Serious Crime Bill [HL]

Lord Elystan-Morgan Excerpts

Tuesday 15th July 2014 Lords Chamber

[Baroness Howe of Idlicote (CB)]

My Lords, I very much support my noble and learned friend Lady Butler-Sloss, because her amendment absolutely stresses this emotional side that we are talking about and which has been in the background for far too long.

However, I am on my feet only because I think that the point made by my noble friend Lady Howarth is absolutely right. All these measures, and particularly the amendment of the noble Lord, Lord Ponsonby, need to be brought in to the Bill, which should be amended. For that reason, I very much hope that the Minister will do just that.

[Lord Elystan-Morgan (CB)]

My Lords, at Second Reading a month ago, I committed the cardinal sin of making some very specific and detailed comments of a nature belonging more to a Committee stage than otherwise. I am not going to make up for it by making a Second Reading speech today, but I very much welcome the amendment in the name of the noble and learned Baroness, Lady Butler-Sloss.

I have little doubt that the draftsmen of Clause 1 of the 1933 Act intended that “cruelty” should relate to both physical and non-physical cruelty. However, in 1981 in the case of Sheppard, this House caused some confusion in relation to that matter by placing what might be described as a somewhat heavy gloss upon the words of statute. The combined effect of the amendment and Clause 62 is that the situation will be made abundantly clear. I very greatly welcome that.

I also take the point that in so far as defining cruelty in terms of serious harm, a very great bringing together of two concepts has been achieved; that is, the definition of “significant harm” in Section 31 of the Children Act 1989, which of course is the section that sets up the machinery for the obtaining of a care order, is now almost exactly the same—or so near as to make no difference whatever—as the definition of the criminal offence that this clause brings about.

I take wholeheartedly the point made by the noble and learned Baroness, Lady Butler-Sloss, that the last thing one wants to do is to bring these civil situations into a criminal court. Sometimes that is inevitable. I also take the point that it is right that social workers and those involved in the protection of children in the civil field should, as it were, have the same hymn sheet as those who deal with those situations in the criminal field. They are two different fields, which should be mutually exclusive if humanly possible, but nevertheless it is right that the same standard should apply to both.

[Baroness Walmsley]

I wonder if the noble Lord, Lord Elystan-Morgan, would be kind enough to address the House because I am having some difficulty in hearing what he is saying.

[Lord Elystan-Morgan]

Profound apologies. I was discerning perhaps a twinkle of support this side and one welcomes every little support one can get in this place. I apologise profusely to the noble Baroness.

In so far as “wilfully” is concerned, this is an extremely important development. Lawyers well appreciate that “wilful” can mean an act of deliberate commission or omission. On the other hand, intelligent lay men, be they magistrates, jurors or in any other capacity, might find it very difficult to consider that something which is pure omission can be wilful.

Then there arises the almost theological question of whether “recklessly” should be included. I think—but I might be corrected, and for this reason I shall turn to the authorities on the other side—that in so far as the statutory definition of wilful is set out here, it is in fact the classic definition adopted by this House in a case of recklessness called Caldwell in the 1980s. It was the case of a tramp, if I remember rightly, going into unoccupied premises and striking matches, who was found guilty of arson on the basis of recklessness. If am right about that, there is no dispute about the difference between recklessness and wilfulness in this connection.

I will make a general comment on Clause 62, which will not have to be repeated on clause stand part. Section 1 of the 1933 Act is 80 years old. I am one year older than the noble and learned Baroness, and therefore I was about a year old when this became law. The verbiage is much older than that. The verbiage comes from the Poor Law Amendment Act 1868, virtually all of it from Section 37.

That Act was passed in order to deal with the problem of the Peculiar People. The Peculiar People were very devout people who believed that, whenever there was illness in the family, you should not go anywhere near a doctor. You should pray to Almighty God, and accept the will of Almighty God. The consequence was that, when death occurred, and many of these people were prosecuted for manslaughter, a humane jury found them not guilty because of their utter devoutness, although, of course, it represented utter unreasonableness. It was to deal with that particular issue that Section 37 was passed.

This means that we have today still the remnant cobwebs of that Victorian verbiage. Victorian verbiage in a statute sometimes can serve us well. The Offences Against the Person Act 1861 is a classic example which will be with us for many generations, I have no doubt. However, there are cases in which one can look afresh at the whole situation and possibly create an instrument that is more consistent with the needs of the 21st century.

