Police (Detention and Bail) Bill

Julian Huppert Excerpts

Thursday 7th July 2011 Commons Chamber

[Mrs May]

The right hon. Lady is asking me to talk about a Bill that is entirely separate from the one we are addressing today. As I think she knows, in replacing control orders with the terrorism prevention and investigation measures—TPIMs—we have put together a package that includes both the measure itself and increased funds available to the Security Service and the police for surveillance. That is the basis on which we are going forward with that measure and that Bill.

The Bill before us today provides that the amendments to PACE should have retrospective effect. That means that they are deemed always to have had effect, despite the High Court’s judgment in the Hookway case.

[Dr Julian Huppert (Cambridge) (LD)]

I support the Bill, but the purist in me is slightly anxious about the concept of retrospective legislation. Will the Home Secretary say a little more about how normal that is and whether this step might be opening a door for rather more concerning retrospective legislation?

[Mrs May]

My hon. Friend sneaked in with his intervention as I was nearing the conclusion of my speech. Perhaps I use the term “retrospective” a little loosely. This is not retrospective legislation in that it merely corrects the decision that has recently been made and puts the situation back to what it had been understood to be. That is supported by Liberty, which has said:

“We do not believe that the proposals are retrospective in their nature as they do not seek retrospectively to create a criminal offence, sanction or other burden. They would, in our view, not fall foul of Article 7 of the European Convention on Human Rights or the common law rule against retrospective penalties.”

--- Later in debate ---

[Yvette Cooper]

My right hon. Friend makes an extremely important point, as we are rightly discussing this measure because of the seriousness of the situation and the need to protect people. In police bail cases, that need often applies in respect of particular individuals—victims and witnesses. In the kinds of terrorism cases that she is talking about, the risk may be much wider and may involve a much wider group of people, so we would expect that additional and even greater protection might be needed. It raises concerns if the security services and police do not have the ability and the powers to provide that protection. She is right in what she says and I know that she is continuing to raise that issue as part of the debate on the other legislation.

[Dr Huppert]

Does the right hon. Lady agree that the logical consequence of what the right hon. Member for Salford and Eccles (Hazel Blears) was just saying is that we should be trying to use police bail conditions to deal with terrorist cases, as far as is possible and given sufficient safeguards?

[Yvette Cooper]

There are cases where police bail can, of course, be used and there ought to be cases where we should explore that. Our view remains that there are also cases where that is not possible, which is why we need control orders, the son of control orders or whatever we are calling these things now—we need some other kind of safeguard. Clearly, where more traditional aspects of the criminal justice system can be used instead, they should of course be used. Control orders are always a last resort and should be used only in those circumstances.

We have seen some worrying cases across the country, and this goes to the heart of why emergency legislation is needed now. Hon. Members are right to say that we should bring in emergency legislation only on the basis of very serious consideration; we should never do this lightly and there are always risks involved. However, Parliament also needs to balance the risks, and there are risks to the public and to the course of justice if we do not legislate now.

The National Association of Probation Officers has warned of a case where a suspect who is already on a 12-month suspended sentence for assault and who has five previous convictions for offences against the same partner was arrested again for assault. He was bailed while drugs found upon his person were sent off for analysis, but that may take a week and the 96 hours have expired. His victims are deemed at physical risk and it is hugely important, in those circumstances, that bail conditions should be able to apply. Another case involves the harassment of a former girlfriend by a suspect who has been arrested and released on bail. His phone and computer were taken for analysis, which takes time—far more time than 96 hours. He is not due back on bail until later this month, but his conditions are not enforceable if the current legal state of affairs persists. I have been told of other cases by police officers, including that of someone arrested as he was accused of sexual assault on women he was supposed to help in the course of his work. Further investigations are under way, but his bail conditions included a requirement that he should have no unsupervised contact with women in his professional capacity and, again, those conditions cannot now be enforced.

In many cases, bail conditions were used to give people a time and date for returning to the police station for further interview once further evidence was expected to be in place. Now, even though that further evidence might subsequently have been gathered, the police will still have to go out to look for the suspect and take that extra time to bring them in. So, in addition to the risks to justice and to the victims, this situation is placing considerable extra burdens on police time and resources, causing additional pressures for them, too.

