Policing and Crime Bill
Lord Paddick ExcerptsWednesday 26th October 2016
(7 years, 11 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 55-II(b) Amendments for Committee, supplementary to the second marshalled list (PDF, 62KB) - (26 Oct 2016)
Lord Rosser (Lab)
My Lords, the amendment requires the Secretary of State to make a statutory provision for the fire and rescue services in England to lead and co-ordinate the emergency service response to serious flooding.
Part 2 of the Fire and Rescue Services Act 2004 sets out the statutory core functions of fire and rescue authorities: fire safety, firefighting, and rescuing people and protecting them from harm in the event of road traffic accidents. The 2004 Act also gives the Secretary of State the power to give fire and rescue authorities functions relating to other emergencies, including outside the fire and rescue authority’s area. This is an order-making power and does not require primary legislation.
There is thus no statutory duty on the fire and rescue services for emergencies arising from flooding, yet flooding is on the increase. Government figures show that in 2007 there were 14,000 flooding calls; in 2011-12 there were 16,000; and in 2013-14 there were 18,000. I also sense that the extent of flooding is becoming more serious. The Greater Manchester Fire and Rescue Service said that on Boxing Day last year it deployed two-thirds of its available resources on flood response. The 2008 Pitt review into the 2007 floods said that a statutory duty would be beneficial and recommended that the Government should urgently put in place a fully funded national capability for flood rescue, with fire and rescue authorities playing a leading role underpinned as necessary by a statutory duty.
The case for a statutory duty on the fire and rescue services is now stronger than it was in 2008, with more and more flood calls but fewer staff, less equipment and fewer fire stations. In parts of the United Kingdom there is already a statutory duty on flooding, namely in Scotland since April 2013 and Northern Ireland since January 2012. A statutory duty would assist in adding to the resilience of fire and rescue services when faced with flooding, assist with strategic planning between fire and rescue services and local resilience forums, and underscore the need to resource fire and rescue services specifically for flooding.
The Government’s approach to date appears to be that there is no need for a statutory duty because the fire and rescue services will turn up as necessary anyway even though it is not a statutory core function. On the basis of that argument one might as well remove all the existing statutory core functions of the fire and rescue services on the basis that they will turn up anyway. The reality is that additions are made to statutory functions to reflect changing circumstances.
The fire service has been rescuing people from road traffic crashes for decades, but it was felt that a statutory duty was needed and the Fire and Rescue Services Act 2004 addressed that. The fire service had been providing fire protection for centuries, but a statutory duty was introduced in 1947. Now is surely the time to introduce a statutory duty on flooding to reflect and recognise the vastly increased role of the fire and rescue services in this area of emergency provision. The Government talk about the need to reform our emergency services and bring them up to date. Perhaps the Government need to do the same for the statutory functions of the fire and rescue services. I beg to move.
Lord Paddick (LD)
My Lords, while I agree with the noble Lord, Lord Rosser, on a statutory core function or a statutory duty on flooding for the fire and rescue service, we are a little concerned about the wording of his amendment which reads:
“The Secretary of State shall make provision for the fire and rescue services in England to lead and co-ordinate the emergency service response”.
It is accepted practice among all the emergency services that the police co-ordinate during the emergency phase of any emergency, whether flooding or anything else, partly because there is a duty on the police to investigate. For example, one can imagine a scenario where flooding is caused by a criminal act. It is generally accepted practice and has been for many years that the police service should lead and co-ordinate in every emergency situation. That is slightly different from what the noble Lord, Lord Rosser, is saying in terms of the fire and rescue services having a statutory core function or duty but we do not believe that that should be to lead and co-ordinate in the case of flooding.
Lord Paddick
Lord Paddick
My Lords, if I say this at the beginning of the afternoon, I hope I will not have to repeat it, but I declare an interest as having been a member of the police service for 30 years. In moving Amendment 124, I will also speak to the other amendment in this group, Amendment 127.
Clause 12 allows a police and crime commissioner—or the Mayor’s Office for Policing And Crime in relation to the Metropolitan Police district, or the Common Council in relation to the City of London police area—to choose to take on direct responsibility for receiving and recording complaints against the police and keeping the complainant informed of progress.