Communications Data and Interception

Lord Elystan-Morgan Excerpts

Thursday 10th July 2014 Lords Chamber

[Lord Taylor of Holbeach]

Had that been possible, it might have been done. Clearly, the Bill is a complicated piece of legislation and getting it right has not been easy. I think the noble Lord will understand the background against which the Bill will be presented to the House of Commons and to your Lordships’ House. In such circumstances, it was important that the Government got their own position right first. Having done that, we are very grateful for the scrutiny and advice that we will receive from the Intelligence and Security Committee.

[Lord Elystan-Morgan (CB)]

My Lords, I wholeheartedly support what has been said concerning the inhibition which now exists on the use of vital evidence by way of intercept, which makes it impossible for what would have otherwise been crucially important prosecutions to succeed. I well appreciate that there are two sides to the argument and I appreciate that final advice to Parliament on this matter is still awaited, but will the noble Lord accept that in many common-law countries the rule is different? It is left to the good sense of the prosecution whether to rely on such evidence, bearing very much in mind the sensitivity of the situation in the public interest. It does not seem beyond the bounds of possibility that the United Kingdom is coming under very severe pressure from very powerful allies in this particular matter, to her own detriment.

[Lord Taylor of Holbeach]

I do not want to go into detail today on the noble Lord’s points. However, I will examine what he said, because he is talking about procedures rather than the matter that the Bill deals with—how we handle this in legal process. If the noble Lord will allow me, I will write to him in response to his question. I am grateful to him for raising it.

Serious Crime Bill [HL]

Lord Elystan-Morgan Excerpts

Tuesday 8th July 2014 Lords Chamber

[Baroness Williams of Trafford]

My Lords, to answer my noble friend’s question last, and hopefully throw light on my other noble friend’s question: a “territory” is a geographical concept, the land and sea over which a state has jurisdiction. A country’s land mass may be divided into several territories, so the state of a country may also have jurisdiction over far-flung territories. For example, the state of the country of the United Kingdom has jurisdiction over various overseas territories, such as the British Virgin Islands. However, it is a matter for each state to determine, subject to the 12-mile limit. I hope I have not further confused the House.

[Lord Elystan-Morgan (CB)]

My Lords, I hope to make a marginally relevant point. Is it not the case that by now the whole concept of a belt of territorial jurisdiction, 12 miles out from land, has been outdistanced by the realities of time? Grotius, I believe, was the international lawyer, who, many centuries ago, advocated a three-mile limit. Why? Because that was the range of a powerful cannon in those days. Then, ordnance became more and more powerful. Today, 12 miles is nothing in relation to the power of ordnance. Should not the whole question of the 12 miles therefore be eradicated?

Student Visas

Lord Elystan-Morgan Excerpts

Tuesday 24th June 2014 Lords Chamber

[Lord Taylor of Holbeach]

I am not an arrogant sort of person, as my noble friend will know, and I think that there are lessons for the Government to learn from this situation. It is right that we should seek to learn these lessons. I agree with her that many of the individuals involved may well have been perfectly innocent of the circumstances in which they now find themselves, of being illegally in this country, having applied through one of these bogus entry systems, which contain in them a germ of criminality, as I said earlier. How that aspect is dealt with will be a matter for the courts to decide. Meanwhile, as I say, I am quite prepared to accept that there are things that the Government can learn from this experience, and there is a need to ensure that we play our part in supporting universities in their job.

[Lord Elystan-Morgan (CB)]

My Lords, the Minister very properly makes the point that the vast majority of foreign students are perfectly genuine entrants into the United Kingdom. However, there are two issues, one of which is the bogus student. I applaud the Government for their action, but I hope that they do not send an unfortunate message, which they do not intend to send, with regard to the general welcome of students into the United Kingdom.

The other issue is that of the genuine student in relation to the classification of immigration. As I see it, the situation is this: over the past two years, the Prime Minister has said very clearly that he wishes to see annual immigration reduced to a figure below 100,000. I think that is a fair estimate of what he said. At the same time, it has been said time and time again in both Houses of Parliament that genuine students are nevertheless to be regarded as immigrants. That is the classical and historic way in which they have been regarded, and I believe they were regarded in that way by the previous Government. In light of the fact that the number of genuine students whose genuineness is not in any way in dispute is in excess of 100,000 per annum, how can the two objectives ever be served—in other words, keeping immigration below 100,000 and at the same time welcoming every genuine non-EU student? At the moment there is a dichotomy. What do the Government intend to do about it?

[Lord Taylor of Holbeach]

I think that I have made our policy clear—namely, to encourage genuine students to this country. I do not see any fundamental difficulty with that, and I am not in favour of moving the goalposts on this issue. The Government have their objective of reducing net migration. The noble Lord suggests that that might be in conflict with a policy which encourages genuine students to come here. I do not believe that the two are incompatible. I think that it is possible to achieve both and it is certainly the Government’s aim and ambition to do that. However, to do that, we need the co-operation of the university and college sector. No gathering of individuals contains more people associated with universities and colleges than perhaps this House. I appeal to everyone who is involved in university courts, is a vice-chancellor or is involved in any way whatever to emphasise the Government’s determination to maintain the importance of the sector but also to emphasise to those involved in university administration the importance of applying their mind to the consequences of illegal immigration to this country and of playing their part in seeking to eliminate it.

