Policing and Crime Bill

Lord Dear Excerpts

Committee: 3rd sitting (Hansard - part two): House of Lords
Wednesday 2nd November 2016 Lords Chamber

Moved by

[Lord Dear]

201SA: After Clause 107, insert the following new Clause—
“Power to remove disguises
In section 60AA(6) of the Criminal Justice and Public Order Act 1994 (powers to require removal of disguises) leave out “that is not practicable,” and insert “it is not practicable for an authorisation or direction to be given in writing, it shall be”.”

[Lord Dear (CB)]

My Lords, it is with some trepidation that I drag your Lordships’ attention from the interesting subjects of tank transporters, pigeon post and emails.

Amendment 201SA stands in my name and those of the noble Lords, Lord Donoughue and Lord Campbell of Pittenweem. The noble Lord, Lord Donoughue, has asked me to say that he is not able to speak to the amendment due to the lateness of the hour but he would have done so, as would the noble Baroness, Lady Mallalieu.

The amendment concerns Section 60AA of the Criminal Justice and Public Order Act 1994, which gives the police powers in some circumstances to require the removal of facial disguises. An authorisation is required under that section. The authorisation is strictly time limited, and is specific in many ways, particularly as regards location and time. It gives a power to uniformed police to require the removal of, among other things, masks, balaclavas and scarves if it is suspected that the purpose of wearing those disguises is wholly or mainly to conceal identity. The authorisation gives the police the power to seize those balaclavas et cetera, and provides that any person who fails to remove them when required commits an offence. A police inspector can authorise the removal of those articles if he or she reasonably believes, first, that offences are likely to be committed and, secondly, that the authority to remove them is expedient. It follows from that that one is dealing with demonstrations and prospective incidents of disorder which are foreseen or advertised to the police. The authorisation has to be in writing, has to be signed by the inspector and has to specify all the grounds—locality, period of time and so on—before it is valid. That brings me to the wording of Amendment 201SA, which seeks to remove “that is not practicable” and insert the words printed in the Marshalled List.

Somebody listening to me or reading the amendment may wonder whether it is splitting hairs. In a sense, it is, but there is a reason for that. As I said, the law as it stands deals with anticipated demonstrations—those that are pre-advertised in one way or another. The police know that such a demonstration is going to take place and can take pre-emptive action by issuing an authority in writing. However, there is a problem—and it has been a problem for some years now. It is what is often called, in popular parlance, “flash demos”. These are demonstrations of which the police have had no prior knowledge and which have erupted suddenly and spontaneously—a sort of “hit and run”, if you like. There is no doubt that in some cases the people who organise those flash demos—if I may continue to use that phrase—are working on the presumption that they can organise them because of the growth of communication by social media, which makes it much easier. They also know full well that if the police have no prior knowledge, the numbers of police officers available to deal with that intended disorder are likely to be very few. Those police officers on the street, faced with that sudden eruption of violence or disorder, will be faced with a dilemma. Quite simply, in their terms, if they effect an arrest, those two officers—or one officer or whatever—will go off the scene and then nobody is left to deal with the disorder. So one sees a degree of deliberation behind all this.

The point of the amendment is that there is some confusion at the moment in the minds of the police about whether the Act allows the permission to be written ex post facto—in other words, the police officer at the scene faced with the demonstration will usually use the radio to ask an inspector at the base station for permission—and whether or not it is correct within the existing law for the inspector to give the permission and write it when the officer is already dealing with the situation with which he is confronted.

I think that my amendment has full support; I hope that it has. Certainly there is full support for that change from the police service at the top level. From the police’s point of view, it will clarify their position, give them a degree of certainty and enable a much speedier response to deal with disorder, either impending or actual. I hope that I can say with some certainty that there is support from all around the House. On that point, we shall learn more in a moment. There have been some discussions with officials, who, without any commitment at all, have indicated a sympathy to discuss this further. I ask the Minister to recognise that and, in the light of whatever is said in this Chamber tonight, to consider taking this issue away and bringing back an amendment at a later stage. On those grounds, I beg to move.

[Lord Harris of Haringey]

My Lords, the noble Lord, Lord Dear, has raised a potentially important issue, and I think he is right to put it in the terms that he has. Particularly with the growth of social media and the very rapid organisation of demonstrations, there may be an issue here that needs to be addressed. Indeed, if the Minister, having thought about it, agrees to take it back and bring forward a proper amendment which addresses all these points at the next level—which I think is the noble Lord’s preferred course of action—there are a number of other issues that perhaps would usefully be addressed at the same time.

We have to be more explicit about what constitutes a disguise and the circumstances in which it happens. You could have a situation in which what would appear to a police officer on the scene as being a disguise might turn out to be a veil worn for religious purposes; or it might turn out to be the fact that it is extraordinarily inclement weather and no sensible people would go out without a scarf wrapped around their face; or it might be that they wear face masks—I have seen this; it is quite common particularly among Japanese tourists, although I am not sure that it is unique—allegedly to protect themselves from the notorious levels of air pollution in our capital city. All I am saying is that the definition of “disguise” that may have seemed to work in the 1994 Act may need to be reviewed and looked at in the context of whether it continues to make sense. There have to be some safeguards with regards to the way in which decisions are taken and recorded, which ensure that the power is not used in any way which could be deemed discriminatory, as that would be extremely unfortunate. I am sure that that is not the intention, but it is important that safeguards are built into this. While the process by which this happens should be able to respond quickly to the sorts of situations that the noble Lord, Lord Dear, outlined, it should also be amenable to ensuring that the power is not misused or used in a way which in retrospect turns out to be highly inappropriate.

The noble Lord, Lord Dear, has identified an issue that should be addressed, but it needs to be developed quite carefully to avoid some potential pitfalls in the future.

[Lord Dear]

My Lords, can I just put on the record what Section 60AA(2) of the 1994 Act says? To the best of my knowledge, it has not raised any problems in law so far. It says:

“This subsection confers power on any constable in uniform … to require any person to remove any item which the constable reasonably believes”—

those words are a well-known test in law—

“that person is wearing wholly or mainly for the purpose of concealing his identity”.

[Lord Kennedy of Southwark]

Briefly, I agree with my noble friend Lord Harris of Haringey, that the noble Lord, Lord Dear, has raised an important issue. However, it needs careful consideration for the reasons that my noble friend outlined. I therefore hope that the Minister will agree that the Government will take this away and have a look at this issue. We all want to make sure that the police have the appropriate power, but equally, of course, we should ensure that the proper safeguards are built in so that unintended consequences, which no one would want to occur, do not cause problems as well.

[Baroness Williams of Trafford]

The noble Lord, Lord Paddick, is right that the permission in writing can be given after the event, but we now find that that is not an ideal situation. On what the noble Lord, Lord Dear, proposes, both national policing leads and others would welcome a clarification on this matter. The noble Lord, Lord Dear, answered the question posed by the noble Lord, Lord Harris, for me, but I will repeat it, as it is important. With regard to removing face coverings for religious reasons, for example, the Act states that when an authorisation is in place, a constable can require a person to remove a face covering only if the constable reasonably believes that the person is wearing the item,

“wholly or mainly for the purpose of concealing his”,

or her “identity”. Of course, it is for individuals to ensure the fair and proportionate use of their powers.

If the noble Lord is content to withdraw his amendment—it sounds as though he is—I will give the matter further sympathetic consideration in advance of Report.

[Lord Dear]

My Lords, at this late hour I am grateful for the contributions that have been made. I am encouraged by and grateful to the Minister for what she has said, and I beg leave to withdraw the amendment.

Amendment 201SA withdrawn.