Policing and Crime Bill

Lord Garnier Excerpts

Monday 13th June 2016 Commons Chamber

[Madam Deputy Speaker (Natascha Engel)]

Order. We have about an hour and a half before the winding-up speeches start, and there are eight Members wishing to speak. If we can keep to about 10 or so minutes, everyone should be able to contribute.

[Sir Edward Garnier (Harborough) (Con)]

I would not criticise for a moment the shadow Home Secretary for speaking for 45 minutes. He had a lot to say and spoke with great passion. He knows a lot about the bereaved Hillsborough families and all the associated issues, so I do not want to criticise him. If I may, however, before coming on to talk about new clause 23, I would like to say something gently to the right hon. Gentleman.

I do not know the Silk—I have never met him—to whom he twice referred and accused of unattractive conduct. That Silk was speaking on instructions, and I assume that, in line with the traditions and professional standards of the Bar, he did not set out deliberately to attack people. He was acting for the two relevant public authorities on the two separate occasions. It was his duty to put the cases for those clients. The cases might well have been unattractive and might well have come across as deeply upsetting to the people who were cross-examined, but it was his professional duty to act in that way. Another barrister might have done it differently or another client might have given different instructions, but it is a bit mean, if I may say so, to call out a particular barrister here in the House of Commons.

[Norman Lamb]

Will the right hon. and learned Gentleman give way?

[Sir Edward Garnier]

I do not want to be distracted when we have so little time. I just wanted to defend the method by which members of the profession have to represent their clients. That aside, there is little on which I wish to criticise the shadow Home Secretary.

In the short time available I want to speak to new clause 23, which removes the requirement for prior authorisation in section 60AA of the Criminal Justice and Public Order Act 1994, so that

“Where a constable…reasonably believes that an offence has been, or is being, committed he may…require any person to remove any item”

when it is used

“wholly or mainly for the purpose of concealing identity”.

The context in which I tabled the new clause—with about 22 other right hon. and hon. Members—goes back, as I said, to the Criminal Justice and Public Order Act 1994. Section 60 states:

“If a police officer of or above the rank of inspector reasonably believes…that incidents involving serious violence may take place in any locality in his police area, and that it is expedient to give an authorisation under this section to prevent their occurrence, or…that persons are carrying dangerous instruments or offensive weapons in any locality in his police area without good reason, he may give an authorisation that the powers conferred by this section are to be exercisable at any place within that locality for a specified period not exceeding 24 hours.”

That section gave the police a geographically limited and time-limited power to do certain things. That was extended in 2001 by the addition of section 60AA, which gave the police a power, in that geographical area and for that limited time, to require the removal of disguises. Provided that there was prior authorisation, provided that that authorisation was written, and provided that it was for 24 hours unless extended by another officer for a further 24 hours, within that limited location, the constable in uniform was enabled to

“require any person to remove any item which the constable reasonably believes that person is wearing wholly or mainly for the purpose of concealing his identity”

and to

“seize any item which the constable reasonably believes any person intends to wear wholly or mainly for that purpose.”

So it was not until 2001 that the 1994 Act was amended to allow the police, in certain limited circumstances, to be authorised to deal with disguises.

As the House will recall, in August 2011 there were widespread riots throughout the country, following which the Government issued a consultation paper to consider whether three things needed to be looked at: the use of the word “insulting” in the 1994 Act, new powers to request the removal of face coverings, and new powers to impose curfews. The Government thought it appropriate to consult about new powers relating to such matters as disguises, saying:

“The…consultation aims to progress the commitment made by the Prime Minister following the recent disorder in respect of new powers to request the removal of face coverings. After the ransacking and arson by looters wearing masks to conceal identification, the Government announced that the police would be given extended powers to demand the removal of face coverings under any circumstances, where there was reasonable suspicion of criminal activity.”

Interestingly, the Government did not respond to the consultation other than in relation to “insulting words or behaviour”; the law was amended in that regard. In respect of the power to require the removal of face coverings, the law remains as it was in 2001. As I have said, that power is geographically limited and time-limited, and requires prior authorisation.

I have had the benefit of two meetings with my right hon. Friend the Minister for Policing, Fire, Criminal Justice and Victims, who generously allowed me, and two of my hon. Friends, to try to persuade him that the law needed to be changed. On that occasion there were only eight officials in the room, but he seemed to be unpersuaded, on the basis of the advice that he had been given by officials and police officers, that a change in the law was necessary. Indeed, I think it was suggested to me that our new clause would weaken the powers of the police to remove disguises.

