Police Reform and Social Responsibility Bill

Lord Blencathra Excerpts

Thursday 9th June 2011 Lords Chamber

Moved by

[Lord Blencathra]

233: After Clause 95, insert the following new Clause—
“Application of health and safety enactments to police
(1) No police and crime commissioner nor chief officer of police shall be liable for prosecution under any health and safety enactment in the performance of their duties.
(2) No police and crime commissioner nor chief officer of police shall be liable for damages or compensation for any injuries caused as a result of a breach of health and safety law in the performance of their duties, save where it is proved that the individual acted maliciously or with reckless disregard for the safety of others.
(3) A police officer in the execution of the officer’s duty who believes that an action or actions are necessary—
(a) to prevent crime,(b) to prevent risk to the health and welfare of others, or(c) to save the lives of others,shall not be prevented from taking that action or actions by the intervention of any other public official, of whatever rank, who alleges that there is a health and safety risk to the officer.(4) It shall be an offence for any public official to obstruct a police officer in the execution of the officer’s duty when the officer has decided under subsection (3) that an action or actions are necessary.
(5) A police officer who has come to a decision under subsection (3) shall have no authority to compel others to join with the officer in the action or actions.
(6) Sections 1, 2 and 5 of the Police (Health and Safety) Act 1997 are repealed.
(7) Her Majesty’s Inspectorate of Constabulary shall issue general guidance on health and safety matters to all police forces for every police area listed in Schedule 1 to the Police Act 1996 (police areas).
(8) A breach of the guidance issued under subsection (7) by any officer of the rank of constable may result in disciplinary action but shall not result in any prosecution or civil action.
(9) A police and crime commissioner shall not be liable for prosecution nor civil action because of any breach of the guidance issued under subsection (7).”

[Lord Blencathra]

I need to correct a mistake I made in 1996-97. It was not the only one I made then, but it is the only one I may have a chance to rectify at the present moment. Putting the police under the statutory provisions of the Health and Safety at Work etc. Act was my policy and my responsibility. I was the Police Minister at the time; I was the guilty man. Admittedly, I was aided and abetted by the whole of ACPO, the Police Federation, the Police Superintendents’ Association, the whole police department of the Home Office and all the police authorities. In this House, the late Lord McIntosh of Haringey said that it was his duty to oppose things but that there was nothing in the Bill that he could find to oppose.

All the great and the good, and even I, thought this Bill was the right thing to do. It was a jolly good move and put the police on the same basis as other workers, and we thought there would be no problems. In that frantic legislative climate at the end of 1996-97, heading up to the election, the Police (Health and Safety) Bill was given to a Back-Bencher in another place to introduce as there was no time in the government programme—I believe I had led on about 15 Home Office Bills in that last Session. It was bounced through on the nod in another place at 2.30 pm on a Friday, not having received any debate whatever. It then got 45 minutes in Committee, on a Friday. There was no Report or Third Reading. When it got to this House, it had 19 minutes of debate at Second Reading and, since no amendments were moved, it had no Committee stage, no Report stage and no Third Reading stage; and it passed into law. I am not being critical here, because I put through Bills with even less scrutiny. However, this Act received a total of 64 minutes’ scrutiny in both Houses of Parliament. From a total of about 1,400 Members of both Houses, only one Member queried its provisions. So, I pay tribute to Mr Michael Fabricant MP, who at the Committee stage in another place, said:

“The other area that disturbs me is that my right hon. Friend the Minister of State at the Home Office”—

that was me—

“is reported … as telling a seminar: ‘One of the difficulties in moving towards a statutory regime’—such as this—‘has been the fact that policing duties and the environment in which they are carried out are so different from those which generally apply in factories, offices and other static premises’”.

Mr Fabricant went on to say,

“that concerns me deeply … That question must be dealt with, however, as it is at the heart of the Bill”.

He went on to ask what action officers should take when faced with danger. Do they retreat or intervene? He queried the potential conflict between the operational independence of chief officers and the powers of the health and safety inspectors. He said:

“Those problems have not been properly addressed by the Bill”.

