Police, Crime, Sentencing and Courts Bill

Lord Blencathra Excerpts

Report stage
Wednesday 12th January 2022 Lords Chamber

Moved by

[Lord Blencathra]

104G: Clause 44, page 38, line 43, at end insert—
“(4) Part 6 of Schedule 4 does not have effect unless the College of Policing is re-established under an Act of Parliament.”

[Lord Blencathra (Con)]

My Lords, this amendment is in my name and those of the noble and learned Lord, Lord Judge, and my noble friend Lord Hodgson of Astley Abbotts. I say to my noble friend Lord Sharpe that I am sorry that Ministers in this House once again have to take the brunt of my ire over Home Office matters for which they are not responsible and entirely blameless. I also say to the Government that I am not a natural rebel. I made the mistake of sitting in on the last debate and was utterly convinced by the arguments of the noble Lord, Lord Coaker, but nevertheless as a former Chief Whip felt that I had better support the Government, only because I had not told them in advance that I would rebel.

The College of Policing employs more than 700 people, and last year spent more than £47 million. The Bill, like others before it over the last seven years, gives the college the right to prepare guidelines to be implemented by the police, which will affect the public. In this case, it is pre-trial bail. Your Lordships may have assumed that a body called the College of Policing to which the Home Office has been granting regulatory authority is a statutory body set up by Parliament, and that perhaps you had missed the Bill setting it up when it went through this House. That is what I thought until recently, when I discovered that it has no statutory authority whatever but is a private limited company, limited by guarantee. Not many people know that, as the great Sir Michael Caine denies he ever said. It was announced by the then Home Secretary, Theresa May, on 24 October 2012, and this is what she said—sorry, this is not what she said; it was merely a Written Statement, with no questions asked:

“My Department has now legally incorporated a company limited by guarantee under the name ‘College of Policing Limited’. The college will become operational in December 2012. The college will be established on a statutory basis as soon as parliamentary time allows.”—[Official Report, Commons, 24/10/12; col. 62WS.]


Nine years and 20 Home Office Bills later, there has apparently been no time to put this powerful arm’s-length body on a statutory footing. Do your Lordships believe that this is simply an oversight? I am afraid that I am a cynical person, and I do not. I suggest that it is a deliberate attempt by the Home Office to avoid parliamentary scrutiny for this organisation.

I serve on two arm’s-length bodies and they, like dozens of others, were created by statute. It is not rocket science for the Home Office to simply copy the usual format of 10 to 15 clauses setting out the general powers of the organisation and a schedule with the technical stuff about salaries, appointments and all that sort of thing. Our statute book is full of such creations of statutory arm’s-length bodies. Indeed, the Home Office has done all the homework already; this private company, of course, has a memorandum and articles of association, which Companies House requires. It is not rocket science for the Home Office simply to lift all that from the memorandum and articles of association and add it to a Home Office Bill such as this Christmas tree one, or introduce a new one. I can conclude only that the Home Office has deliberately not done it, and it cannot say that it has had no time to do that after nine years of this limited company operating.

Let me make it clear that I do not challenge the honesty, integrity or desire of the police officers and civilians running this organisation to try to do good and reduce crime. Indeed, in my time as a Police Minister I never met a policeman who did not believe that if he or she had that little bit of extra power—to be able to take the fingerprints and DNA of everyone and keep them on file in case they are needed—they would make a huge difference in cracking down on crime. They are right, of course, but if one were to grant those powers it should be done by Parliament. I do not challenge its honesty and integrity, but I challenge its right to exist as a powerful arm’s-length body without a single minute of parliamentary time, either in the other place or in this House, devoted to considering its establishment, powers, rights and duties.

If I may say so, it gets worse. In a recent Parliamentary Answer, the Home Office confirmed that the college has put in a bid for a royal charter. Can your Lordships imagine that—a private limited company, already exempt from parliamentary creation, getting a royal charter? Who do they think they are? Of course, if it got it and if MPs or Peers—someone like me—then began to question its activity, it would say that it had a royal charter and was above repute, and how dare I question them and to mind my own business. My instinct tells me that this is simply not right.

--- Later in debate ---

[Lord Sharpe of Epsom (Con)]

My Lords, I thank my noble friend Lord Blencathra for explaining the amendment, which in substance relates to the power conferred on the College of Policing to issue guidance about pre-charge bail. I recognise that my noble friend has made a wider point about the appropriateness of the College of Policing in its current guise issuing any operational guidance to the police.

The set of reforms in Schedule 4 to the Bill, known collectively—as the noble Lord, Lord Coaker, mentioned —as Kay’s law, aims to establish a pre-charge bail system which is fairer and more efficient, with the removal of the presumption against bail and changes to pre-charge bail timescales. My noble friend’s amendment would require the College of Policing to be placed on a statutory footing before it can issue guidance on pre-charge bail. In practical terms, this would mean that the guidance, and therefore the whole pre-charge bail reform package, would need to be delayed while an appropriate legislative vehicle was found for this fundamental change to the college’s status.