We need to recognise that the people who attend demonstrations wearing balaclavas or other face coverings are not doing that simply to prevent their identities from being discovered. Clearly, if a demonstration involves unlawful activity and the police are able to film it, or it is covered by local authority CCTV cameras, there is no better way for people to avoid detection, or avoid being caught, than disguising their faces. In most, although not all, criminal cases, the identity of the perpetrator is a fairly central part of the prosecution case. I am reasonably sure that in the olden days when robbers used to run into banks with shotguns and hold them up, normally wearing stockings over their faces, they were not wearing silk stockings on their heads because they liked the feeling of silk on their faces; they were wearing those silk stockings—or even tights, in which case it would be nylon on their faces—in order to prevent themselves from being discovered.

The same thing, I suspect, goes for people who are intent on pretty unattractive behaviour in the streets here in London, and in Manchester at last year’s Conservative party conference, where people in masks spat at delegates going into the conference hall, but they also do it to intimidate. There is nothing more intimidating than seeing somebody covered like that coming at you or demonstrating with a view to causing trouble. Yes, of course, there are laws already on the statute book or, no doubt, under common law which make it possible for a police officer to arrest somebody wearing a face mask if they are committing an offence. But in the event that there is a large-scale demonstration and there are not enough police officers to make it safe or practical for the police officer to go in, and therefore the police need to rely upon video evidence or film evidence of the perpetrator, it strikes me as unreal for a police officer to rely upon the existing power, which is geographically limited and time-limited, in order to deal with the matter.

[Mike Penning]

rose—

[Sir Edward Garnier]

Is my right hon. Friend getting restless?

[Mike Penning]

I am just conscious that I may not have enough time to cover everything in my winding-up speech. My right hon. and learned Friend indicated earlier that I was not persuaded. I did listen to the police officers, but a review of the PACE code A is coming through for stop-and-search later this year. We will insert face coverings into that review so we have a better understanding, and if a change is necessary, that will take place. I think that is a significant concession.

[Sir Edward Garnier]

That is a change of attitude, and I am grateful for it, but I am not sure that a review is what we need; what we need is action. My understanding is that the police do not want this change because they think—at least some of them do—that the power they have is adequate for what they need to do, but it is not, because these events are happening. People are being terrified, and people are being inhibited from going about their lawful business in the countryside and in urban areas, and it is not good enough for us to rely on a change in the PACE code or following some review.

The Government did not reply to their own consultation in 2011, and I do need to press them a little harder to ensure that this matter is properly ventilated. One of my jobs as a Member of Parliament is to express the concerns of the public from my constituency, and from other parts of the country as well, who are dissatisfied about the level of policing for this sort of behaviour.

[Mike Penning]

I am sure that my right hon. and learned Friend realises that a review of PACE is nothing to do with what the police want. We did a review of stop-and-search because it was being inappropriately used by the police, and that is why we changed the rules. If we find during the PACE review that the legislation is not being used in the way our constituents would expect, PACE will be changed. That is why we are doing the review. PACE reviews do not come up very often; this is a golden opportunity.

[Sir Edward Garnier]

I look forward to seeing the terms of the review, and I trust the Minister when he says it is going to be useful, but right now constituents in rural and urban areas are very distressed at the way in which face masks are used to terrify and to hide the identity of criminals. The sooner this matter is debated—with reasonable time to conclude it—on the Floor of this House or in the other place—

[Geoffrey Clifton-Brown (The Cotswolds) (Con)]

I am one of the co-signatories of my right hon. and learned Friend’s new clause. The problem with the situation at the moment is that the constable on duty may require a face covering to be removed but he does then require post-authorisation from a senior officer on duty. In the Blackpool case and in my own case on the badger culls, where someone was parked in a car late at night for several nights with masks on deliberately to intimidate the residents inside the nearest farmhouse, I am not sure whether the constables on duty knew whether they would or would not get that prior authorisation or post-authorisation, and my right hon. and learned Friend’s new clause will make this crystal clear if it becomes part of the Bill.

[Sir Edward Garnier]

I am grateful for my hon. Friend’s support, and I hope our new clause will make it easier for the police to do what the public require them to do, which is arrest frightening people who are intent on doing criminal things.

--- Later in debate ---

[Mike Penning]

This is probably way beyond my portfolio, but as a father I would ask, if someone is assessing a child who has been abused, how can they not assess them for mental health damage that may have occurred? That is the natural thing to do—I will probably get shot for saying that, but at the end of the day that is probably the moral position. How that is done is for the right hon. Gentleman’s former Department and social services to address.

