Policing and Crime Bill

Lord Kennedy of Southwark Excerpts

Committee: 2nd sitting (Hansard - part one): House of Lords
Wednesday 26th October 2016 Lords Chamber

[Lord Paddick]

My Lords, in moving Amendment 128 in my name and that of my noble friend Lady Hamwee I will speak also to the other amendments in the group—Amendments 129 and 130. These are probing amendments that relate to which bodies can be designated as being eligible to bring super-complaints against the police.

Bodies are to be designated by the Secretary of State through regulations. Clause 25 inserts a new Section 29B into Part 2A of the Police Reform Act 2002. Subsection (5) of new Section 29B states:

“The Secretary of State must, before making regulations under subsection (3) or (4), consult such persons as the Secretary of State considers appropriate”.

However, it does not require the Secretary of State to consult on subsection (1). Adding in reference to subsection (1) means that the Secretary of State would have to consult before making the regulations that designate which bodies should be capable of bringing super-complaints. Those regulations presumably will set out the criteria referred to in subsections (3) and (4). That means that there will be consultation on those as well.

Amendment 129 lists the three bodies—the Law Society of England and Wales, the National Council of Voluntary Organisations, and Citizens Advice—that, along with others as specified by the Secretary of State, would be made “authorised” persons for the purposes of subsection (2)(d). That gives them a role in designation, as they are likely to know the territory and issues involved, know their members and know which the good non-governmental organisations are, and so on.

Amendment 130 is intended to ensure that the first regulations made under subsections (1), (3) and (4) of new Section 29B are subject to the affirmative resolution process. I beg to move.

[Lord Kennedy of Southwark (Lab)]

My Lords, this section of the Bill gives the power to designated bodies to make super-complaints to Her Majesty’s Chief Inspector of Constabulary. The complaints can be made where, in the opinion of those bodies, a feature of policing is harming the public and needs to be looked at.

The noble Lord, Lord Paddick, listed three organisations to make these super-complaints to be put on the face of the Bill. I have some sympathy with the amendments that have been put forward, but I understand that they are probing amendments. I hope that when the noble Baroness replies she can give us some indication of the organisations likely to be designated to make these complaints under the regulations. It is important that, when creating these new powers, we have some idea of what the organisations are likely to be. Are those listed in the amendment likely candidates to be designated when this comes into force, or are there others?

[Baroness Chisholm of Owlpen]

I am grateful to the noble Lords, Lord Paddick and Lord Kennedy, for the opportunity to debate the provisions in the Bill that will create a new system of policing super-complaints.

There are currently three extant super-complaints systems, having been originally created in the Enterprise Act 2002. These systems exist in the commercial sector, the financial system and in payments regulation. All relate to systemic issues affecting consumers relating to private sector organisations. The police super-complaints system, although based on the success of these antecedents, will be the first such system to address issues in the public sector.

A super-complaint is defined in Clause 24 as a complaint that,

“a feature, or combination of features, of policing … by one or more than one … force is, or appears to be, significantly harming the interests of the public”.

Only bodies designated for the purpose of these provisions will be able to make a super-complaint, but any body can be designated if it meets the relevant criteria. Those criteria for designation will, following consultation, be laid out in regulations. The system will be “owned” by the HM Chief Inspector of Constabulary, so as to be sufficiently independent of government. Ultimately, this system will allow charities and advocacy groups to raise systemic issues they identify in policing in a more effective way, leading to the improvement of policing in England and Wales.

I turn now to the noble Lord’s amendments which focus on the regulations relating to designated bodies and the designation process contained in Clause 25. The designated bodies able to make a super-complaint will be set out in regulations. Amendment 128 would require the Government to consult on such regulations. We have provided in Clause 25 for consultation on the regulations setting out the criteria for designation, but we do not believe that it is appropriate to consult each and every time a new body is given designation status. Any body that is so designated will have been assessed as meeting the criteria for designation. The Government believe that the criteria are the key to getting the right bodies involved in the system. This is why it is the criteria rather than the bodies themselves that will be subject to consultation. Following consultation on the criteria, further consultation on the resulting list of designated bodies would be unnecessary and, if conducted every time a body is designated, would be burdensome.