Guidance to underpin these changes is essential to secure the effective implementation of the reforms, and I think I should stress again that the guidance is about pre-charge bail, not court-ordered post-charge bail. Policing partners have made it clear throughout the drafting of the provisions that clear statutory guidance aimed at operational experts is required to build a system which is consistently applied across all forces.

I understand that my noble friend’s amendment probes the issue of the College of Policing’s status, but it is important to note that a number of the college’s functions have statutory underpinning. Among other things, Sections 123 to 130 of the Anti-social Behaviour, Crime and Policing Act 2014 enable the college to issue codes of practice for chief officers and guidance about the experience, qualification and training of police staff. The provisions in Schedule 4 to the Bill enabling the college to issue guidance about pre-charge bail would thus be an extension of these existing powers.

As the college is the professional body for policing, the Government consider it entirely appropriate that it should be able to issue guidance which police officers are required to have regard to when exercising functions to which the guidance relates. The Government do not believe that the fact that the college is not a body established by statute alters that fact. It is relevant, however, that the guidance to be issued under Part 6 of Schedule 4 is subject to the approval of the Home Secretary, who is, as my noble friend Lord Blencathra said, accountable to Parliament, and must be laid before Parliament. It is therefore open to either House to scrutinise the guidance at any time.

The college does hold the long-term aim of achieving royal charter status, as my noble friend noted, but the noble and learned Lord, Lord Judge, asked whether its status was being considered in any other ways. It is. The college chair, my noble friend Lord Herbert of South Downs, is currently undertaking a fundamental review of the college, which may include recommendations about its status. Obviously, the Government will consider the recommendations flowing from the review when it is published, but I am afraid I do not know when that will be, to pre-empt any questions.

As I indicated, regardless of the college’s legal status, we believe it is entirely proper that it should be able to issue guidance of this kind to which police officers must have regard. I should reiterate that the practical effect of this amendment would be unacceptably to delay the implementation of these necessary reforms, which, as the noble Lord, Lord Coaker, noted, have wide support and would better help protect the victims of crime. It is crucial that Kay’s law is delivered in a timely way, supported by robust guidance issued by the professional body for policing, and the current provisions do exactly that.

I am afraid that I cannot answer my noble friend Lord Blencathra’s specific question about when space may be found to alter that. I would be surprised if that answer surprised him, but I hope that, having had this opportunity to debate the role and status of the College of Policing, he will be content to withdraw his amendment.

[Lord Blencathra (Con)]

My Lords, I think that my noble friend has inadvertently answered the question of when it will be done. It is quite clear, reading between the lines, that the Home Office does not intend to do it ever. So do the Home Office, he and the Home Secretary still stand by the promise of the then Home Secretary in 2012 that this would be put on a statutory footing?

If I may say so, the Home Office, in drafting my noble friend’s speech, has been a bit disingenuous. It knows fine I am not opposed to the schedule. The schedule was the mechanism by which we could debate the principle of the college not being on a statutory footing. I discussed this with the Public Bill Office. I looked at various ALBs, including the two of which I am a member, and asked the staff whether I could lift 12 clauses from one of them, change the name to the College of Policing and lift the schedule. They said, “That would be 12 clauses to debate. It would be easier, Lord Blencathra, just to find a mechanism to say that the college must be put on a statutory footing before this schedule is approved.”

I am not opposed to the schedule—no one is. It was a mechanism in order that we could debate the principle. I must say that I am rather concerned by my noble friend’s reply—but also how delighted I am that, on this occasion, the noble Lord, Lord Paddick, and I are on the same side, despite some strenuous disagreements in the past few weeks. I must say to my noble friend that, if I had realised, and had had the nous and wit beforehand to discuss with the Lib Dems and possibly the Labour Party what this amendment was about, we could have had agreement tonight and I could have forced it to the vote and won it. Of course, I am not going to do that tonight, but I can tell the Home Office that this issue will not go away. I detect the mood among other parties here, and I hope among my noble friends as well, that we must honour the Home Secretary’s promise to have this body put on a statutory footing.

--- Later in debate ---

[Lord Pannick (CB)]

As the Minister said, the noble Baroness, Lady Hayman, is unable to be in her place tonight. She has asked me to say that she joins me in thanking the Minister, who has engaged with us sympathetically on this topic and secured this welcome change in the law. That is a tribute to his persuasive powers not just in this House but in government.

I hope that the Minister’s remarks tonight will receive as much publicity as his speech in Committee, which, as he said, featured not just in Hansard but elsewhere. He mentioned his appearance—or his remarks’ appearance—on “Have I Got News for You”; well, the news tonight is that this amendment has achieved a welcome change in the law that will be appreciated not just by breastfeeding women but by their partners and relatives.

[Lord Blencathra (Con)]

My Lords, I intervene to ask my noble friend a question. I listened carefully to what he said and I completely support the amendment, but does it go far enough? I cannot find any excuse or justification for anyone who is not a family member to take any photographs of a woman breastfeeding. It would seem from what my noble friend said on the amendment that mens rea has to be proved—there has to be a proven intent to get sexual gratification from it—but why should that be the case? In my view, there can be no justification for anyone outside the family—a stranger—to want to photograph a woman doing this. This is a simple question from my simple little mind.