I turn to facial coverings and new clause 23, which was tabled by my right hon. and learned Friend the Member for Harborough (Sir Edward Garnier) and other colleagues. I think we have reached a consensus. I arranged for Assistant Chief Constable Paul Netherton to lead on the issue for the whole country within the police. Very unusually for a senior police officer, or indeed for any police officer, he said, “Don’t give me any more powers. I am happy with the powers we have,” In our meetings, however—I am happy to share this with the House—it was conceded that the way the current legislation is being interpreted through guidance is an issue. There is also some confusion about the powers under section 60AA of the Criminal Justice and Public Order Act 1994, which concerns the need for a written authority. In reality, the police get on their radios and say, “This is the situation. I want to remove it. I think that an offence is going to take place.” The request is instantly given, and it is signed later on. That is not breaking any law; that is how the procedure works on a daily basis.

The Home Secretary and I both understand that there are real concerns about whether the measure is being implemented in a way that ensures public confidence as well as that of the police. Rather than change the law against the advice that I am getting from the police, we have proposed a review into the Police and Criminal Evidence Act 1984 code A. That does not happen often, but this autumn a review will take place into stop and search. The powers in the Bill are similar to those stop-and-search powers, and we will ask for them to be included in that code. That significant change will alleviate some of the concerns, but we must ensure that we provide those powers.

[Sir Edward Garnier]

I would not want the Minister to think that I am ungrateful for what he is suggesting—I would never be that. However, it would be helpful if he would write to me setting out precisely what he is proposing and stating the likely amendments to PACE. He mentioned a review of PACE, but he did not necessarily mention an amendment to that Act. If he would be clear on paper, that would be useful.

[Mike Penning]

Not only will I write to my right hon. and learned Friend, but I will put a copy of the letter in the Library of the House. There are cross-party concerns about some of these issues. I listened carefully to his point, but that issue is not part of the Bill and is, as he said in his speech, for later. He may think that I am trying to kick the issue into the long grass, and that is exactly what I am doing for the purposes of this Bill.

I hope that the way in which I and the Under-Secretary of State, my hon. Friend the Member for Staffordshire Moorlands, dealt with the debate in Committee has helped the Bill to progress positively. It is a long time since I received such encouragement for a Bill—other than for the Mesothelioma Act 2014, which I took through the House with a little bit of disagreement. I am adamant that this Bill, and the measures it contains, will be a legacy for the Hillsborough families and the campaign that they have taken forward for 27 years. I am sorry that we cannot agree on everything, but as I have indicated, even if we disagree tonight, we will probably agree tomorrow.

Question put and agreed to.

New clause 48 accordingly read a Second time, and added to the Bill.

New Schedule 1

Schedule to be inserted as Schedule A3 to the Fire and Rescue Services Act 2004

“SCHEDULE A3

English Inspectors

Interpretation

1 (1) This paragraph applies for the purposes of this Schedule.

(2) References to an English inspector are to an inspector appointed under section 28(A1).

(3) References to the inspection function are to the function conferred on the English inspectors by section 28(A3).

(4) References to a person providing services to a fire and rescue authority are to a person providing services, in pursuance of contractual arrangements (but without being employed by a fire and rescue authority), to assist the fire and rescue authority in relation to the exercise of its functions.

(5) “Public authority” includes any person certain of whose functions are functions of a public nature.

Delegation

2 An English inspector may arrange for the inspection function to be exercised (to such extent as the inspector may determine) by another public authority on behalf of the inspector.

Working with Her Majesty’s Inspectors of Constabulary

3 An English inspector, when exercising the inspection function, must co-operate with Her Majesty’s Inspectors of Constabulary.

4 An English inspector may act jointly with Her Majesty’s Inspectors of Constabulary where it is appropriate to do so for the efficient and effective exercise of the inspection function.

Assistance for other public authorities

5 (1) The chief fire and rescue inspector for England may, if he or she thinks it appropriate to do so, provide assistance to any other public authority for the purpose of the exercise by that authority of its functions.

(2) The chief fire and rescue inspector for England may do anything he or she thinks appropriate to facilitate the carrying out of an inspection under section 10 of the Local Government Act 1999 (inspection of best value authorities).

(3) Anything done under this paragraph may be done on such terms (including terms as to payment) as the chief fire and rescue inspector for England thinks fit.

Powers of English inspectors to obtain information etc

6 (1) An English inspector may serve on a relevant person a notice requiring the person—

(a) to provide the inspector with any information or documents that the inspector reasonably requires for the purpose of the exercise of the inspection function;

(b) to produce or deliver up to the inspector any evidence or other things that the inspector reasonably requires for that purpose.

This is subject to sub-paragraphs (6) to (8).