Serious Crime Bill [HL]

Lord Elystan-Morgan Excerpts

Monday 16th June 2014 Lords Chamber

[Lord Elystan-Morgan (CB)]

My Lords, in dealing with the Second Reading of yet another miscellaneous provisions criminal Bill, there is a sneaking temptation to have a tour d’horizon of the contents of the Bill and, indeed, to repeat a point that I have sought to make probably half a dozen times over the past eight or nine years—that is, that the legislative fecundity of the Home Office for such Bills should in some way or another be curbed. It may be that the only humane way of doing that is to have a written constitution with a Bill of Rights and to see to it that the Home Office is limited to no more than one Bill of that nature per annum.

On this occasion, however, I want to take a totally different course and concentrate completely on one single matter in the Bill: Clause 62. As the House knows—it has already been referred to by noble and learned Lords and by the noble Baroness—that clause deals with two amendments to Section 1 of the Children and Young Persons Act 1933. The effects are limited. One is to see to it that that which may well have been implicit in the original wording of the measure is now made explicit—namely, that it should refer not only to physical but to non-physical consequences. The situation was somewhat complicated in 1981 when this House dealt with the matter of Sheppard. In relation to the situation of children, it held that Section 1 of the 1933 Act should not in any way deal with spiritual, educational, moral or emotional matters but only with physical ones. That decision, arrived at by this House, was a heavy gloss, which has now been undone by including psychological harm with physical harm. We will, no doubt, discuss whether the term “psychological harm” is wide enough to incorporate all the other, non-physical, matters at a later stage.

The other part of the amendment deals with the exclusion of Victorian verbiage which describes certain situations that are illustrative of child cruelty, and it is entirely proper to take that attitude. However, although these two amendments are entirely meritorious and proper, they fall very far short of what the aims of a progressive society should be, on the issue of child neglect, in the 21st century. As the House well knows, and as many people better qualified than me can testify, it is one of the most massive problems of the present day. Neglect leading to cruelty is often at least as serious as physical or sexual abuse of a child. In many ways, it may be more sinister as it is more difficult to identify and reveal. It is very broad in its possibilities and may range from failure to give a child the food and clothing it requires to the other extreme of failure to show a child the love and affection that one would wish every child to receive.

Many people are extremely well versed and have campaigned in this field. In particular, I note the contribution of the noble and learned Baroness, Lady Butler-Sloss, in this matter. Many come to the conclusion that as many as 10% of our children suffer some form of substantial neglect. We should look at this provision against that template. We are not ungrateful to the Government for their initiative, but it falls far short of what is necessary in the circumstances. I appreciate that this is Second Reading but, since I am challenging the Government’s fundamental approach, it is right to argue at this stage that a totally fresh approach should be taken. Why is this? The 1933 Act is 80 years old but its provisions are much older as they were taken, word for word, from Section 37 of the Poor Law Amendment Act 1868.

That Act was passed in very special circumstances, to deal with a sect called the Peculiar People. They were very genuine people who were very firm in their religious beliefs, to the effect that if a person—particularly a child—was ill, one should not for a moment think of a cure or of approaching a doctor, or giving medicine. Instead, one should resort to prayer. If the child died, so be it: it was the act of God. To go contrary to this was seen as utterly blasphemous. As a result, many persons charged with manslaughter on the death of a child were found not guilty because of their innate—but utterly unreasonable—genuineness. It was for that purpose that that particular provision in Section 37 of the 1868 Act was passed. Much of that verbiage is still in Section 1(1) and (2) of the 1933 Act.

I am not arguing that just because there is Victorian verbiage one should get rid of it. I have lived as a lawyer for many years with the Offences against the Person Act 1861. I suspect that many generations of lawyers still to come will do exactly the same. It is a splendid Act and most of its provisions work really well. In this case, however, we are dealing with the cobwebs of a Victorian attitude which is utterly irrelevant and inappropriate for the problems that we seek to beat in relation to this matter. For example, even if the amendment is carried—and I have no doubt that it will be—the whole concept of child neglect and cruelty will turn on the question of whether the person who is perpetrating such conduct is doing it wilfully. To many lay people, magistrates, police officers and jurors, “wilful” means something that a person does deliberately. Conceptually, however, “neglect” is essentially a matter of omission. Lawyers understand the difference, but intelligent lay people do not find it so easy to make the distinction.

