previously under investigation while serving but the investigation concluded with no disciplinary proceedings being brought and subsequently the officer leaves the force, the duty to report the officer to the college shall not apply. This eliminates potential ambiguity in the legislation and makes it clear that reports are required only when an individual is subject to an ongoing investigation.
Amendments 142 and 143, in the name of the noble Lord, Lord Rosser, are directed at the same end as the key government amendments in this group. I hope that, having heard my explanation of the government amendments, the noble Lord is satisfied that they deliver a similar outcome. I commend the government amendments to the Committee and I beg to move Amendment 138.
Lord Paddick
My Lords, we broadly welcome the government amendments in this group and, subject to what the noble Lord, Lord Kennedy of Southwark, has to say on the Labour amendments, they seem to cover similar ground.
I have some questions, but I agree with the Minister that the overwhelming majority of police officers are honest, decent people who want only to do their best to protect and serve the public. However, if an officer has left the service and, within 12 months, an investigation takes place which, if the officer was still serving, could have resulted in that officer being sacked, what sanctions would be available against such an officer, other than their name being added to the banned list?
I understand that “exceptional circumstances”, in terms of the most serious acts of wrongdoing, needs to be defined by an independent body. We will come later on in our considerations to talk about the Independent Police Complaints Commission and whether it is truly independent. It is slightly concerning that one criterion that the IPCC would have to look at, in deciding what action to take, is the impact on public trust and confidence in the police, because it could take the decision that the impact of exposing serious misconduct through an investigation would have such a detrimental impact on that trust and confidence that it would use it as a reason not to investigate rather than an obligation to do so. So we have to be very careful about the grounds on which the IPCC should or should not consider something to be exceptional wrongdoing.
Clearly, many members of the public will be very concerned, or disappointed, that the legislation will not be retrospective, particularly with regard to those involved in the aftermath of the Hillsborough disaster. The concern is not with the rank and file officers in that case; the concern is with what happened in the aftermath, and the leadership exercised at Hillsborough. However, as I say, we are generally supportive of the government amendments.
Lord Blair of Boughton
My Lords, I also apologise for not joining this particular part of the debate earlier. I absolutely agree with and amplify what my noble friend Lord Condon has said. Part of the difficulty for some of the most senior officers in the system, which my noble friend and I and the noble Lord, Lord Paddick, obviously are—we therefore have to declare interests to your Lordships—is that you end up during your period of service, particularly the period of top command, with cases that are headlines for years and which are investigated and investigated. It would mislead the House to say that my noble friend Lord Condon and I have not spoken about it—we have, although not in the Chamber. I urge those putting forward Amendment 142, the Government and the Opposition, to keep the words “necessary and proportionate” in mind, otherwise there is no end to some of these cases. This is a matter that our legislature needs to think about as it brings forward this kind of amendment. I agree absolutely with my noble friend, and I am sure that I speak for other noble Lords who have been senior police officers, that this is the right way forward.
Baroness Williams of Trafford
My Lords, I thank the noble Lords who have responded to both the government amendments and the other amendments. The noble Lord, Lord Paddick, talked about the ultimate sanction for someone who had retired. The ultimate sanction is that the officer is found to have committed gross misconduct at a public misconduct hearing, with the panel finding that the officer would have been dismissed, and, therefore, as a consequence, should be added to the police barred list. Inclusion on the police barred list would see the officer banned from any future service in policing and added to the published list for a period of five years. Perhaps the noble Lord was referring to a police officer in this situation who had retired anyway and had no intention of going back into the police. However, if I had served 40 years in an organisation, such a judgment would be a pretty awful outcome for my career. Therefore, although there would be no actual effect on the person’s life, the ultimate judgment of misconduct in public office would fulfil that purpose.
Lord Paddick
I am grateful to the noble Baroness for giving way but my understanding is that, in the past at least, it has been possible in exceptional circumstances for a disciplinary authority to reduce the pension, for example, of somebody who is dismissed or forced to resign from the police service. Will the noble Baroness write to me explaining whether that sort of sanction might be available?