(2) In sub-paragraph (1), “relevant person” means—

(a) a fire and rescue authority in England;

(b) an employee of a fire and rescue authority in England;

(c) a person providing services to a fire and rescue authority in England;

(d) an employee of a person providing services to a fire and rescue authority in England.

(3) A notice under this paragraph must—

(a) specify or describe the information, documents, evidence or other things that are required by the inspector;

(b) specify the period within which the information, documents, evidence or other things must be provided, produced or delivered up.

(4) A notice under this paragraph may specify the form and manner in which any information, documents, evidence or other things are to be provided, produced or delivered up.

(5) An English inspector may cancel a notice under this paragraph by written notice to the person on whom it was served.

(6) A notice under this paragraph must not be used to obtain information, or any document or other thing, from a person if—

(a) the information, or the document or other thing, was obtained by that person (directly or indirectly) from a body or other entity mentioned in sub-paragraph (7), or

(b) the information, or the document or other thing, relates to a body or other entity mentioned in that sub-paragraph.

(7) The bodies and other entities referred to in sub-paragraph (6) are—

(a) the Security Service,

(b) the Secret Intelligence Service,

(c) the Government Communications Headquarters, or

(d) any part of Her Majesty’s forces, or of the Ministry of Defence, which engages in intelligence activities.

(8) A notice under this paragraph must not require a person—

(a) to provide information that might incriminate the person;

(b) to provide an item subject to legal privilege within the meaning of the Police and Criminal Evidence Act 1984 (see section 10 of that Act).

(9) In this paragraph—

“document” means anything in which information of any description is recorded;

“English inspector” includes—

(a) a person appointed under section 28(A5) as an assistant inspector or other officer;

(b) a person authorised by an English inspector to act on behalf of the inspector for the purposes of this paragraph.

Powers of English inspectors to obtain access to premises

7 (1) An English inspector may serve on a person a notice requiring the person to allow the inspector access, which the inspector reasonably requires for the purpose of the exercise of the inspection function, to—

(a) premises that are occupied for the purposes of —

(i) a fire and rescue authority in England,

(ii) a person providing services to a fire and rescue authority in England, and

(b) documents and other things on those premises.

(2) A notice under this paragraph must—

(a) specify or describe the premises to which the inspector requires access;

(b) specify the time when access is required (which may be immediately after the service of the notice).

(3) Where there are reasonable grounds for not allowing the inspector to have access to the premises at the time specified under sub-paragraph (2)(b), the requirement under this paragraph has effect as a requirement to secure that access is allowed to the inspector at the earliest practicable time specified by the inspector after there cease to be such grounds.

(4) An English inspector may cancel a notice under this paragraph by written notice to the person on whom it was served.

(5) In this paragraph “document” and “English inspector” have the same meanings as in paragraph 6 (and, for that purpose, the reference in paragraph (b) of the definition of “English inspector” in paragraph 6(9) to paragraph 6 is to be read as a reference to this paragraph).

Failure to comply with notice under paragraph 6 or 7

8 (1) If a person who has received a notice under paragraph 6 or 7—

(a) fails or refuses without reasonable excuse to do what is required by the notice, or

(b) (in the case of a notice under paragraph 6) knowingly or recklessly provides information in response to the notice that is false in a material respect,

the chief fire and rescue inspector for England may certify in writing to the High Court that the person has failed to comply with the notice.

(2) The High Court may then inquire into the matter and, after hearing any witness who may be produced against or on behalf of the person, and after hearing any statement offered in defence, deal with the person as if the person had committed a contempt of court.

Sensitive information: restriction on further disclosure

9 (1) Where an English inspector, in exercise of the inspection function, receives information within sub-paragraph (2), the inspector must not disclose the information, or the fact that it has been received, unless the relevant authority consents to the disclosure.

(2) The information is—

(a) intelligence service information;

(b) information obtained from a government department which, at the time it is provided to the inspector, is identified by the department as information the disclosure of which may, in the opinion of the relevant authority—

(i) cause damage to national security, international relations or the economic interests of the United Kingdom or any part of the United Kingdom, or

(ii) jeopardise the safety of any person.

(3) Where an English inspector discloses to another person information within sub-paragraph (2) that the inspector received in exercise of the inspection function, or the fact that the inspector has received such information in exercise of the inspection function, the other person must not disclose that information or that fact unless the relevant authority consents to the disclosure.

(4) A prohibition on disclosure in sub-paragraph (1) or (3) does not apply to disclosure by one English inspector to another.