For an answer, Mr Fabricant was given the reassuring line to take which I had prepared and approved, having apparently changed my mind in the intervening period since I had addressed the seminar. That answer was:

“A potential conflict remains between the requirements of health and safety and the operational requirements of the police service but it is well understood by all parties. I am optimistic that those conflicts will always be resolved in a sensible manner against the background of the statutory provisions of the Bill”.—[Official Report, Commons, 14/2/97; cols. 578-584.]

Yet, just six years later, two of the finest Metropolitan Police Commissioners who I have ever had the privilege to work with stood in No. 2 dock at the Old Bailey, in the same dock where people are tried for murder and treason, defending themselves against a criminal offence because a brave police officer, PC Kulwant Sidhu, died when pursuing a criminal in the course of his duties and because another police officer had been injured in another incident.

I take this opportunity to apologise publicly to the noble Lords, Lord Condon and Lord Stevens, for the injustice that they suffered from a law that I was responsible for and which went through with inadequate scrutiny. That prosecution was outrageous, wrong, misguided, expensive and so lacking in common sense that it convinces me that one cannot leave a provision on the statute book which can be abused by bureaucrats—admittedly, well-meaning bureaucrats. It should be amended.

I am not alone in thinking that, thank goodness. Your Lordships will be aware that my noble friend Lord Young of Graffham stated in his report, Common Sense, Common Safety:

“Police officers … should not be at risk of investigation or prosecution under health and safety legislation when engaged in the course of their duties if they have put themselves at risk as a result of committing a heroic act”.

The Health and Safety Executive, ACPO and the CPS, my noble friend concluded,

“should consider further guidance to put this into effect”.

My noble friend Lord Young is absolutely right in coming to his analysis of the problem and I believe that the principle of what he has enunciated is now government policy. With respect, however, my noble friend has misdirected himself in his last sentence. He has suggested that the Association of Chief Police Officers, the Health and Safety Executive and the Crown Prosecution Service should get together and ensure that police officers should not be prosecuted for a possible breach of the law. That is not the right way to go about it. If it is the law, it should be enforced. What signal does it send if a cosy deal has been done between the CPS, ACPO and the HSE not to prosecute police officers? No—the approach must be: if we do not want to see police officers in the dock and being prosecuted for that sort of breach, we must amend the current law which allows it to happen.

I believe that my proposed new clause, while no doubt inadequately drafted and with some technical flaws, attempts to do just that. It seeks to ensure that chief officers are not prosecuted for a health and safety breach while trying to ensure that ordinary police officers are not disadvantaged and receive full employment law protection. At the same time, it does not leave a big black hole with no health and safety guidance whatever, because I want HMIC to promulgate non-statutory guidance.

I turn to the specific subsections of the clause. Subsection (1) says that,

“No police and crime commissioner nor chief officer … shall be liable for prosecution under any health and safety enactment”.

Perhaps I should have added, “Nor any other person holding the rank or office of constable” because I do not want anyone, of any rank, to be prosecuted by the HSE for a breach of health and safety.

--- Later in debate ---

[Lord Wallace of Saltaire]

My Lords, I thank all noble Lords who have taken part in a very useful, serious and worthwhile debate. It is appropriate to say from the government Front Bench that we will take away the points made and consider whether we have got the balance right. On that basis, I will ask the noble Lord to withdraw his amendment. I note that prolonged service as Chief Whip does not adversely affect one's rhetorical skills.

The noble Lord, Lord Condon, talked about the need for a sensible balance, and that is what we all want to achieve. The noble Lord, Lord Stevens, rightly said that policing is all about taking risks. My wife and I were invited to attend the Leeds police awards dinner some months ago and the award for bravery was given to a constable from Northumbria who had been blinded when stopping an offender in his car. It was quite an emotional experience.