Baroness Williams of Trafford
I will certainly write to the noble Lord. I can envisage such a situation where somebody was sanctioned before they retired. In fact, I have the answer—the cavalry arrived in the nick of time. The measure will not directly impact an officer’s pension. However, if criminal activity is identified following an investigation and the officer is convicted, it will be open to the force, as now, to apply for some of the officer’s pension to be forfeited.
The noble Lord, Lord Kennedy, was disappointed that the measure was not retrospective in circumstances such as Hillsborough. I think that most noble Lords would share that disappointment. However, we make laws in line with established principles. It is in line with established principles that new laws generally should not be retrospective. They will apply only to officers who are serving when the relevant provisions are commenced. These matters do not in any way affect criminal investigations and prosecutions which, as now, can be pursued at any stage. So, yes, it is disappointing, but it is in line with established practice.
The noble Lord, Lord Kennedy, asked about the exceptional circumstances. I repeat that the IPCC will have regard to the seriousness of the alleged misconduct, the inefficiency or the ineffectiveness, the impact of the allegation on public confidence in the police and the public interest. I thank the noble Lords, Lord Blair and Lord Condon, for making the very important point about the necessity and proportionality of these measures.
The period specified”
“(c) condition A, B or C is satisfied in relation to the person. (1BA) Condition A is that the person ceases to be a member of the Ministry of Defence Police after the allegation first comes to the attention of a person mentioned in subsection (1B)(a).(1BB) Condition B is that the person had ceased to be a member of the Ministry of Defence Police before the allegation first came to the attention of a person mentioned in subsection (1B)(a) but the period between the person having ceased to be a member of the Ministry of Defence Police and the allegation first coming to the attention of a person mentioned in subsection (1B)(a) does not exceed the period specified in regulations under this section.(1BC) Condition C is that—(a) the person had ceased to be a member of the Ministry of Defence Police before the allegation first came to the attention of a person mentioned in subsection (1B)(a),(b) the period between the person having ceased to be a member of the Ministry of Defence Police and the allegation first coming to the attention of a person mentioned in subsection (1B)(a) exceeds the period specified for the purposes of condition B, and(c) the alleged misconduct, inefficiency or ineffectiveness is such that, if proved, the person could have been dealt with by dismissal if the person had still been a member of the Ministry of Defence Police.(1BD) Regulations made by virtue of subsection (1B) as they apply in a case where condition C is satisfied in relation to a person must provide that disciplinary proceedings may be taken against the person in respect of the alleged misconduct, inefficiency or ineffectiveness only if the Independent Police Complaints Commission determines that taking such proceedings would be reasonable and proportionate having regard to—(a) the seriousness of the alleged misconduct, inefficiency or ineffectiveness,(b) the impact of the allegation on public confidence in the police, and(c) the public interest.(1BE) Regulations made by virtue of subsection (1B) may make provision about matters to be taken into account by the Independent Police Complaints Commission for the purposes of subsection (1BD)(a) to (c).”
Lord Bach
My Lords, surely this is just a matter of common sense. Can we not cut through everything that has been said? I absolutely support what my noble friend Lord Rosser, and the noble Lords, Lord Condon, and Lord Paddick, have said—it is just a matter of common sense. Anyone who has been in government knows that sometimes Governments hold up the most obvious and common-sense approach for no apparent reason at all—we did it, and I fear this may be an example of the Minister’s Government doing it. It is quite clear that the word “independent” should be included. It would make it much clearer to the general public. Surely this is something that the noble Baroness can take away and consider, and perhaps come back and agree that it is just pure common sense.
Baroness Williams of Trafford
I thank the noble Lords who have spoken so clearly on this amendment, particularly the noble Lord, Lord Bach. I will outline why the Government want to change the name. The aim is to ensure that the organisation has a corporate structure and governance arrangements that enable it to carry out efficiently and effectively its expanded role in the police complaints and discipline systems.
My noble friend Lord Attlee pointed out that not every independent body has the word “independent” in its title—he mentioned Ofgem and Ofcom, and Ofsted is another example.
I understand that the body’s constitution alone does not guarantee public trust in its independence, but neither necessarily does incorporating the word “independent” in its title. That said, I understand the contrary argument, put forward by the noble Lords, Lord Rosser and Lord Condon, that adding the word “independent” to the name might change some people’s perceptions and encourage them to come forward if they have concerns about police conduct. Therefore, although I remain to be persuaded of the case for the amendments, I will reflect between now and Report on the points that noble Lords made so well in this short debate. On that basis, I invite the noble Lord to withdraw his amendment.