The problem here is that this may further confuse the public about who they should complain to. People are already unsure whether they should complain to a local police station, to the IPCC or to a third party. This change will inevitably mean that in some parts of the country, the complaint needs to be made to the police and crime commissioner—the local policing authority, to use a generic term—who will then deal with the complaint and keep the complainant informed. In other cases, it will be the police service itself, depending on whether the local policing authority takes up the offer provided by the legislation to take on the handling of complaints.
The idea of giving local policing authorities responsibility for complaints against the police, as opposed to the chief officer, is a good one. It will introduce a further element of independence into the police complaints system, but allowing local policing authorities simply the option—and indeed allowing local policing authorities to be persuaded by their chief constable not to take responsibility away from her or him—appears to me to be a fudge. Indeed, the more a chief constable tries to persuade his or her PCC not to take away the responsibility, the more the PCC should resist such pressure, in my opinion. This amendment would require the local policing authority to take over these statutory responsibilities, to ensure independence and clarity for the public.
I turn to Amendment 127. Clause 22 inserts into Section 23 of the Police Reform Act 2002, titled “Regulations”, a new paragraph which gives local policing authorities the power,
“to delegate the exercise or performance of powers and duties conferred or imposed on them”,
in relation to the handling of complaints against police. In a subsequent subsection, which inserts new paragraphs into the Police Reform and Social Responsibility Act 2011, the expression used is to “arrange” for another person,
“to exercise a function that the police and crime commissioner has”.
Although the Explanatory Notes give reassurance that liability remains at the top, Amendment 127 is intended to probe why there is a difference in the wording between the two different subsections and to ensure that the delegation of powers and duties does not include delegation of responsibility. I beg to move Amendment 124.
Lord Bach (Lab)
My Lords, I declare my interest as a police and crime commissioner, for Leicester, Leicestershire and Rutland. I will say a few words about this very interesting amendment, moved by the noble Lord, Lord Paddick, neither to praise it nor to condemn it, but just to tell the Committee something that it is probably aware of anyway. I suspect I speak for other police and crime commissioners as well when I say that as we speak here, we are considering which way to go, given the possibilities that the Bill opens up for us in terms of complaints. It is very interesting that the noble Lord, Lord Paddick, suggests that we should not have that option but should be compelled, as it were, to take all complaints at a low level and consider them. I am not so sure he is right—I do not know. I think there may in the end be a tendency among a number of police and crime commissioners, once the Bill is an Act and this legislation is law, to not take full responsibility for all complaints. I am not quite sure what the Government would like in this case: it may be that they really do not have a preference, and it would be interesting to hear from the Minister whether they do or not.
I have to tell the noble Lord that the chief constable in my patch has done absolutely nothing up until now to try and persuade me not to take the full gamut, but it may be different elsewhere. It is an interesting debate and I look forward very much to hearing what the Minister has to say. I suspect, if the Bill remains as it does up until it becomes an Act, then police and crime commissioners around the country will be doing different things.
Baroness Williams of Trafford
My Lords, I will correct this if I am wrong. While I am not guessing, I am assuming that, particularly where you have the model with a mayoral PCC as well, the mayoral precept will enable some of those mayoral functions. On the additional resources, I would like to write to the noble Lord before Report as I would not want to say something to the Committee now that simply was not true.
Amendment 127 to Clause 22 relates to the ability of PCCs to delegate their complaints-related function. The amendment seeks to clarify the difference in language in the subsections of the clause, and I am happy to do that.
The reason for the difference in language between the subsections is that it aims to replicate the language already used in the corresponding Acts. Although subsection (1) uses different language to that in subsections (2) to (4), the policy intention and result is the same. Local policing authorities should and will be able to delegate their complaints-related functions. Regardless of whether any complaints-related functions have been delegated, the local policing body will retain ultimate responsibility for the complaints performance in its area. This follows the same model as chief constables delegating their complaints responsibilities to more junior ranks, where the chief constable is still ultimately responsible for the outcome.
I hope that those comments have reassured noble Lords and that the noble Lord will feel happy to withdraw his amendment.
Lord Paddick
I am grateful to the Minister for that explanation on Amendment 127, which is a probing amendment. I am not as enthusiastic about her response to Amendment 124, and I am grateful that we have the noble Lord, Lord Bach, here as a living, breathing police and crime commissioner who can bring his experience to this. I have to say that, bringing my experience as a police officer, I believe that there would be great benefit if there was one system that members of the public knew and could rely on. For example, it would be of great benefit to the public if the decision on whether complaints were investigated was taken out of the hands of the police.