On Amendment 129, the Government agree that the nature of the bodies involved in the super-complaints system is key to its success. That is why we shall be consulting widely on the criteria for designation. Furthermore, the Government intend to include a requirement in the criteria for designated bodies to act as umbrella bodies for smaller organisations. This will ensure that any bodies that notice a systemic issue with policing, but are not designated, are still able to raise an issue through another organisation.

We have engaged with a number of key bodies, including Citizens Advice, in the development of this policy. We will continue to work with these bodies throughout its implementation to ensure that the system works in the public interest. It will of course be open to Citizens Advice, the Law Society and the National Council for Voluntary Organisations to apply for designated body status, but that decision is a matter for them. The Government would welcome the input of your Lordships on any particular bodies or organisations that may work towards the improvement of policing through becoming designated bodies.

Amendment 130 would require the first regulations made in relation to designation to be subject to the affirmative procedure. The Government set out the rationale for applying the negative procedure to these regulations in their delegated powers memorandum. That memorandum has been considered by the Delegated Powers Committee which did not take issue with the application of the negative procedure whether on the first or subsequent exercise of these powers. The negative procedure is consistent with the legislative framework applicable to existing super-complaints systems and I see no good case for departing from it here.

Having given these provisions in the Bill the airing they deserve, I hope that the noble Lord will be content to withdraw his amendment.

[Lord Kennedy of Southwark]

The noble Baroness has talked about consultation on the regulations. Is there a timescale for when that will take place because obviously the Government will complete their consultation and make a decision before the regulations come into force? Can she give us some idea of when it will be?

[Baroness Chisholm of Owlpen]

If there is a timescale that we know of, I will write to the noble Lord, but I do not have it here in my notes.

[Baroness Chisholm of Owlpen]

We do not know how many super-complaints will be made because it is difficult to judge that. The point about the super-complaints is that they will make an enormous difference to the way things are done. It was interesting to note that in March this year the then shadow Home Secretary, Andy Burnham, held a seminar with the noble Baroness, Lady Lawrence, which brought together groups that are still campaigning for justice, such as the Shrewsbury 24 campaign, the Orgreave Truth and Justice Campaign, and Justice 4 Daniel. A common thread runs through all of these groups but the way the system works at the moment forces them all to plough their own furrow; it does not allow them to join forces. The super-complaint proposal will rebalance the system in their favour and mean that they can join together.

[Lord Kennedy of Southwark]

My Lords, perhaps I may pursue the point about the regulations one more time. The noble Baroness has said that there is no timescale but that she will write to me if she can find out if there is. I should say to her that this issue is very important to the campaigns she has just listed. If this legislation gets on to the statute book without us knowing where we are with the regulations, of course it cannot come into force. I hope that she will take back to the department and her ministerial colleagues that the consultation should be done with the utmost urgency. There is no point in passing the legislation if people cannot actually make their complaints.

[Baroness Chisholm of Owlpen]

I do not have a timescale. I do not want to give the noble Lord false information, so it is only fair that I write to him.

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[Lord Paddick (LD)]

My Lords, I support the amendment in the name of the noble Lord, Lord Rosser. The second stage of Leveson is a very important stage of the investigation into the conduct of the police and the media. It is essential that it is carried out as soon as possible, bearing in mind that there may be outstanding criminal cases that need to be dealt with first.

It is understandable that a slightly one-sided picture has been given of the relationship between police and press. There are many entirely appropriate relationships between the media and press which are beneficial to the public interest. For example, appeals for witnesses to a serious crime can receive the wide publicity sometimes required only with the co-operation of the media and local press. There are searches for missing persons, where an appeal needs to be made nationally to try to identify where a vulnerable person might be. Clearly, there are examples of the opposite. Hillsborough is one. Another rather common example is where, sadly, the police brief the media casting doubt on the character of those who died at the hands of the police.

I am not saying that it is entirely a positive relationship but it is necessary for the police to have a relationship with the media. It is important to differentiate between positive and appropriate relationships and negative and entirely inappropriate ones, particularly, as happened with the phone hacking case, where there was at least the opportunity for critics of the police to suggest that their lack of enthusiasm initially to investigate phone hacking by the media might have had something to do with that too-close relationship. For those reasons, I support the amendment.

[Lord Kennedy of Southwark]

My Lords, I, too, support the amendment moved by my noble friend Lord Rosser. I agree with the comments of the noble Lord, Lord Pannick. I very much support the police. They do a fantastic job for us and put their lives on the line every day to keep us safe.