My only close experience with the Health and Safety Executive was when the parliamentary choir was due to perform in Westminster Hall in 2003. On taking the portable organ into Westminster Hall and playing the 16-foot stop, bits of wood began to fall off the roof. Our first response was to say, “The Minister responsible for the HSE is a contralto in the choir, surely we can override the rules”, but the HSE pointed out that in addition to parliamentarians, there would be senior civil servants in the audience, so it would clearly be dangerous to go ahead with the concert and we had to make do with performing in Westminster Abbey instead.

We all recognise the culture of health and safety that has evolved through the media. I regularly read the Daily Mail, which demands that there should be nil risk to the public in anything that is undertaken in a public place. It then sets out to attack the regulations that were drawn up in response to those demands. That is how we have got to where we are now.

The proposal to repeal this clause would have to go significantly further than the noble Lord, Lord Young, recommended in his independent review of health and safety last year. He did not call for the duty to be removed as it serves both to,

“protect employees and ensure that activities carried out do not adversely affect the health and safety of other people”.

Of course the Government recognise the need to strike a balance between protecting the police and the public while acknowledging that it is in the nature of police duty that officers take risks and should not be at risk of prosecution under health and safety legislation when engaged in their duties.

Following the report of my noble friend Lord Young, the Crown Prosecution Service issued guidance in March—which the noble Lord, Lord McKenzie, quoted—under the title, Heroic Acts by Police Officers and Firefighters, which clarifies the legal situation and highlights the fact that the public interest would not be served by taking forward the prosecution of police officers who act in heroic ways when decisions are likely to be taken in fast-moving and dynamic situations. The Government will carefully consider the extent to which the recommendations of my noble friend Lord Young's report have been adequately met through the CPS guidance. We will institute a dialogue, if it is needed, between the police, the Home Office, the DWP and the HSE, as suggested. We recognise that this has to be a question of balance and we will assess whether the balance has now been struck in the most sensible place.

[Lord Blencathra]

My Lords, I am so pleased in retrospect that I tabled this new clause, because it has enabled me and the House to hear such excellent speeches from noble Lords such as the noble Lords, Lord Harris of Haringey, Lord Hunt of Kings Heath, Lord Condon, Lord Stevens and Lord Dear. Tomorrow when I read Hansard I will come to the same conclusion that I came to when I heard their speeches, namely that between them they have got the solution to this problem.

I do not want the whole police service exempted en bloc from health and safety legislation, or even from its statutory duty. However, neither do I want a situation in which we rely mainly on guidance, so that one day, somewhere, a prosecutor or an HSE person, possibly not following that guidance, will create a situation where a Metropolitan Police commissioner could still be in the Old Bailey in the circumstances that I described, and which the noble Lords, Lord Condon and Lord Stevens, witnessed first hand. I say to the noble Lord, Lord McKenzie of Luton, that common sense did prevail—but in the jury. To me, that was a couple of steps too late; I wish it had prevailed in the HSE and in those who brought the prosecution.

I am perfectly content to withdraw my new clause and will not come back to it on Report. However, I urge Ministers to go back to the Home Office tomorrow with the Official Report and initiate that dialogue, because I am not convinced that the guidance at the moment is enough. I would like to see a few more steps taken to make sure that there is a deeper understanding. The noble Lord, Lord Harris of Haringey, was so right to say that the person responsible for health and safety should not be the health and safety officer but every manager of every organisation, thinking it and doing it. There must also be an understanding in the HSE and the prosecuting authorities of the special, unique nature of the police service.

I conclude by saying that if at the end of the day, after all the dialogue, we still face the possibility that a brave police officer may get a bravery award one day while their commanding officer may be prosecuted for that act, that will be wrong. No matter how many million words of guidance and advice we have, we cannot have a situation where a chief officer is still liable to prosecution for a brave act by one of his officers. Let us initiate a dialogue. I am not volunteering to participate; I have done my inadequate duty.

I was always told that when one went to the House of Lords, one would hear expert speeches. I have had the privilege today of listening to such speeches from all sides, which proves that this House should continue in its present form, because we would never have heard these speeches from elected politicians. I beg leave to withdraw the amendment.

Amendment 233 withdrawn.