The Minister said that the purpose of the new provision was to restore trust. If the purpose is to restore trust and a PCC decides not to take up the offer, what are the constituents in a PCC’s area to think about that? However, at this stage, I beg leave to withdraw the amendment.
Lord Paddick
Lord Paddick
My Lords, I fear it will be like this for the rest of the afternoon. Amendment 124A is in my name and that of my noble friend Lady Hamwee, and I shall speak to the other amendment in the group, Amendment 124B.
Clause 14 amends Part 2 of the Police Reform Act 2002 in relation to keeping complainants—people who have complained about the police—informed of the progress of the investigation of their complaint. Subsection (3) substitutes the matters contained within it for those matters that subsection (3) of the 2002 Act required the complainant to be kept informed about. Basically, subsection (3) sets out what the complainant needs to be kept abreast of. One of the matters in the 2002 Act was to keep the complainant informed of,
“any provisional findings of the person carrying out the investigation”.
This requirement is no longer listed in the new subsection (3), and the amendment is to probe why it is no longer a requirement. Amendment 124B relates to the substitution of subsection (9) in Section 21 of the 2002 Act made by Clause 14(7), which again omits “any provisional findings” from the requirements in the 2002 Act. I beg to move.
Lord Harris of Haringey (Lab)
My Lords, I understand absolutely the objective of the amendment moved by the noble Lord, Lord Paddick, and I have a lot of sympathy with what he is trying to get at. However, perhaps there is also need to look at the extent to which the public who have been victims of crime are also kept informed of the progress of investigations into those crimes. In exactly the same principles that the noble Lord, Lord Paddick, has outlined in terms of complaints against police officers, ought they perhaps also be applied to people who have been victims of crime?
Lord Paddick
My Lords, I am very grateful to noble Lords for their contribution to this short debate. I agree with the noble Lord, Lord Blair of Boughton. It could be that giving “provisional findings”, which are not the ultimate findings, could create a false sense of expectation in the complainant and so forth. However, the question was around not whether that should be there but the reason for it being there. As the noble Lord, Lord Blair, said, there may be a sensible reason for taking it out in the new legislation, but I failed to hear a sensible reason for why it was formerly in primary legislation but will no longer be. Perhaps between now and Report we may be able to unearth that reason. I beg leave to withdraw the amendment.
Lord Paddick
“(aa) the complainant (who must be questioned as to whether he wishes the complaint to be recorded) does not indicate a wish that it not be recorded, or”
Lord Paddick
My Lords, Amendment 125 is tabled in my name and that of my noble friend Lady Hamwee. I shall speak also to Amendment 126. In Schedule 5, Part 1 of Schedule 3 to the Police Reform Act 2000 is amended after sub–paragraph (6) by inserting a new sub-paragraph (6A) in relation to when a complaint against police must be recorded. It states that a complaint must be recorded if,
“at any time the complainant indicates a wish for the complaint to be recorded”.
Our amendment adds a requirement that the complainant must be asked whether he wishes the complaint to be recorded and states that unless he positively indicates that he does not wish the complaint to be recorded, it must be recorded.
From a wealth of personal experience in this area, I know that it is very easy for a complainant to be misled, albeit unintentionally, about whether his complaint will be formally recorded or even to be dissuaded from having a legitimate complaint recorded. The current wording gives the police or the local policing body, if it takes over responsibility, the ability not to record a complaint unless the complainant specifically asks that it be recorded. If the police inspector at the front counter tells the complainant not to worry but to leave it to him as he will have a word with the officer concerned and there is no specific request that the complaint be recorded, it could result in a complaint not being recorded when the complainant believes that it has been. This amendment is designed to reduce the chance of that happening.
Amendment 126 relates to a different issue: the conduct of chief officers of police. Part 3 of Schedule 5 is intended to require the referral of all complaints and matters concerning the conduct of chief officers to the Independent Police Complaints Commission by inserting new paragraphs into Part 3 of Schedule 3 to the Police Reform Act 2002. They provide new powers to enable the Secretary of State to specify in regulations that the IPCC must independently investigate all complaints, recordable conduct matters, and deaths and serious injury matters which relate to the conduct of a chief officer or the Deputy Commissioner of the Metropolitan Police.