In addition, there are five ways in which the offence can be committed. First, we have a wide range of offences of assault, including common assault and sexual assault. Nothing needs to be said about that. Secondly, we have “ill treatment”, but apparently nowhere is it defined in the law, in statute or elsewhere, comprehensively. Thirdly, we have neglect, but that begs the whole question of the difficulties that we are talking about. Fourthly, there is abandonment. I suggest that that part of the law has fallen into desuetude: the last prosecution was in 1957. Fifthly, there is exposure. That has fallen into even greater desuetude: the last prosecution was in 1910.

These matters have to be tackled. I salute the efforts of Action for Children and other similar progressive bodies in this regard. A Bill has been drafted which concentrates essentially on defining the offence as maltreatment—which is an excellent expression—but it also refers to maltreatment that either causes or raises the danger of causing significant harm. What is the beauty of that? Significant harm is the essential core and kernel of harming a child under the Children Act 1989. Therefore the suggestion made by progressive societies, and the measure introduced in the House of Commons a year ago by Mr Mark Williams, the MP for Ceredigion, who is also my MP, would mean that for the first time the civil law and the criminal law would look at child cruelty in exactly the same way and according to the same definitions. Social workers and police officers would read from the same brief.

There is much more that one could deliberate on, but this is not the time to do it; we will have a full opportunity for that in the coming months. Knowing that the Minister is resilient to such appeals, I urge him to consider carefully that this is a glorious opportunity to erase completely a great deal of cobwebbed complication and that we can start afresh. Let us define this all-important aspect of the criminal law in such a way that it best serves the needs of our children. I give the Minister notice that we shall plumb the illimitable depths of his good will in this matter, and I very much trust that we shall not find him wanting.

Police and Crime Commissioners

Lord Elystan-Morgan Excerpts

Wednesday 11th June 2014 Lords Chamber

[Lord Elystan-Morgan (CB)]

My Lords, the Minister has made the point that the test may well come when police and crime commissioners are up for election. Does he accept that an ironic situation could arise where commissioners will be asked to justify undertakings that they have given and which have not been fulfilled, and say, “It is not my fault but the fault of the chief constable”, and the damage that that could do to the system? Can the Minister tell the House the number of chief officers of police who have been dismissed since the system came into force, and in what other circumstances the Inspectorate of Constabulary has been involved?

[Lord Taylor of Holbeach]

My Lords, the noble Lord is wrong to assume that those will be the terms under which the election of the successor PCCs will take place. I foresee a considerable interest in PCCs in May 2016; there will be a great deal of public interest in making sure that the people elected to these important posts are in fact the people whom they believe will represent them. As to the figures, I shall be happy to write to the noble Lord but I cannot give them to him at the moment.

Alexander Litvinenko

Lord Elystan-Morgan Excerpts

Monday 24th March 2014 Lords Chamber

[Lord Taylor of Holbeach]

My Lords, the noble Lord is being rather uncharacteristically churlish about the Answer I gave. These are complex and sensitive issues, as I hope noble Lords will appreciate, and it is right that the Home Secretary gives proper consideration to whether or not to hold an inquiry. That is her right and we should support her in that.

[Lord Elystan-Morgan (CB)]

My Lords, does the Minister recollect that on 11 February this year Lord Justice Richards, in giving the judgment of a unanimous and strong Court of Appeal, examined in detail each and every one of the six reasons given in the decision letter by the Home Secretary and rejected each and every one of them absolutely? He crystallised the situation with this sentence:

“If she is to maintain her refusal she will need better reasons than those given in the decision letter, so as to provide a rational basis for her decision”.

Does the Minister accept that failure to allow this matter to be properly examined under the Inquiries Act 2005 would not only be a denial of the justice that the assassinated Litvinenko deserves but a breach of the commitment that the United Kingdom has shown so honourably over the years to the rule of law?

[Lord Taylor of Holbeach]

My Lords, the Government have sought justice in this case ever since Mr Litvinenko died in 2006. That remains the position. This crime took place in this country and involved a British citizen. We want to see those whose arrests were sought by the Crown Prosecution Service—Andrey Lugovoy and Dmitry Kovtun—brought to and put on trial in the UK. Meanwhile, the noble Lord has emphasised why it is important that the Home Secretary gives proper consideration to the need for an inquiry.