--- Later in debate ---

[Dr Julian Huppert (Cambridge) (LD)]

I shall try to be brief, so that we can conclude the debate. I support the Bill, for the reasons that have been set out admirably by right hon. and hon. Members on both sides of the House. I am concerned about any form of exceptional legislation—it is something that we should always be extremely guarded about, whatever the reason for it is—but this is exceptional legislation, and I understand absolutely why we need it. There is no issue with that, but I have a number of concerns about police bail in its wider sense, as has been discussed. I shall therefore not focus on the legal niceties of the Hookway case—that has been discussed already—but I want to say a few things about police bail in the wider sense.

First, the Bill is clearly a necessary clarification of the law—there is no doubt about that. Looking at previous legislation, it is clear that the Hookway case is a matter of interpretation. The best thing to do is to make its interpretation easier for judges and lawyers in future. I am tempted to talk about how legislation is drafted in this country—we do not always seek to avoid such problems—but I will restrain myself from doing so in any great detail.

My one concern is the retrospective nature of the Bill and saying that the amendments are

“deemed always to have had effect”.

I should like to place on record my gratitude to the Home Secretary for clarifying that in her earlier remarks, but I want to flag up now that we should be very cautious and careful in examining anything that purports to be retrospective. We should not allow it to sail past, but carefully ask questions about the rationale for such measures.

One question that I did not put to the Home Secretary, but to which the Minister for Policing and Criminal Justice will perhaps respond, is on a topic in which I am not normally interested: the royal diary. Are we clear exactly when we will get Royal Assent to the Bill?

There is urgent need for wider reform in this area, and I hope the Government return to it, and that they do not end with this Bill.

My second point is that it was absolutely right for a number of leading lawyers, including a former Solicitor-General, to today raise concerns about some of the abuses of police bail. I do not agree with their comments on the Bill—they called for it not to go through, but I believe that it is absolutely necessary—but the Home Secretary needs to introduce greater safeguards to prevent abuse of such wider powers.

The Bill returns us to a position in which there is no statutory time limit, as we have already discussed, and the police can impose a number of conditions. That means that police bail can be very oppressive. I am particularly concerned about that in the context of peaceful protest. In the past couple of years, we have seen a number of cases of the use of pre-emptive arrest before planned, legal and peaceful protests. In 2009, 114 environmental protesters were arrested at the Iona independent school in Sneinton, Nottingham. They were arrested shortly before a planned protest at an E.ON power station. They were then released without charge on police bail, which prevented them from getting involved with the protest. Potentially, restrictive police bail conditions give police the cumulative power to extinguish the right of peaceful protest—especially for time-sensitive demonstrations—which we should all wish to see supported. There was a similar case of police bail during the occupation of Fortnum & Mason on 26 March this year, which I have discussed in the Home Affairs Committee.

I agree with Liberty and other hon. Members who say that we should consider a time limit. That time limit should be proportionate both to the complexity and the severity of the case. This is not the Bill to do that, as obviously we could not use it to do the issue justice, but I hope that we could consider it in the plethora of other Home Office Bills before Parliament. It would be simple to do it via the Protection of Freedoms Bill or the Terrorism Prevention and Investigation Measures Bill. One could also look at the issue of bail for immigration in that context, because there are some questions about that that need to be looked at.

There is a slightly bizarre lacuna, introduced by the last Government, in the police bail powers, which is that pre-charge police bail is not allowed in terrorism-related cases. It is important to mention that today, the sixth anniversary of the London bombings, because we have made a mess of how we deal with terrorism cases. We have warehoused people under a system outside the normal legal framework. I have argued that we should use the police bail system, which offers similar restrictions and controls to what is proposed in control orders and the Terrorism Prevention and Investigation Measures Bill. It differs in detail, of course, but it does fit within the normal legal framework. I was delighted by the comments of the shadow Home Secretary—in stark contrast to the shadow Minister on the Terrorism Prevention and Investigation Measures Bill—when she agreed that police bail should be explored where it can be used for terrorism offences. That is a great step forward. It may not be appropriate in every single case, but we should have a system—with appropriate safeguards, via the Home Secretary’s applications, as I outlined in the Bill Committee—so that police bail could be used when possible for terrorism cases. That would help to move us towards a normal legal process.

I well understand the urgency behind the Bill and I do not wish to detain the House any longer. I urge the Home Secretary to consider all the issues that have been raised and the importance of getting police bail right, when the rush is over. We need to ensure that we safeguard peaceful protest, improve our national security and restore our liberty. It would be great to do all that at once. If we controlled police bail better, we could use it in terrorist cases to give us due legal process, security and liberty, as well as more of the normal rule of law.