Lord Rosser
I thank the Minister for her response and thank all noble Lords who participated in this short debate. I note that the Minister, on behalf of the Government, is not committing herself to agree to the change, but she agreed to reflect on the matter and on what has been said this afternoon and perhaps come back to it on Report. I thank her for that and beg leave to withdraw the amendment.
Baroness Hamwee (LD)
My Lords, the underlying thinking here ties in quite closely with the debate on the previous group, and I am not sure that anyone said then that losing the word “Independent” from the title was particularly significant because of the very fact that it will be a change—more significant than if one was creating a new organisation and not having the word in its title from the start. That thought is part of the reason for our Amendment 158A in this group, which in fact the noble Lord, Lord Rosser, has explained to the Committee. It would also mark a change so that all the members of the body, if I can use a neutral term, could not be appointed from those who are—summarising around a third of a page—cops or ex-cops. That change would be a significant one, and again it is about the perception of independence as well as actual independence. We may hear that there are some practical reasons, or reasons of experience, that has caused the Government to move in this direction in their decisions on the structure and this part of the body’s governance, but I do not think that it is a good direction to go in.
As regards Amendments 157 and 158, in our view it would be wise to have a geographic spread, but if there is going to be a truly independent “Office”, it should be allowed to sort out its own arrangements, although anyone with any sense in the organisation would want to be sure that the regions of England, as well as the nation of Wales, are heard loudly and clearly.
Baroness Williams of Trafford
My Lords, the Bill provides for the existing commission to be replaced by a single executive head, the director-general, and for corporate governance to be provided by a unitary board with a majority of non-executives. These reforms address the recognised weaknesses of the existing commission model, under which most of the commissioners are engaged in operational activity and in the governance of the organisation. This has resulted in blurred lines of accountability. The commission itself recognises the need for change and there was clear support for the new director-general model in the response to the public consultation on the proposed reforms.
As the single executive head, the director-general will be accountable for the efficiency and effectiveness of the reformed organisation. That is why the legislation provides the director-general with the flexibility to determine the executive structure of the organisation, including the composition of his or her senior team. The director-general needs the freedom to shape the organisation in the way they see best to deliver high-quality, timely and independent investigations into police conduct, a point made by the noble Baroness, Lady Hamwee. Amendment 157 would tie the hands of the director-general as it would require the corporate structure of the Office for Police Conduct to include a minimum of four regional directors plus a national director for Wales.
The Government expect the Office for Police Conduct to have a regional presence, as the IPCC does, but as with the IPCC now and since its creation more than a decade ago, the Government do not see the need to legislate for a regional structure. A requirement for a specified minimum number of regional and national director posts would limit the director-general’s future flexibility to respond to the changing needs and circumstances of the organisation. In addition, this particular amendment would put regional directors on the board. That would undermine the core strengths of the new governance model and risk replicating the blurred lines of accountability within the existing commission structure.
I turn now to Amendments 158 and 158A, which relate to positions in the Office for Police Conduct that should not be open to those who have worked for the police. The Government recognise that public confidence in the independence of the organisation relies on certain key decision-making roles not being open to those with a police background. That is why there will be an absolute bar on the director-general from ever having worked for the police. We do not think that there should be statutory restrictions on those who are members of the office—in effect, the board of the reformed organisation. The core functions of the office are set out clearly in the Bill and include ensuring the good governance and financial management of the organisation. These functions are quite distinct from the functions of the director-general. The director-general, as the single executive head, will be solely accountable for all casework and investigation decisions, not the board. It is not right that a suitably qualified individual could not be appointed to a corporate governance role as a member of the board simply because he or she once worked as a police civilian, perhaps for just a short period many years previously.
With regard to employee roles, the Bill provides the director-general with an express power to designate functions and roles that are restricted, including senior operational and public-facing positions. The power means that the director-general will be able to ensure that the OPC has the right mix of staff, including those with valuable policing experience, while also having the power to place restrictions to help bolster public confidence in the OPC’s impartiality and independence. However, as I said, it is important that the director-general can secure public confidence in the work of the Office for Police Conduct. The Bill recognises the need for transparency in the director-general’s decision-making and places a requirement on the director-general to publish a statement of policy on the exercise of these particular powers of recruitment.