EU Police and Criminal Justice Measures: EUC Reports

Lord Elystan-Morgan Excerpts

Thursday 23rd January 2014 Lords Chamber

[The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach) (Con)]

My Lords, before I tackle the issues raised in this debate I extend my thanks to the European Union Committee of this House for its ongoing work in this matter. This Government are extremely grateful to the committee; we do not necessarily agree but we are grateful for the work that is being done. I join the noble Baroness, Lady Smith, in the comments that she made about its work. The committee informs this House and the Government, and I am aware of the diligence with which it undertakes its work. We are aware of the role that Parliament has in scrutinising these matters and it should do so informed by the work of its committees, so I pay a genuine tribute to them all.

The committee’s initial report was helpful in informing the Government’s decision about the measures that we are seeking to rejoin, and I found its follow-up report to be particularly thought-provoking. Taken together, and it has been useful to be able to do that today, these two reports represent an extremely thorough analysis of a complex issue. The committee has produced a formidable body of work for the Government to consider.

On 23 July, I set out to the House my openness to debating the committee’s report. I thank the noble Lord, Lord Hannay, for making that possible by calling this debate today. I also thank him for his excellent work and insight into this matter as chairman of the sub-committee. The Government are appreciative of the committee’s continued scrutiny of these important matters and I thank the noble Lords, Lord Boswell and Lord Bowness, neither of whom are in their place today, and the noble Baroness, Lady Corston, for their chairmanship of the committees. These are sincere thanks, in which I join with the tribute paid to their work by the noble and learned Lord, Lord Lloyd.

I hope that noble Lords will accept that some of the questions I have been asked are complex and difficult. I do not want to mislead the House in any of my responses and with the consent of the noble Lord, Lord Hannay, I intend to write to him and to copy in all noble Lords who have spoken in this debate, and place a copy of that in the Library. This will enable me to deal with those matters which I am not necessarily able to deal with today. I hope that noble Lords will appreciate that type of commentary, which we have had before when discussing these issues.

Scrutiny can be an iterative and long-running process, especially on a matter such as this. Some have argued that the Government have not made the case for exercising the opt-out. On that point, I think we have to agree to disagree. The case for exercising the opt-out has been clearly set out and, as the noble Lord, Lord Hannay, set out in his opening speech, the House has already endorsed the Government’s decision. The House has also endorsed the Government’s decision to seek to rejoin the 35 measures set out in Command Paper 8671. I am pleased that the committee is persuaded by the evidence that the Government have set out to Parliament. I am also pleased that the committee has reopened its inquiry. Its views on the measures that we are not seeking to rejoin are welcomed and the Government have responded in full on those issues.

Before I turn to the points raised during the debate, I reiterate the Government’s commitment to holding another vote on the final package of measures that we will apply to rejoin.

[Lord Elystan-Morgan (CB)]

Does the noble Lord, for whom I and everyone here have an immense respect, agree that the whole issue can be distilled into a single question: how is it sane and sensible and sincere for the Government to place in jeopardy 35 measures of considerable worth in the expectation of, at best, a minuscule advantage in respect of 95 other matters that are either wholly irrelevant, non-operative or in no way injurious to our interests? I respectfully suggest that that is the issue.

[Lord Taylor of Holbeach]

As the noble Lord knows, the Government are exercising an opt-out that was provided for by negotiations by a previous Government. Noble Lords will expect the Government to exercise their discretion in this matter and to seek the endorsement of Parliament, as they have done on this occasion. I make no apology to the noble Lord for the decision that this Government have made. It was a decision that was anticipated by the previous Government in their negotiations.

As I was saying, before I return to the points raised, I confirm that there will be another vote on the package of measures that we will apply to rejoin. It is important that Parliament is given the opportunity to scrutinise this matter fully. I am very happy to commit myself to replying for the Government during that debate later this year.

I start by responding to some of the points of the noble Lord, Lord Hannay, in his excellent speech. I could not agree with all that he was saying about the Government’s performance or decision-making or role, but he set out a number of important points that have helped to guide this debate and I am happy to reply to them.

The noble Lord, Lord Hannay, and my noble friend Lord Sharkey addressed the point of whether there are measures that are detrimental to the UK and the UK’s national interest. The noble Lord, Lord Davies of Stamford, asked if this were the case. That is one way to assess these measures. However, is not the way in which the Government have assessed them. The Government have looked at how each measure contributes to public safety and security, whether practical co-operation is underpinned by the measure and whether there would be detrimental impact on such co-operation if pursued by other mechanisms. We have considered the impact that the measure has on civil rights and liberties. We believe that the 35 measures that we are seeking to rejoin meet these criteria.

The noble Lord and the noble and learned Lord, Lord Lloyd, asked why the Government have opted in to post-Lisbon measures if we have concerns about European Court of Justice jurisdiction. The Government consider that there is always a risk attached in terms of European Court of Justice jurisdiction. All Governments have faced this when we decide to participate in measures—pre-Lisbon or post-Lisbon. However, in certain cases, it will be in the national interest for the UK to participate in these measures, and the Government will accept that risk, given the wider benefits of the instruments in question.