The noble Lord is right when he talks about the need for an appropriate relationship between the media and the police, and how important that is. Equally, as my noble friend Lord Rosser said, there are obviously times when things go wrong. Clearly what happened at Hillsborough was an absolute tragedy. Can you imagine losing a loved one on that day and then having to endure the abuse in the media which has clearly now been shown not to be true? We should pay tribute to the steely determination of the Hillsborough families to get justice for their loved ones. They not only lost them but saw their names dragged through the mud.

It is important that we get to the point where the Government can clarify that they will proceed with the second stage of Leveson. There are some nuances between the statement we had from the previous Prime Minister and what we had from this Dispatch Box more recently. That difference might just be a few words which mean nothing at all, but we need to be clear that this should go ahead and that the Government are determined that any prosecution dealing with this will proceed.

[Baroness Williams of Trafford]

My Lords, I thank all noble Lords who contributed to this debate. I join the noble Lord, Lord Kennedy, in paying tribute to the victims of the Hillsborough disaster, which took place not far from where I live.

As the noble Lord, Lord Rosser, explained, this amendment would require the Prime Minister to establish what is colloquially referred to as the Leveson 2 inquiry into the relationships between the police and the media. It is worth noting that the drafting of this amendment goes beyond the terms of reference of the Leveson inquiry. Part 1 examined the culture, practices and ethics of the media; if it goes ahead, Part 2 is to examine wrongdoing in the press and the police, including the failure of the first police investigations into phone hacking and the implications for police and press relations.

This amendment would, for example, extend the remit of Leveson 2 to cover how the police investigated any complaints about their dealings with people connected to the media, and to the conduct of the CPS where complaints led to criminal investigations. This is well outside the scope of the current inquiry terms of Leveson 2. The Government are of the view that it is not necessary to legislate to require Leveson 2 as it is already set up under the Inquiries Act 2005. As the noble Lord will be aware, there are still ongoing criminal cases relevant to the subject matter of the Leveson inquiry. I welcome the fact that subsection (3) of the proposed new clause recognises the importance of not prejudicing those outstanding criminal proceedings. We have always been clear that these cases, including any appeals, must conclude before we consider part 2 of the inquiry. Given this, and the fact that we already have an appropriate legal framework in the Inquiries Act, it is not an appropriate matter for further legislation. There is an established process in place for taking this matter forward. On that basis, I hope the noble Lord will withdraw his amendment.

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[Lord Paddick]

My Lords, in moving Amendment 132 I will speak also to our Amendments 135, 136 and 137 in this group and in support of Amendments 133 and 134, in the name of the noble Lord, Lord Rosser.

Clause 27 relates to investigations by the IPCC of concerns raised by whistleblowers and inserts a new Part 2B into the Police Reform Act 2002. If we were asking for this clause to not stand part of the Bill, it would be a case of 2B or not 2B—but that is not what we are asking for. I am just checking to see whether noble Lords are awake. New Section 29D of the 2002 Act defines a whistleblower as a person who,

“raises a concern … about a police force or a person serving with the police”,

and who is,

“under the direction and control of a chief officer of police”,

at the time. However, it does not cover cases where the whistleblower is currently under the direction and control of a chief officer. One potential scenario is where the whistleblower is a witness to an incident that happened before he or she joined the police service, and wishes to draw the matter to the attention of the IPCC. Our Amendment 132 would legislate for that scenario.

I move on to Amendments 135, 136 and 137. New Section 29I of the 2002 Act allows the Secretary of State, by regulations, to set out the circumstances where the identity of the whistleblower may have to be disclosed. This may be done only for permitted disclosure purposes, one of which is,

“the institution or conduct of criminal proceedings”.

Our concern is that a whistleblower may not realise that his or her identity may be revealed if the investigation turns into a criminal one, and that the whistleblower should be informed at the outset that this might be the case, so that they can withdraw the concern if they are worried by that prospect. Amendment 135 addresses that issue.

New Section 29E of the 2002 Act sets out the actions of the IPCC if it chooses not to investigate, including making recommendations in the light of the concern. Subsections (4) and (5) allow the Secretary of State to make regulations in relation to such a scenario, including, in (5)(a), to,

“describe the kinds of recommendations that the Commission may make”.

