Policing and Crime Bill (Fifth sitting)

Karen Bradley Excerpts

Thursday 24th March 2016 Public Bill Committees

[Jack Dromey]

We will not press amendment 162.

Clause 21, as amended, ordered to stand part of the Bill.

Schedule 5

Schedule to be inserted as Schedule 3A to the Police Reform Act 2002

Amendments made: 136, in schedule 5, page 178, line 34, leave out “19ZD” and insert “19ZC”.

This amendment is consequential on NC2.

Amendment 137, in schedule 5, page 179, line 37, at end insert—

‘(4) The power conferred by sub-paragraph (3) may be exercised only to the extent that the Secretary of State considers necessary for any of the permitted non-disclosure purposes.

(5) The Secretary of State may also by regulations make provision for circumstances in which (despite sub-paragraph (2)(b)) a copy of the report may be sent to the appropriate authority without the consent of the whistle-blower.

(6) The power conferred by sub-paragraph (5) may be exercised only to the extent that the Secretary of State considers necessary for any of the permitted disclosure purposes.

(7) Where the Commission would contravene section 21A by sending a copy of a report in its entirety to the whistle-blower or to the appropriate authority, the Commission may comply with its duty under sub-paragraph (2)(a) or (as the case may be) may exercise its power under sub-paragraph (2)(b) (or under regulations under sub-paragraph (5)) by sending instead a copy of the report after having removed or obscured the information which it is prohibited from disclosing by section 21A.

(8) In this paragraph—

(a) “the permitted non-disclosure purposes” has the same meaning as in section 29HA;

(b) “the permitted disclosure purposes” has the same meaning as in section 29I.’.—(Mike Penning.)

Paragraph 5 of the new Schedule 3A to the Police Reform Act 2002, inserted by Schedule 5, deals with reports following the conclusion of an investigation under section 29E. Currently, it requires the IPCC to send a copy of the report to the whistle-blower except in circumstances specified in regulations. The amendment provides that the regulation-making power is exercisable only for particular purposes (the same as those set out in amendment 131). It also gives the Secretary of State power to make regulations allowing the IPCC to send a copy of the report to the appropriate authority without the consent of the whistle-blower but, again, the regulation making power may only be exercised for particular purposes (the same as those set out in amendment 132). The amendment further allows the IPCC to send a redacted report where it would otherwise contravene section 21A (inserted by NC2).

Schedule 5, as amended, agreed to.

Clause 22

Disciplinary proceedings: former members of police forces and former special constables

[The Parliamentary Under-Secretary of State for the Home Department (Karen Bradley)]

I beg to move amendment 138, in clause 22, page 28, line 35, leave out from “paragraph (a)” to “, or” on line 38.

This amendment is consequential on amendment 139.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 155, in clause 22, page 28, line 41, leave out from “(a)” to end of subsection.

This amendment would remove the time limit on disciplinary proceedings against former members of police forces and former special constables.

Government amendments 139 to 145.

Government new schedule 1—Disciplinary proceedings: former members of MoD Police, British Transport Police and Civil Nuclear Constabulary.

Government amendments 154 and 153.

[Karen Bradley]

The Government amendments in this group are technical amendments to ensure that the provisions of the clause work as intended.

[Jack Dromey]

I often say that I have seen at first hand just how far the police have come over the past 30 years. To be frank, I did not get off to the best of starts with the police service, but then I saw excellent elements in it learning painful lessons about what had gone wrong historically, including from the Scarman tribunal and from Macpherson. The police have come a long way from often having poor relationships with communities throughout the country to being one of the most popular institutions in British society. Indeed, all polling evidence shows that the police are between three and four times more popular than we are as Members of Parliament.

Even if the police have come a long way, we are still learning painful lessons from the past. The shadow Home Secretary, my right hon. Friend the Member for Leigh (Andy Burnham), recently convened a powerful seminar on historic injustices, together with Baroness Doreen Lawrence. I will never forget, in particular, the contributions by the Hillsborough families.

Hillsborough was a disaster, a human crush that caused the deaths of 96 people, and injured 766 others, at a football match between Liverpool and Nottingham Forest at Hillsborough stadium, Sheffield, on 15 April 1989. The 1990 official inquiry into the disaster, the Taylor report, concluded that the main reason for it was the failure of police control. What the families said—it was incredibly moving—on the occasion in question was that they wanted justice and closure, but also accountability from those who presided over some disastrous errors, which led to people being killed on that scale.