To conclude, we believe the provisions in the Bill strike the right balance by placing core aspects of the OPC’s governance in the legislation while ensuring that there is flexibility and transparency in appointments. On that note, I hope the noble Lords, Lord Rosser and Lord Paddick, and the noble Baroness, Lady Hamwee, are reassured of the Government’s intentions and that they will be content not to press their amendments.
Lord Rosser
Can I ask the Minister whether the Government accept that, under the Bill’s terms, as far as the public face of the organisation and its very senior decision-makers are concerned, we could end up with a situation where only one, namely the director-general, has not previously worked for the police?
Baroness Williams of Trafford
My Lords, I think what I outlined in my speech to noble Lords was that the director-general would need to outline how he proposes the board will work and his position in it. The Bill recognises the need for transparency, as the noble Lord pointed out. It places a requirement on the director-general to publish a statement of policy on the exercise of these particular powers of recruitment. I imagine that if he decided to have a board full of former police officers he would want to explain why, in his particular case, this was necessary.
Baroness Hamwee
Would the Minister accept that the bit the public will be aware of—like the change from an organisation with the term “independent” in its title—is the change from a board structure where there is a bar on all members of the board having been police officers or involved with the police service to a situation where there need not be, not the detail of the report of the director-general explaining the fine detail of their thinking? It is a much broader issue than the Government are acknowledging.
Lord Rosser
I thank noble Lords who have participated in the debate, and the Minister for her response setting out what the Government’s position is and the thinking behind the Government’s wording in the Bill. Issues have been highlighted in the debate about the potential implications and the extent to which one could end up in a situation where very few people indeed in the public face of the organisation and its senior decision-makers had not worked for the police, since the terms of the Bill do not preclude that happening. It precludes it only as far as the director-general is concerned.
Baroness Williams of Trafford
I profusely apologise for intervening, but I thought I would give the noble Lord the full information I have before me. There is a backstop power for the Secretary of State to set out in regulations restrictions on which posts can be held by former police. Perhaps that is a conversation to be had. It would be very unusual for the director-general to pack his or her board full of ex-police officers, but there is this backstop power for the Secretary of State. I apologise for intervening on the noble Lord.
Lord Paddick
My Lords, Amendment 164A is in my name and that of my noble friend Lady Hamwee. I will also speak to the other amendment in the group, Amendment 164B. Clause 35 addresses the powers of inspectors—that is, Her Majesty’s Inspectorate of Constabulary—to obtain information, to secure access to police premises, and other matters by substituting paragraphs 6A and 6B in Schedule 4A to the Police Act 1996. New paragraph 6B talks about the powers of inspectors to obtain access to police premises and paragraph 6B(1)(a)(iii) talks about who can be served with a notice requiring them to allow access to premises, including,
“a person providing services, in pursuance of contractual arrangements (but without being employed by a chief officer of police of the police force or its local policing body)”.
The amendment deletes “but” and replaces it with “with or”, so it would cover a person who is employed by the police, as well as someone who is not. Amendment 164B makes a similar change to who can appeal against such a notice. I beg to move.
Baroness Williams of Trafford
My Lords, the amendment presumably aims to ensure that inspectors have comprehensive access to premises used for policing purposes, and that Her Majesty’s Inspectorate of Constabulary is able to inspect the totality of policing in a landscape where functions are increasingly delivered by multiple agencies. The noble Lord nods; I thought that was probably the aim. The Government wholeheartedly agree with that aim, which is the purpose of this Bill’s inspection provisions.
The amendment does not actually further that aim. The current wording already ensures that inspectors have access to any premises used in the delivery of policing functions, whether they are occupied by the force itself, the local policing body, another emergency service acting in collaboration with the force or a private company carrying out the activities of a force under a contract. I put it to the noble Lord that these amendments would not, in practice, extend the categories of premises to which an inspector had access. Any premises occupied for the purposes of a police force by persons employed under contract by the chief officer are already captured in these provisions. That being the case, I think the noble Lord would agree that the amendments were unnecessary. I invite him to withdraw the amendment.