Our Amendment 136 is aimed at ensuring that the IPCC is not restricted as to what recommendations it can make by adding that the Secretary of State,

“may not specify an exclusive list of recommendations”.

In new Section 29L of the 2002 Act, the Secretary of State is required to consult various bodies before making regulations about whistleblowers. We believe that organisations representing police officers and staff should be included in the list of groups who must be consulted. Our Amendment 137 makes this change. We also support, as I mentioned, Amendments 133 and 134, in the name of the noble Lord, Lord Rosser. I beg to move Amendment 132.

[Lord Kennedy of Southwark]

My Lords, this section of the Bill deals with whistleblowing and investigations by the IPCC. It provides a new power for the IPCC to investigate matters raised by a police whistleblower without the matter having to be raised with the police force concerned, and provides further powers to protect the identity of the individual or individuals concerned. All the amendments in this group are in the names of the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee, with the exception of Amendments 133 and 134 in the name of my noble friend Lord Rosser.

Amendment 132 seeks to provide as much clarity as possible and allows for the eventuality that the person making a complaint could still be under the direction and control of a chief officer of police. This amendment raises an interesting point, which was highlighted by the noble Lord, Lord Paddick, when he presented his scenario to the House a few moments ago. I hope that when the Government respond they will be as clear possible in their reasoning if they do not think the amendment is necessary.

The amendments in the name of my noble friend seek to add clarity to this section of the Bill by making clear that these provisions cannot be used if the matter is subject to an ongoing investigation. Amendment 134 would allow for whistleblowing protections to be applied to police witnesses. These are good amendments that would strengthen what is proposed by the Government.

When reading and thinking about Amendment 135, I was not completely convinced that it was either necessary or should in fact be there. Having said that, I listened to the points made by the noble Lord, Lord Paddick, and I think that he persuaded me on those.

I am not sure what Amendment 136 adds to the Bill as it would not put in the Bill an exclusive or exhaustive list. Amendment 137 is completely correct: organisations representing police officers and staff must be consulted before regulations are made concerning this section of the Bill. It is not good enough to rely on the subsection that talks about other organisations that are deemed appropriate. Those organisations deserve to be in the Bill when it leaves this House.

[Baroness Chisholm of Owlpen]

I am grateful to the noble Lords, Lord Paddick and Lord Kennedy, for the opportunity to debate the provisions in the Bill that will strengthen protections for police whistleblowers. The Government are committed to ensuring that those working for the police have the confidence to come forward to report concerns of malpractice and misconduct within the service.

Forces should, and do, provide channels for staff to raise such issues in confidence. However, Her Majesty’s Inspectorate of Constabulary has found that the quality of reporting arrangements and support offered to whistleblowers varied considerably by force, and a key concern was a lack of trust in confidential reporting. That is why, through Clause 27 and Schedule 6, we are creating a specific power for the Independent Police Complaints Commission to investigate whistleblowing allegations. If the IPCC decides to investigate, it does not have to refer the matter to the force unless the concern is about a conduct-related matter for the purposes of Part 2 of the Police Reform Act 2002. Even if it decides not to investigate, it will have to take all reasonable steps to ensure that the whistleblower’s identity is protected. These changes will give officers and staff much greater assurance that their concerns will be considered objectively and discreetly.

I have listened with interest to the points raised by the noble Lords, Lord Paddick and Lord Kennedy, and on two points I have some sympathy—I see that I have surprised the noble Lord, Lord Kennedy. The first is dealt with in Amendment 132, which seeks to modify the definition of a whistleblower to include those raising a concern about matters that occurred within a police force prior to them joining the police. The legislation as currently drafted allows for existing and former members of a police force to raise concerns about matters that occurred while they were serving. It is evident that some cases of police misconduct and malpractice can go unreported for some time, and it may be appropriate that there be some scope for this to be brought to light, as prescribed under new Part 2B, by a whistleblower who had joined the force at a later stage.

Amendment 133, tabled by the noble Lord, Lord Rosser, and spoken to by the noble Lord, Lord Kennedy, addresses the concern that there is a risk under the new provisions that a police officer or staff member interviewed as a witness in connection with a Part 2 investigation by the commission could be deemed a whistleblower, and that this could lead to confusion and complexity. Amendment 133 would prevent the IPCC having to start a new investigation where one is already under way in relation to the concern that has been raised. I am sympathetic to that point.