As we said earlier in the debate, on Tuesday, we are strongly in favour of a different, more balanced approach towards disciplinary and investigatory arrangements for the police service. For example, I have talked about moving away from a blame culture to a learning culture—a culture that does not take every mistake and every wrong through an investigation and disciplinary process. Having said that, where the police get things badly wrong, of course it is right to act to put them right, because the public interest comes first and the victims deserve nothing less.

The amendment would remove the time limit on the initiating of disciplinary proceedings after an officer leaves the force. We strongly welcome the fact that the Bill provides, for the first time, for disciplinary proceedings to be initiated against former officers in circumstances where misconduct does not come to light until after their time in office. Where the proceedings result in a finding that the officer would have been dismissed had he or she still been serving, that officer will be barred from policing and added to the police barred list.

The Government have stated thus far that matters relating to a former officer’s misconduct must come to the attention of a chief officer within 12 months of an officer leaving the force. Our concern is that the 12-month period could be unduly restrictive. We know from recent experience, such as the Hillsborough inquest, that it may take many more years for campaigners and families to uncover wrongdoing. It is our view that wrongdoing needs to be put right, whenever it occurred, and that the officers concerned should be held to account.

We had constructive discussions earlier this morning, and I hope that the Government will now reflect further on the proposal, not only because of cases such as Hillsborough but to prevent perverse outcomes that might happen when one former officer has been out of the force for 13 months and another has been out for 11. Injustices often take some years to come to public light and scrutiny. There should be accountability in those circumstances.

We have had constructive discussions with the Minister, and I hope that she will consider the clause again and return with fresh proposals. In those circumstances, we would not press the amendment to a vote today.

[Karen Bradley]

I did not say earlier what a pleasure it is to serve under your chairmanship, Mr Nuttall, but it truly is.

I understand much of what the shadow Minister said, but there are a few points that are important to make. First, the time limit we want to apply is for matters relating to misconduct in employment, not criminal matters. It will of course always be possible to investigate criminal matters, but the clause is intended to deal with a problem that we know has existed, when police officers have retired from forces and not been held accountable for mistakes and misconduct. By way of comparison with other forms of employment, I am a chartered accountant and I used to work for large accounting firms. If something came to light today on a piece of advice that I gave 10 or 15 years ago, there is very little that my former employers could do, because I have left. We have to put this in context. We want to make sure that mistakes that have been made are shown to be investigated properly, for public transparency and confidence in the police.

--- Later in debate ---

[Jack Dromey]

That is a helpful response. The Minister is absolutely right to draw the distinction between criminal proceedings, for which action can and should be taken, and actions that might constitute gross misconduct, for example.

[Karen Bradley]

I meant to make another point in my response, which is that the provision can of course be amended by regulation. Should it prove that 12 months is not the right time limit, the Government could change it in any event.

[Jack Dromey]

We are at one on the principle of accountability; somebody should not escape accountability as a consequence of having left the police service. Therefore a 12-month limit is not appropriate. At this stage, I would not like to arrive at a firm view on whether a time limit should be imposed, but there is flexibility on the Government’s part, which we welcome. We are happy to have discussions with the Government between now and Report, and we hope to be able to resolve the matter then.

Amendment 138 agreed to.

Amendments made: 139, in clause 22, page 28, line 45, at end insert—

“(3B) Regulations made by virtue of subsection (3A) must provide that disciplinary proceedings which are not the first disciplinary proceedings to be taken against the person in respect of the alleged misconduct, inefficiency or ineffectiveness may be taken only if they are commenced within the period specified in the regulations, which must begin with the date when the person ceased to be a member of a police force.”.

This amendment provides for the imposition of time limits on when disciplinary proceedings can be taken against a person who has ceased to be a member of a police force if they are not the first disciplinary proceedings to be taken in respect of the particular alleged misconduct, inefficiency or ineffectiveness.

Amendment 140, in clause 22, page 29, line 16, leave out from “paragraph (a)” to “, or” on line 19.

This amendment is consequential on amendment 141.

Amendment 141, in clause 22, page 29, line 26, at end insert—

“(2C) Regulations made by virtue of subsection (2B) must provide that disciplinary proceedings which are not the first disciplinary proceedings to be taken against the person in respect of the alleged misconduct, inefficiency or ineffectiveness may be taken only if they are commenced within the period specified in the regulations, which must begin with the date when the person ceased to be a special constable.”.

This amendment is the same as amendment 139 save that it relates to special constables rather than members of police forces.

Amendment 142, in clause 22, page 30, line 25, leave out “this section” and insert “subsections (2) and (3)”.