(5) In this paragraph—

“English inspector” includes—

(a) a person appointed under section 28(A5) as an assistant inspector or other officer;

(b) a person authorised by an English inspector to act on behalf of the inspector for the purposes of paragraph 6 or 7;

“government department” means a department of Her Majesty’s Government but does not include—

(a) the Security Service,

(b) the Secret Intelligence Service, or

(c) the Government Communications Headquarters (“GCHQ”);

“intelligence service information” means information that was obtained (directly or indirectly) from or that relates to—

(a) the Security Service,

(b) the Secret Intelligence Service,

(c) GCHQ, or

(d) any part of Her Majesty’s forces, or of the Ministry of Defence, which engages in intelligence activities;

“Minister of the Crown” includes the Treasury;

“relevant authority” means—

(a) in the case of intelligence service information obtained (directly or indirectly) from or relating to the Security Service, the Director-General of the Security Service;

(b) in the case of intelligence service information obtained (directly or indirectly) from or relating to the Secret Intelligence Service, the Chief of the Secret Intelligence Service;

(c) in the case of intelligence service information obtained (directly or indirectly) from or relating to GCHQ, the Director of GCHQ;

(d) in the case of intelligence service information obtained (directly or indirectly) from or relating to Her Majesty’s forces or the Ministry of Defence, the Secretary of State;

(e) in the case of information within sub-paragraph (2)(b)—

(i) the Secretary of State, or

(ii) the Minister of the Crown in charge of the government department from which the information was obtained (if that Minister is not a Secretary of State).

Provision of intelligence service information to English inspectors

10 (1) A person who provides information that is intelligence service information to an English inspector exercising the inspection function must—

(a) make the inspector aware that the information is intelligence service information, and

(b) provide the inspector with such additional information as will enable the inspector to identify the relevant authority in relation to the information.

(2) In this paragraph, “English inspector”, “intelligence service information” and “relevant authority” have the same meaning as in paragraph 9.””—(Mike Penning.)

Like the provision made by amendment NC48, this new Schedule is about the inspection of fire and rescue authorities in England. It makes provision in relation to English inspectors about delegation, joint working with her Majesty’s Inspectors of Constabulary and the giving of assistance to public authorities. It also confers power on English inspectors to obtain information from fire and rescue authorities (and their employees) and from persons providing services to fire and rescue authorities (and their employees) and to obtain access to premises occupied for the purposes of fire and rescue authorities and persons providing services to them.

Brought up, read the First and Second time, and added to the Bill.

New Clause 30

Public records

“(1) In Schedule 1 to the Public Records Act 1958 (definition of public records), in Part 2 of the Table at the end of paragraph 3, insert at the appropriate place—

“Office for Police Conduct.”

(2) The records that become public records for the purposes of that Act as a result of the amendment made by subsection (1) include all records of the Office for Police Conduct of the kind mentioned in paragraph 3(1) of Schedule 1 to that Act (whether created before or after the coming into force of this section, and whether created under that name or under the name of the Independent Police Complaints Commission).

(3) If the amendment made by subsection (1) comes into force before subsection (1) of section 31 comes into force, the reference in that amendment to the Office for Police Conduct is, until subsection (1) of that section comes into force, to be read as a reference to the Independent Police Complaints Commission.”—(Mike Penning.)

This new clause provides for the records of the Office for Police Conduct to become public records for the purposes of the Public Records Act 1958.

Brought up, read the First and Second time, and added to the Bill.

New Clause 63

Police and Crime Commissioners: parity of funding between police and families at inquests

“(1) A police and crime commissioner has the duties set out in this section when the police force they are responsible for is a Properly Interested Person for the purposes of—

(a) an inquest into the death of a member of an individual’s family, or

(b) an inquest into the deaths of members of a group of families,

under the Coroners Act 1988.

(2) The police and crime commissioner must make recommendations to the Secretary of State as to whether the individual’s family or the group of families at the inquest require financial support to ensure parity of legal representation between parties to the inquest.

(3) If a police and crime commissioner makes a recommendation under subsection (2) then the Secretary of State must provide financial assistance to the individual’s family or the group of families to ensure parity of funding between families and the police.

(4) The individual’s family or the group of families may use funding authorised under this section solely for the purpose of funding legal representation at the inquest.”—(Andy Burnham.)

This new clause would put into law the principle of parity of funding between police and families at inquests. It would ensure that funding to a bereaved family, or a group of bereaved families, for purposes of legal representation during an inquest is an amount broadly equal to the level of funding that the police force receives. This new clause seeks to place an obligation on the PCC to recommend to the Home Secretary as to whether a bereaved family, or a group of bereaved families requires funding to support their legal representation at the inquest. The Home Secretary must provide such funding if it is recommended.

Brought up, and read the First time.

Question put, That the clause be read a Second time.