However, it is not the intention of the legislation to capture those providing factual information in an existing investigation. Rather, the aim of the legislation is to encourage whistleblowers to come forward and capture those concerns that are not being investigated but, in the public interest, should be considered independently by the IPCC and subject to its recommendations.

For this reason, I have less sympathy with Amendment 134, which would allow the IPCC discretion to confer whistleblowing status on any individuals providing evidence in existing investigations. We do not wish to create an expectation among police witnesses that the IPCC could offer them protections in return for giving their evidence. I understand that the IPCC has concerns about the protections available for those who provide it with evidence, but this is a much broader issue which needs be considered in the longer term, beyond the narrow confines of the whistleblowing provisions and in consultation with all relevant policing stakeholders.

Amendment 135 would impose an express duty on the IPCC to inform a whistleblower that his or her identity may be disclosed in the course of any criminal proceedings and to give the whistleblower an opportunity to withdraw the concern. The legislation is quite clear on the protection of anonymity and the circumstances in which a whistleblower’s anonymity might cease to be protected. As well as criminal proceedings, such circumstances could, for example, include the interests of national security and allegations of misconduct against the whistleblower him or herself. It is not practicable for the primary legislation to include every possible prescription. We would expect the IPCC to do its best to ensure that police officers were aware of the limitations of anonymity before they raise their concern, as I do not believe that it would be practical or desirable to provide for a concern to be withdrawn or unsaid by a whistleblower.

Guidance will support the new provisions, including an update of the College of Policing’s Reporting Concerns guidance, to promote awareness and understanding of these important reforms for whistleblowers. The protections offered by the new process that the Government are providing for whistleblowers can only go so far, and certainly not at the expense of allowing criminals to escape justice.

Amendment 136 would restrict the power of the Secretary of State to stipulate the matters on which the IPCC can make recommendations to a police force in cases where it has decided not to investigate a whistleblower’s concerns. I reassure the noble Lord, Lord Paddick, that the intention is not to provide the Secretary of State with the power to prescribe an exclusive list but merely to describe the kinds of recommendations that the IPCC may make. The purpose of the provision is to assist the IPCC in those cases where it decides, with the whistleblower’s consent, to refer the matter to the appropriate authority.

Finally, in response to Amendment 137, the Bill already requires the Secretary of State to consult on the whistleblowing regulations with police staff associations as members of the Police Advisory Board for England and Wales. This matter was discussed in the House of Commons and subsection (5) of new Section 29M to the Police Reform Act 2002 was inserted on Report there to provide for this requirement.

On the understanding that I will consider further, in advance of Report, Amendments 132 and 133, I ask the noble Lord, Lord Paddick, to withdraw his amendment.

[Lord Kennedy of Southwark]

I was pleased that the Minister was sympathetic to the point I made on Amendment 133; that is certainly progress. My noble friend raised an important point. We do not want it not to be addressed in legislation on the suggestion that it will come back as guidance, and then we have as an unintended consequence when the guidance is not strong enough that someone makes a complaint and what we thought could not happen does. We need to reflect on that, and perhaps the Government could come back on Report, because I think my noble friend has identified an important issue: we would not want a conflict there to cause problems in future.

[Baroness Chisholm of Owlpen]

We will reflect.

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[Lord Paddick]

My Lords, we broadly welcome the government amendments in this group and, subject to what the noble Lord, Lord Kennedy of Southwark, has to say on the Labour amendments, they seem to cover similar ground.

I have some questions, but I agree with the Minister that the overwhelming majority of police officers are honest, decent people who want only to do their best to protect and serve the public. However, if an officer has left the service and, within 12 months, an investigation takes place which, if the officer was still serving, could have resulted in that officer being sacked, what sanctions would be available against such an officer, other than their name being added to the banned list?

I understand that “exceptional circumstances”, in terms of the most serious acts of wrongdoing, needs to be defined by an independent body. We will come later on in our considerations to talk about the Independent Police Complaints Commission and whether it is truly independent. It is slightly concerning that one criterion that the IPCC would have to look at, in deciding what action to take, is the impact on public trust and confidence in the police, because it could take the decision that the impact of exposing serious misconduct through an investigation would have such a detrimental impact on that trust and confidence that it would use it as a reason not to investigate rather than an obligation to do so. So we have to be very careful about the grounds on which the IPCC should or should not consider something to be exceptional wrongdoing.