This amendment and amendment 143 are consequential on amendment 145, which inserts subsection (8) into clause 22. They allow for the possibility that subsection (8) will be commenced at a different time from the rest of the clause.

Amendment 143, in clause 22, page 30, line 30, leave out “this section” and insert “subsections (2) and (3)”.

See the explanatory statement for amendment 142.

Amendment 144, in clause 22, page 30, line 30, at end insert—

“, but only if the alleged misconduct, inefficiency or ineffectiveness is such that, if proved, there could be a finding in relation to the person in disciplinary proceedings that the person would have been dismissed if the person had still been a member of a police force or a special constable.”.

This amendment limits the extent to which regulations made in pursuance of section 50(3A) or 51(2B) of the Police Act 1996 (provisions inserted by clause 22 of the Bill) can make provision in relation to former members of police forces and former special constables who leave the police after the coming into force of clause 22 but where the alleged misconduct, inefficiency or ineffectiveness occurred before that date.

Amendment 145, in clause 22, page 30, line 30, at end insert—

“(8) Schedule (Disciplinary proceedings: former members of MoD Police, British Transport Police and Civil Nuclear Constabulary) makes amendments of the Ministry of Defence Police Act 1987, the Railways and Transport Safety Act 2003 and the Energy Act 2004 which produce an equivalent effect to the amendments made by this section.”.—(Karen Bradley.)

This amendment introduces the new Schedule NS1.

Clause 22, as amended, ordered to stand part of the Bill.

Clause 23 ordered to stand part of the Bill.

Schedule 6

Part to be inserted as Part 4A of the Police Act 1996

Amendment proposed: 199, in schedule 6, page 180, leave out lines 22 to 29 and insert—

“(c) the person ceases to be a civilian police employee by virtue of being dismissed and the reason, or one of the reasons, for the dismissal relates to conduct, efficiency or effectiveness;

(d) the person is a former civilian police employee and there is a finding in relation to the person in disciplinary proceedings that the person would have been dismissed if the person had still been such an employee.”.—(Karen Bradley.)

This amendment and amendments 200, 201, 202, 203, 204, 205, 206, 207 and 208 make provision for the inclusion in the police barred list and police advisory list of civilian employees of the City of London police force, in addition to members of the civilian staff of a police force for a police area listed in Schedule 1 to the Police Act 1996 and of the metropolitan police force.

[Jack Dromey]

My apologies, Mr Nuttall; I, too, should have said that it is a pleasure to serve under your chairmanship.

Amendment 197 would provide the ability to place police volunteers and privately contracted staff on the barred list. Under the Bill, where police offers and special constables have been dismissed following disciplinary proceedings, their details will be added to the barred list held by the College of Policing. Chief officers will be barred from appointing anyone on the list as an officer, member of police staff, special constable or police volunteer. That is welcome, subject to the reservations that I am about to raise.

The Bill does not provide for volunteers dismissed for misconduct to be added to the barred list. Such volunteers are therefore not barred from taking up positions with other forces. We understand that police volunteers can be added only to the advisory list, although the legislation could make that clearer. That does not bar them from being appointed, but the advisory list is made available for vetting purposes.

The advisory list is intended to be used in the interim to record information about individuals who are under investigation or subject to proceedings. If the person is dismissed or would have been dismissed, they are effectively transferred to the barred list; however, if the matter is not proven or does not amount to gross misconduct, they are simply removed from the list. Do volunteers wrongly accused of misconduct have an opportunity to be investigated and removed from the advisory list? It is equally troubling that those who have committed gross misconduct cannot be placed on the barred list to ensure that they cannot serve with any force again.

Amendment 197 addresses the issue that the Bill does not provide for private sector staff to be added to the barred list. We find that extremely concerning, given that private sector staff can hold certain policing powers as detention and custody officers. Perhaps the Minister will therefore explain what mechanisms are in place to ensure that privately contracted staff who abuse their policing powers cannot serve again.

In 2012, Deborah Glass, the deputy chair of the Independent Police Complaints Commission, told The Observer:

“We believe it is vital for public confidence that all those who perform police-like functions and powers are subject to independent oversight.”

We wholeheartedly agree. In that spirit, the purpose of amendment 197 is to ensure that anyone with warranted powers can properly be held to account and, in instances of gross misconduct, can be prevented from being appointed to a police force.

Amendment 198 is closely linked to amendment 197 and would provide for privately contracted staff to be placed on the advisory list. It is therefore a tidying-up amendment, in line with the thrust of amendment 197, to provide for private sector staff to be added to the advisory list.