Anti-social Behaviour, Crime and Policing Bill

Lord Elystan-Morgan Excerpts

Wednesday 4th December 2013 Lords Chamber

[Lord Stevens of Kirkwhelpington]

My Lords, I, too, support my noble friends Lord Blair and Lord Condon and have little to add to what they have said. However, I would flip the coin on to the other side and ask the Minister and the Government what the strong reasons are for doing this. If there are strong reasons, let us hear them.

[Lord Elystan-Morgan (CB)]

My Lords, I am sure that it will come as no surprise to the Minister that I take exactly the same view as that put forward with so much restraint and moderation by the three noble Lords who have spoken. I considered the appointment of police and crime commissioners a tremendous mistake on the part of the Government and the Opposition. Both parties, I think for the best reasons in the world, believed that there had to be some supervision of the police force that would satisfy certain doubts and fears rampant among the public at the time. I believe with all my heart and conviction that they were wrong. It was wrong to consider that a commissar—for that is really what a commissioner is—could be introduced into a force that has a structure of disciplined hierarchy without defeating the very basic element of discipline in that force. You could not do it in the armed services unless it happened to be the Red Army or the army of the People’s Republic of China. You would not think of doing it in the armed services. It has the effect of eating like acid into the morale of the police—we have already seen very many instances of how the life of a chief constable can be made absolutely impossible by a commissioner, and we will see worse.

I am no prophet or son of a prophet but I am sure that as time runs on and the period of a commissioner’s tenure comes towards its end, where that person gave huge promises and undertakings as a candidate that have not been delivered, he will turn round and say, “This is all due to the chief constable. This man”—or this woman—“has to be removed”. I cannot imagine anything that would eat into the morale of the police service in a more destructive way than that. If my noble friends had proposed cancelling the powers in Clause 126, I would have supported them. I would support anything that diminishes the authority of a commissioner and, for that reason, I support this amendment.

I say, with great humility, that my attitude has everything to do with what I conceive a police service to be. I had the very high honour—believe it or not, 45 years ago—to be police Minister in the other place, serving under James Callaghan. James Callaghan would say very often, “Do you know what the police service is, as far as I am concerned? It is a case of citizens in uniform”. The powers that the ordinary constable has today have been increased over the past 45 years but they are still moderate in relation to the general powers and responsibilities that the ordinary citizen has. The powers of arrest are not immensely greater, but I am not here to lecture the House on that matter.

I will say that the concept of a commissioner was wrong. Anything that can dilute those powers will be right and anything that would give him the power that is possibly inherent—there is dubiety about the matter—in the execution of Section 126 is to be very much welcomed.

At the moment we have a clutch of scandals in relation to the police. It gives me no pleasure at all to make that point. The situation was not very different in the early 1960s, when the royal commission under Sir Henry Willink was set up. The work that was done was brilliant and imaginative. It led to the Police Act 1964, which was one of the most progressive advances made in relation to policing in the United Kingdom. I think that such a study is due again, and should examine very carefully whether we need the office of a police commissioner.

I will end with an edited quotation from Oliver Cromwell, to his Long Parliament: “Consider that you may yet be wrong”.

[Lord Imbert (CB)]

My Lords, I support my noble friends Lord Blair and Lord Condon. As we know, they were both commissioners of the largest, most envied and most copied police service in the western world, the London Metropolitan Police, as was I for six years from 1987 to 1993.

The amendment is about Section 126 of the anti-social—and, it seems, in some respects anti-police—Bill that is before us. No, I have not made a mistake. This Bill and other legislation that the Government have brought forward in the past few years accurately reflect their disdain for the police service in this country. Indeed, it reflects the contempt in which the Government hold the service that other Governments and police services throughout the world hold as the example and model, and which every country I visited during my career wished to emulate.

These countries include in particular the USA, where they wanted to know about the British way; Russia, where I was asked to speak to senior personnel about policing in a democracy; South Africa, Malawi, Kenya and other African states; France, Italy, Germany, Australia, Japan and Argentina. I shall not go into detail at this stage as I do not wish to detract in any way from the articulate, intelligent, sensible and persuasive way my noble colleagues have put the case for this amendment, on serious—indeed, very serious—security grounds.

If your Lordships do not care about the future security of this country, or the essential exchange of vital security intelligence with other countries and their security services around the world, you will reject the amendment.