Lord Paddick
I am grateful to the Minister for that explanation. Clearly the amendment is not designed to extend the category of premises that HMIC would be able to access. It is about extending the category of person upon which a notice could be served. It appears to us that the wording in the Bill is restrictive and needs to be broadened. We are trying to broaden the category of person on which the notice can be served.
Baroness Williams of Trafford
It might be helpful to the noble Lord to hear that this is covered by government Amendment 166, which ensures that any other person who is,
“by virtue of any enactment … carrying out the activities of”,
a police force is subject to inspection.
Lord Paddick
I am grateful for that second explanation and will consider it carefully. In the interim, I beg leave to withdraw the amendment.
“(g) any other person who is, by virtue of any enactment, carrying out any of the activities of a police force.”
“(d) any other persons if, or to the extent that, they are engaged by virtue of any enactment in carrying out the activities of the police force.”
Lord Deben (Con)
My Lords, this has been a very useful discussion. I find myself slightly closer to the Government’s position than that of the noble Lord who spoke from the other side, but I have considerable sympathy with his argument.
There is a terribly difficult problem, which I hope my noble friend will address, of confusion about who these people are, who is in which category, and the like. I happen to have a close relative who sought to be a special constable and discovered that the difficulties of becoming a special constable are really quite considerable. I hope that my noble friend can help me by explaining that this is not a way of getting out of the difficulties of the one by producing something different, which would mean that we are not facing up to some really fundamental issues about how people become special constables and whether we are making it easy for people who would like to make this contribution.
What the debate has really raised are perfectly genuine concerns that this may not quite have been thought through in the way we would like it to be. As it is such a delicate issue, I hope it could be taken rather more widely than in the actual amendment, by thinking a bit about the way in which the public will understand the distinction between these categories. This bit of additional power given to people who decide to volunteer shines a light on the problem and on the confusion which I am not sure has actually been overcome in the debates that we have had so far.
Baroness Williams of Trafford
My Lords, I thank all noble Lords who have contributed to this debate. It is of course very difficult not to stray into other amendments when talking about something in the round. I thank my noble friend Lady Redfern for laying out her experience of using volunteer police officers in Lincolnshire. It must be one of the first areas in the country to do that, so it was very useful to have that information in the round. In thinking about my noble friend Lord Deben’s point about the importance of the public knowing the difference between a volunteer and a special police constable, or indeed a fully trained officer, I asked myself whether I wondered, when my children were at school, what the difference was between the teaching assistant and the fully trained teacher. In fact, as long as they both contributed to my child’s education, I was not that much bothered—but it may be an issue for some people and I recognise the point that my noble friend makes.
Amendment 167 returns to an issue that was debated at length in the House of Commons: namely, whether it is ever right for designated members of police staff, or the new category of designated volunteers, to carry these particular sprays for defensive purposes. The noble Lord, Lord Rosser, has also given notice that he intends to oppose the question that Clause 38 should stand part of the Bill.
I hope that I can assist the Committee by first explaining what Clause 38 seeks to achieve. It makes necessary consequential amendments to the Firearms Act 1968 to ensure that police volunteers come within the definition of “civilian officers” for the purposes of that Act. The effect of this is that they do not then need a firearms certificate or authorisation under either Section 1 or Section 5 of the 1968 Act in order to carry a defensive spray. The clause simply puts community support volunteers and policing support volunteers in the same position in relation to defensive sprays that police officers and police civilian staff are currently in.
Clause 37(6) makes it clear that police staff and volunteers cannot use other weapons within the meaning of the Firearms Act 1968 unless the Secretary of State makes regulations under new Section 38(9B)(b) of the Police Reform Act 2002. Any such regulations would be subject to the affirmative procedure.
Lord Paddick
To clarify what the noble Baroness has just said, could the Secretary of State, by regulations, authorise police volunteers to carry guns, if they were so minded?
Baroness Williams of Trafford
My Lords, I will repeat that Clause 37(6) makes it clear that police staff and volunteers cannot use other weapons within the meaning of the Firearms Act 1968 unless the Secretary of State makes regulations under new Section 38(9B)(b). Yes, it does read like that—but, as the law currently covers this, it is only trained police officers within London who can be armed.