[Karen Bradley]

The creation of a statutory police barred list and police advisory list will bring greater accountability to the police disciplinary system and ensure that those who are employed by the police but dismissed as a result of serious wrongdoing are prevented from joining another force—something that I think we all agree on. The Bill will also ensure that officers and staff who leave by resigning or retiring before disciplinary proceedings have concluded are not able to evade sanction. The Bill will achieve greater accountability and strengthen public protection in a manner that we consider to be proportionate and workable.

As the shadow Minister has explained, amendments 197 and 198 seek to include police volunteers and those in a contractual relationship with police forces in the provisions for the police barred list and police advisory list. I have concerns about the approach that he suggests in relation to both categories.

I will start with volunteers. We recognise the importance of ensuring that volunteers carry out their functions appropriately and with adequate safeguards to ensure that they are held to account when they fall short of the standards expected. To achieve that, we have introduced measures to ensure that volunteers can be disciplined if wrongdoing occurs. The Bill contains measures to ensure that volunteers are captured in the provisions for the police advisory list. That will ensure that where a volunteer’s designated status is withdrawn as a result of serious misconduct, it will be recorded on the advisory list. That is a proportionate approach that reflects the fact that we are dealing with individuals who are not paid employees and who do not hold full contracts of employment. Amendment 197 would take those protections beyond what we regard as reasonable and proportionate for a volunteering role in policing.

Turning to police contractors, the amendments fail to address the complexities associated with the role and status of contractors who are not directly employed by police forces. Those contracted individuals cannot be treated like police staff or officers for the purposes of disciplinary proceedings. As a result of that legal and practical distinction, the responsibilities for employment matters rest ultimately with the companies that employ the contractors, and are governed by employment law.

The provisions of the police barred list, with all its effects and consequences, cannot simply be added to the end of other organisations’ disciplinary processes and procedures, because the full safeguards and protections that have been developed and built into the police staff and police officer disciplinary systems that sit within the police service would be lacking. For example, there would be no guarantee of a fair process for a hearing to consider the sanction or a subsequent appeal, in line with the policies and regulated procedures followed for police officers and police staff.

To bolt amendments 197 and 198 on to the Bill would risk undermining the principles of consistency, fairness and transparency that are at the core of what we are trying to achieve on accountability.

[Jack Dromey]

If specials can be barred, why not volunteers and private contractors?

[Karen Bradley]

It is because of the contractual relationship. A volunteer is unpaid and is doing the job of their own free will. There is not the same relationship. A contractor’s employer is the company, not the police. There are issues about the contractual relationship between the employer and the police, but those are not about the individual.

[Jack Dromey]

I remain unconvinced. First, the fact that private contractors have their own employment and disciplinary arrangements does not mean that the police service, or the policing Minister, cannot discharge the obligations of the Government to the contractor. In a hypothetical but possible circumstance in which there was wrongdoing by a special, a volunteer and a contractor alongside one another, the special could end up barred, whereas the volunteer and the contractor would escape being barred. That is an anomaly that I do not understand.

[Karen Bradley]

Another anomaly is that the special is warranted, while the volunteer and the contractor are not; they do not have the ability to arrest in the same way. We are looking at how to ensure that there is trust and accountability for police and warranted officers. The volunteers are not warranted and neither are the contractors. To try to undo this, and to try to bolt on an additional disciplinary process for an individual who is employed by a third-party company, which has its own disciplinary processes—

[Jack Dromey]

I am grateful to the Minister; she is being very generous with her time. Can she understand why specials would feel hard done by because they are held to certain standards, while volunteers and private contractors are not?

[Karen Bradley]

I do not think this is a case of anyone being held to different standards. We are talking about warranted officers as opposed to those who are not warranted. There is a difference in what they can do; there is a difference in their position; there is a difference in the duties that they carry out. While I fully appreciate and understand what the hon. Gentleman seeks to achieve—full accountability and public trust in these arrangements—I think that trying to bolt on an additional disciplinary process for volunteers or individuals employed by a third party, who have no warranted powers, simply confuses the matter. I am afraid that I therefore cannot accept amendments 197 and 198.

Turning to amendment 161, I agree with the hon. Member for Birmingham Erdington that as police forces modernise, including by taking advantage of the greater flexibility to confer policing powers on volunteers, adequate safeguards and arrangements are needed to hold designated volunteers to account when wrongdoing occurs. That issue was raised in the public consultation, which is why we have included appropriate provisions in the Bill, including in respect of guidance. Clause 30 will, for the first time, mean that if a member of the public makes a complaint against a designated volunteer, or if an internal allegation comes to the attention of the force, action can be taken to respond to that matter.