If you leave the clause unamended, you may well be closing the door to the exchange of vital intelligence and information, which is likely to spell danger to this country and make impossible the duty facing our security services and police in their task of keeping us free, or as free as they possibly can, from terrorism and serious, violent and organised crime.

I therefore implore all noble Lords to take note of what my noble friends have said and accept this most important amendment. In my opening remarks, I said that this and other legislation brought forward by this Government reflected the disdain and contempt in which the ruling political party holds the police in this country. I cannot, like many thousands of serving police officers, whose morale is at the lowest ebb since the 1950s, refrain from concluding that some clauses are there because someone has said, “Yes, go on. Put that in. That will give them a bloody nose and show who’s running the show”.

Your Lordships may not be surprised that the first example of that disdain—forgetting about the “f” word being used by a senior member of the Government in a disgraceful incident at the gates of Downing Street—was the Police Reform and Social Responsibility Bill, which made provision for the election, at enormous cost, of so-called police and crime commissioners. The noble Lord, Lord Elystan-Morgan, referred to those persons as commissars. It was intended that those individuals would hold the chief constable to account and have the power to dismiss the chief officer and appoint someone of their choice—even someone of his political party—as the chief constable. Shades of the situation in Nazi Germany in the early 1930s, when traditional policing had to give way to political chief officer appointments. We know how that progressed. It could not happen here, of course, could it?

I speak as a Cross-Bench Member of your Lordships’ House, but I admit to being a failed Conservative. The first step on that path to failure was during the time of the YouGov poll at the same time as your Lordships were discussing the Police Reform and Social Responsibility Bill, designed to bring about the appointment of police and crime commissioners, together with a large staff and not inconsiderable salaries. Although no less than 65% of those polled did not want the system and only 15% did, the Government took no notice of that demonstrable public opposition. At the same time as the NHS closed a number of accident and emergency departments on the grounds of cost, the Government somehow earmarked £100 million for the introduction of the PCCs.

The Government remained unmoved although, on the day when the public were given the opportunity to vote for their PCCs, we found that the majority of the electorate decided not to vote—most of those who I know, as a protest, they said. That was a clear indication of the public’s mood which the Government laughingly put down to bad weather keeping those entitled to vote at home. Or was it that the Government did not care what the public thought? Was that yet another example of the Government’s intransigence, demonstrating that they are the ones who make the rules? If they want the rules changed, they change them. After all, they are the governing party and we are mere constables or PCs.

There have certainly been mistakes with the introduction of these ill advised and unbelievably costly, unwanted and unnecessary schemes. Let us not make further mistakes which will not only be costly but may well be a danger to the public—those whose protection should be of paramount importance to any Government. I therefore urge your Lordships to support and accept the amendment tabled by my noble friends.

EU: Eurojust (EUC Report)

Lord Elystan-Morgan Excerpts

Monday 4th November 2013 Lords Chamber

[Lord Rowlands (Lab)]

My Lords, if only I could improve upon the powerful and compelling case that the noble Baronesses, Lady O’Loan and Lady Corston, and the noble Lord, Lord Hodgson, have made on our committee’s report. This time last week, we had a consensus on our report on the EPPO. As I understand it, we have a consensus of a rather different kind tonight: a consensus of two Front Benches opposing our report. I find that all the more puzzling given the events of the past week or two.

As the noble Lord, Lord Hodgson, said, since we wrote this report, the context has changed. We have seen a very significant and “important”—in inverted commas—rebellion across a number of European Parliaments to the draft proposal on the EPPO. It was our case that if the Government joined in the debate and discussion on Eurojust, they would find enough allies to change and alter that report effectively. Surely the evidence of the past week or two has been that there are such allies and that if one engaged in an active and proactive way on this measure, one would find enough allies to change or transform the report itself. Our case has been strengthened by the events of the past week or two, and therefore I am puzzled if both Front Benches for some reason oppose the conclusions of our report.

We all accept the value of Eurojust. The Government accept the value of Eurojust. They want to opt back in to Eurojust under the opt-in proposals. We all support that opt-in to the system. I certainly share the Government’s concerns about the existing draft proposal. Almost all those concerns are about the interrelationship between it and the proposed draft for the EPPO. If those fall—if, in fact, the Commission is going to have to withdraw or revise its proposal—surely there will be a consequential fallout in the draft Eurojust proposal. Will the Minister bring us up to date on what has happened since last Monday, when there were enough reasoned opinions across Europe to mean that the Commission will have to review it? What has the Commission intimated? It has suggested that it is going to do so, and it accepts and understands the voices of concern. If it does that, does it not also have to review and almost withdraw this proposal because they are totally interlinked? A portion of the Eurojust draft is related to the proposed public prosecutor’s office. Will the Minister tell us whether, if the Commission has to review the EPPO, it will also probably have to undertake some kind of review of this draft?