Lord Paddick
Yes, but I think the Minister has just agreed with me that, through regulations, the Secretary of State could allow police volunteers to be given guns without the need for a firearms certificate. That is slightly worrying.
Baroness Williams of Trafford
My Lords, I am pretty much as certain as I ever can be about anything that it is not the intention of the Bill to allow volunteers to carry guns—but I suspect that I need to provide some further clarification, and hopefully I will do that.
Earl Attlee
My Lords, perhaps I can help my noble friend. It may be that the provision is to allow different types of, say, pepper spray, because the legislation itself is quite specific about which chemicals can be used. There may be future developments in chemicals, and I suspect that the provision in the Bill allows the Secretary of State to specify them. It would be helpful if my noble friend could constrain the Secretary of State by saying that they will never authorise civilian volunteers to have firearms—except perhaps to move them around in police premises.
Baroness Williams of Trafford
It is pretty much on the tip of my tongue to say that, but I think that noble Lords know exactly what the Government’s intentions are.
Lord Harris of Haringey
I think the Minister has unfortunately raised a large red herring, which will certainly prove to be one if she gets the clarification that she wants on it. However, although the intent may not be to allow this, the current wording suggests that it might be used in that way. The specific issue is that a very clear line is being crossed by saying that volunteers can be authorised to use sprays—pepper sprays or whatever else—and that is the distinction. Although the clause may or may not give the Secretary of State powers to increase the list—the Minister way be about to get the answer—or even to specify particular pepper sprays, the concern is about the use of the spray in the first place and whether it is right that a volunteer, despite not having gone through all the other training which is necessary, is able to do that.
Baroness Williams of Trafford
Yes, I totally take the noble Lord’s point, and I am hoping the clarification will arrive from my left in the next five minutes.
As we have made clear in our delegated powers memorandum, this is intended as a future-proofing provision to cover any self-defence equipment not yet invented—and I am not talking about guns. We are also taking the opportunity to make it explicit in the 1968 Act that special constables are members of a police force for the purposes of that Act, and therefore similarly do not require a certificate or authorisation under the 1968 Act when equipped with a defensive spray. This will avoid any doubt being created by the insertion of a specific reference to policing support and community support volunteers within the meaning of “Crown servant” in the Firearms Act.
I turn next to the various points that have been raised in relation to equipping staff.
Lord Deben
I did not quite understand the bit about things that have not yet been invented. The reason I did not understand is that I am not sure that I would be very happy about giving powers to give permission for the use of something that has not been invented, because I do not know whether what has not been invented would be something that I would like to give people the powers to use, if you see what I mean. This is a very dangerous route down which to go.
Lord Paddick
I do not want to prolong the agony, but another aspect of this is that members of the public should be reasonably sure about what level of force they are going to encounter from whom. As I say, special constables now are virtually indistinguishable from regular police officers; if a special constable decides to use a defensive spray, that will not come as a shock to the member of the public. In terms of the way that the member of the public interacts with a police officer or special constable, they may or may not use force against that individual on the basis of what they anticipate the reaction of that person to be, or the ability of the person to respond to it. When it comes to a volunteer police community support officer, who does all the wonderful things that the Minister said earlier, I think it is going to be a bit of a shock, and an unreasonable one, to expect such a volunteer to respond with an incapacitant spray.
Baroness Williams of Trafford
My Lords, may I perhaps make a bit of progress on what I was already outlining? Much of what I am going to say answers the questions that noble Lords are asking.
The argument has been put forward that issuing PCSOs with defensive equipment is somehow incompatible with those officers’ primary role, which is to engage with members of the public in their communities. If we examine the way in which different forces equip their PCSOs, we can see that there are different approaches. Some forces equip their PCSOs with body armour and some do not, and the same is true of handcuffs, yet all forces use their PCSOs as the key point of engagement with their local communities. I was one of the people who was very sceptical about PCSOs, but they now have a lot of respect in communities across the country. If the prevailing security situation were such that a particular chief officer considered it necessary to issue their PCSOs with defensive sprays—I emphasise to noble Lords that none has to date—the Government consider that they should be able to, subject of course to the test of suitability, capability and training already set out in the Police Reform Act 2002.