Clearly, many members of the public will be very concerned, or disappointed, that the legislation will not be retrospective, particularly with regard to those involved in the aftermath of the Hillsborough disaster. The concern is not with the rank and file officers in that case; the concern is with what happened in the aftermath, and the leadership exercised at Hillsborough. However, as I say, we are generally supportive of the government amendments.

[Lord Kennedy of Southwark]

My Lords, first, I associate myself with the comments made by the Minister and by the noble Lord, Lord Paddick, in paying tribute to the police and how they conduct themselves. They are a fantastic group of people, who protect us every day, and we are very lucky to have them looking after us.

As we have heard, this section of the Bill concerns disciplinary proceedings against former police officers and former special constables, and the amendments in this group are to both the relevant clauses and schedules. Generally, I am content with the government amendments, and supportive of them. My noble friend Lord Rosser tabled Amendments 142 and 143 before the Government tabled their amendments, and we are very happy with what the Government have proposed.

I accept entirely the point that the noble Lord, Lord Paddick, made about “exceptional circumstances” being defined by an appropriate body. Could the Minister give us some idea what the Government’s thinking is on that matter? Having said that, I support the government amendments.

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Moved by

[Lord Kennedy of Southwark]

167: Clause 37, page 63, leave out lines 8 to 25

[Lord Kennedy of Southwark]

My Lords, I will not detain the House very long with this amendment. Amendment 167A, in the name of my noble friend Lord Rosser, is a probing amendment. We tabled it to get on the record the thinking of the Government in this respect, and to raise our concerns. From these Benches, we are more content with the idea of employed staff being designated to use the weapons as outlined in new subsection (9B), but we have some reservations about the authorisation of volunteers to use them. I think the public would have some concerns about arming volunteers with CS and PAVA sprays. It may be seen as a step too far.

It would be useful if, when the noble Baroness responds to the debate, she could tell the House how many PCSO posts have been lost in the last six years. It appears on looking at this that it could be regarded as policing on the cheap: reduce the number of PCSOs in full-time employment and then get these volunteers and arm them with these weapons. Those are our concerns.

There is also a Clause 38 stand part debate in this group. We tabled that for the same reason: to get on record the Government’s thinking here and to outline our concerns at this stage. I beg to move.

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[Baroness Williams of Trafford]

My Lords, I am talking about the powers that volunteers may have in the round. There may be myriad different powers, not just the one that we are focusing on.

The noble Lord, Lord Kennedy, talked about policing on the cheap. I remember that when PCSOs were introduced, I said, “Oh, it’s only policing on the cheap”, but actually I have seen the really good benefit that they have brought. As my noble friend Lady Redfern says, they are not a replacement for the police force but a really valuable extra on the streets of Lincolnshire, providing crime fighting for the police.

On that very lengthy note, and thanking all noble Lords for their interventions, I wonder if the noble Lord, Lord Kennedy, would like to withdraw his amendment.

[Lord Kennedy of Southwark]

My Lords, this has been an interesting debate—quite an extraordinary debate really, has it not? We talked about helpful PCSOs and the work they do helping communities; we got on to CS spray and other sprays. They may be issued with guns—we are not quite sure. We were then told that the Government also want to take a power in case things are invented in future. I am pleased I tabled the amendment: it has certainly dragged a few things out from the Government for us. I think we will have to come back to these issues on Report. I hope that the Government will look at our debate, because there are one or two loose ends hanging there.

The most important contribution came from the noble Lords, Lord Paddick and Lord Condon. Both of them have been very senior police officers, and if they are expressing concerns, the House should listen very carefully. It is important when we grant any new powers that we make sure that people are trained properly to use them. As we heard, these sprays can kill people, which is really serious. We must worry about putting anything in someone’s hands that can do that.

I also want to pay tribute to volunteer PCSOs, who do a fantastic job as the noble Baroness, Lady Redfern, outlined. I will leave it there, but I am sure we will come back to these issues on Report. I beg leave to withdraw the amendment.

Amendment 167 withdrawn.