In this case, we have a compelling case for joining in the negotiation because we now have a good clear view that we could affect those negotiations in a very positive way. As other members of the committee have said, one of the things that swung me in favour of our report—and I was sceptical at the beginning because I understood and appreciated the Government’s concerns—was that we could influence this because we sensed there would be a lot of other supporters. The other reason why I supported it was that I looked down the road and thought that a bizarre situation could happen in which the Government opt in to the existing measure and then find that this measure has been revised and it belongs to an existing measure which down the road may well be of a different kind, and they have opted out of that. I think that would cause a very puzzling and bizarre situation in the relationship between the United Kingdom and the Eurojust system.

There is one thing on which we surely have consensus: we are in favour of Eurojust and we are in favour of the United Kingdom’s participation in it. Therefore, I beg the Minister to tell us what has happened since last Monday and whether the impact of what happened in the past week or two means that the Government should rethink their position on this issue and should at least keep an open mind on the question of opting in, negotiating and influencing what I think is a very important organisation.

[Lord Elystan-Morgan (CB)]

My Lords, the matter before the House concerns only Eurojust, but it is clear that Eurojust and the EPPO have a very close nexus one to another. There are two ways of looking at that nexus: one is positive and the other is negative. It seems to me that the Government, and the Opposition for that matter—one is in the luxurious position on the Cross Benches of being able to say, “A mild plague on both your houses”—are approaching the matter from an utterly negative point of view. The Government have asked the question: is Eurojust in any way tainted by association with the EPPO? They answered yes; ergo, it must be rejected.

I argue that there is a forceful and utterly convincing case to the contrary. I am proud to say that I, too, am a member of Sub-Committee E. We have heard a great deal of evidence over the months with regard to European fraud. The official figure for fraud was €440 million or something of that nature. I do not think that anybody applied their minds to it properly, as the evidence was very different, appearing to range somewhere between €3 billion and €5 billion, possibly even in excess of that latter figure. Nobody was charged with overarching responsibility. That is where the case for the EPPO comes in. There is a saying in Welsh: “Everybody’s concern is nobody’s responsibility”. That is the situation here. Unless there is a body that is charged with the particular commission of looking at European fraud in a serious way, as has never happened before, I think that the whole system will be jeopardised to its very roots.

If one accepts that there should be an EPPO—and the noble Lord, Lord Hodgson, has pointed out that the objections are sere thin, casuistic and have no merit whatever—it seems to be the case that the Eurojust situation very much fits into that picture. It seems to me that the whole situation is tainted by the prejudices that have become so prevalent in the last few months in relation to Third Pillar matters. We have heard abundant evidence to show that it does not matter a row of beans what we do about 90 to 95 of those 130 measures, as most of them have virtually no effect upon our situation. One or two are of peripheral significance. Yet somehow or other the Government have managed to taint the whole situation by pretending that this is a massive battle for British sovereignty. In doing so, they are jeopardising something like 30 to 35 matters that are of crucial significance in so many different fields, and doing so cynically in order to pretend that we are somehow winning a great victory in relation to the 95 matters that never mattered at all.

I therefore very respectfully ask the Minister, whom I believe to be one of the most reasonable Ministers in government, to consider yet again whether he may be wrong in this particular matter.

[Lord Hope of Craighead (CB)]

My Lords, perhaps it is appropriate that someone who was not a member of this sub-committee should say a word or two about this issue. I come to this against the background of having been chairman of Sub-Committee E more than a decade ago, when Eurojust was just appearing on the horizon.

It is fair to say that initially there was a certain amount of suspicion as to whether it would be right for the United Kingdom to have any part to play at all, for reasons that are easy to understand: we have our own system for the administration of justice, our own prosecutors and prosecution system, which is so very different from that in the countries on the continent. However, I have kept an eye on this from a distance, and everything that has happened since then has supported the points that have just been made: Eurojust is beneficial and indeed essential to the battle against cross-border crime that we all must face up to. The only way to deal effectively with cross-border crime is cross-border co-ordination. The report says that pan-European co-ordination is required. Indeed, it is global co-ordination that is required.

From my position, based in Scotland, I would attach considerable importance to the evidence that was given by the Lord Advocate. I know that the Lord Advocate and his team have been closely involved in matters that lie at the heart of the Eurojust project. I will not mention names, but various issues have arisen where they have been hands-on in dealing with cross-border matters and the co-operation that is available through Eurojust has been absolutely crucial to the way in which they have been able to carry out their work. I do not think that anyone in the justice system in this country would have any doubt that Eurojust is beneficial and something that we should continue to support and be part of.