It has also been argued that it is impractical to train volunteers in the use of defensive sprays, to which our response has two limbs. First, if an officer or volunteer has not been properly trained in the use of any power, the law simply does not allow a chief officer to designate that officer or volunteer with the power in question. Section 38(4) of the Police Reform Act 2002, as amended by Clause 37 of the Bill, already states that a chief officer cannot designate the person with a power unless they are satisfied that they are both suitable and capable of exercising the power and that they have received adequate training in the exercise and performance of the powers and duties to be conferred.
However, we do not consider that it is impractical to train volunteers in the use of defensive sprays. On 31 March this year, there were over 16,000 special constables in the 43 police forces in England and Wales and the British Transport Police, all of whom have the full powers of a police officer, performed on a volunteer basis for at least 12 hours per month.
I was grateful to listen to the noble Lord, Lord Paddick, at Second Reading, on his strong support for members of the special constabulary, with whom he will definitely have worked during his career policing. As he said, special constables receive extensive training and have all the powers of a regular constable. Many of those specials patrol on a regular basis with their full-time colleagues and they carry identical equipment, including body armour, batons and defensive sprays—again, in exactly the way as their full-time colleagues. It is therefore patently not the case that it is impractical to train volunteers in the use of such equipment. Any volunteer who did not want to carry such a spray, could not undertake the training or was not suitable would not be designated by their chief to carry and use it, even if others in their force were so designated.
Lord Harris of Haringey
But we might drift off the point. Could the Minister clarify why, rather than encouraging more people to go through the special constable route where they take the affirmation about their role and everything else, the Government are suggesting instead that there be a volunteer category that would not be the same as special constables but would have exactly the same access to equipment?
Lord Paddick
On a very similar point, the Minister just said that while chief constables have the power to issue incapacitant spray to PCSOs, no chief constable has done so to date. Why do the Government now feel it necessary to give chief constables the power to give incapacitant spray to volunteer community support officers?
Baroness Williams of Trafford
It is simply to give chief officers the flexibility to use their workforce and their volunteer force to the best end in fighting crime and reassuring communities. The noble Lord, Lord Harris, asks why, for example, a volunteer cannot simply become a special constable. There are many reasons why you might want to be a volunteer rather than a special constable. We are focused today on the deployment of PAVA and CS spray, but actually a volunteer could be a police volunteer. They could be a retired accountant, for example, or a retired lawyer, and may want to bring their skills to the police but may not want to volunteer for any more than that, or indeed become a special constable.
Baroness Williams of Trafford
My Lords, I am talking about the powers that volunteers may have in the round. There may be myriad different powers, not just the one that we are focusing on.
The noble Lord, Lord Kennedy, talked about policing on the cheap. I remember that when PCSOs were introduced, I said, “Oh, it’s only policing on the cheap”, but actually I have seen the really good benefit that they have brought. As my noble friend Lady Redfern says, they are not a replacement for the police force but a really valuable extra on the streets of Lincolnshire, providing crime fighting for the police.
On that very lengthy note, and thanking all noble Lords for their interventions, I wonder if the noble Lord, Lord Kennedy, would like to withdraw his amendment.
Lord Kennedy of Southwark
My Lords, this has been an interesting debate—quite an extraordinary debate really, has it not? We talked about helpful PCSOs and the work they do helping communities; we got on to CS spray and other sprays. They may be issued with guns—we are not quite sure. We were then told that the Government also want to take a power in case things are invented in future. I am pleased I tabled the amendment: it has certainly dragged a few things out from the Government for us. I think we will have to come back to these issues on Report. I hope that the Government will look at our debate, because there are one or two loose ends hanging there.
The most important contribution came from the noble Lords, Lord Paddick and Lord Condon. Both of them have been very senior police officers, and if they are expressing concerns, the House should listen very carefully. It is important when we grant any new powers that we make sure that people are trained properly to use them. As we heard, these sprays can kill people, which is really serious. We must worry about putting anything in someone’s hands that can do that.
I also want to pay tribute to volunteer PCSOs, who do a fantastic job as the noble Baroness, Lady Redfern, outlined. I will leave it there, but I am sure we will come back to these issues on Report. I beg leave to withdraw the amendment.