Assistant commissioners of the Metropolitan Police wear the same badge of rank as, and are considered to be at least the equivalent of, chief constables or chief officers. In fact, they are paid at the highest rate of chief officer, with the exception of the commissioner and deputy commissioner of the Met, a salary equivalent to that of the chief constables of the Police Service of Northern Ireland, Police Scotland, the West Midlands Police and Greater Manchester Police. The assistant commissioner of the City of London Police wears the insignia of, and is considered equivalent to, a deputy chief officer and is outside the scope of this provision and the amendment. Will the Minister explain why assistant commissioners of the Metropolitan Police are not included with the deputy commissioner of the Metropolitan Police as officers complaints about whom must be referred to the IPCC? Our amendments would add assistant commissioners of the Metropolitan Police to the list of compulsory referrals. I beg to move.
Baroness Williams of Trafford
My Lords, I am grateful to the noble Lord, Lord Paddick, for explaining the purpose of the two amendments. The handling of complaints about the police must be customer-focused, simple to understand and transparent throughout. It is widely accepted that the current system is confusing, complicated and, in many cases, unclear. Through the reforms made in the Bill, we are ensuring that cases are dealt with quickly and effectively, for the benefit not just of the public but of officers who have done nothing wrong. Many forces already currently operate customer service teams through which all complaints about the force are filtered and whereby they try to resolve quality-of-service issues as soon as possible. The reforms in the Bill explicitly provide for that sort of model and try to make it as bureaucracy free and straightforward as appropriate.
The evidence is that this approach works. In Derbyshire in 2014-15, for example, 47% of issues raised about the force were handled outside of the formal complaints system. In Northumbria, where the triage team sits in the office of the police and crime commissioner, 36% of issues raised about the force in the first six months of 2014 were handled in this manner, with 92% of complainants happy with how their issue was handled—and this is increasing. The Government want to encourage forces and local policing bodies such as PCCs to adopt this more customer-focused approach and to resolve as many complaints as possible quickly, simply and to the complainant’s satisfaction through this route. Amendment 125 would require complainants explicitly to confirm that they were content for the force or PCC to seek a customer service solution to their issue outside of the formal complaints system. I put it to the noble Lord that this approach risks limiting what forces can achieve through informal resolution.
The Government believe that this confirmation process would lead to fewer issues being dealt with in this way and, contrary to the policy intent, increase the number dealt with in the formal system. We think it right that, unless the complainant has offered an alternative view or the complaint falls into one of the categories outlined in the legislation for why this form of resolution is inappropriate—I shall discuss the safeguards shortly—the force or PCC should first have the opportunity to draw on their experience to seek to resolve the matter through its own customer service processes. I reassure the noble Lord that the Bill includes extensive provisions to ensure the complainant is in control in this process and that forces can resolve issues outside of the complaints system only when it is appropriate to do so.
There is a clear expectation on PCCs, with their new explicit responsibility for oversight of the complaints system locally, as provided for in Clause 21, to ensure clear communication is provided to complainants about their rights when they make a complaint and how the process will work. This includes explaining that, if at any point a complainant wants his or her complaint to be recorded, it will be recorded. If the force pursues a customer service solution that falls short of the complainant’s view on what constitutes a satisfactory resolution, they can request that the complaint be recorded and handled formally. There is a statutory duty at the outset of a complaint to contact the complainant to understand how the complaint might be best resolved. Statutory guidance will also make clear that, 10 days after receipt of a complaint, it should be formally recorded, even if a customer service approach may have been proportionate. This is to ensure that this form of resolution is limited to only those issues that can be resolved quickly. Beyond that, if there is any indication that the complaint might result in disciplinary or criminal proceedings, or might meet the criteria for mandatory referral to the IPCC, it must be recorded.
Finally, there will also be a requirement on forces, to be detailed in regulations or secondary legislation, to keep some information on the issues they resolve outside of the formal complaints system—the name of the complainant, the issue, and how it was resolved. This will allow PCCs locally to scrutinise those data and HM Inspectorate of Constabulary to inspect the robustness of the decision-making of forces in deciding what is suitable for an informal resolution. Given these safeguards, we are satisfied that there is no need for an explicit requirement that the complainant must agree at the outset to an issue being resolved informally. Ultimately, the priority for most complainants is that their complaint is dealt with to their satisfaction and as quickly as possible.
I turn to Amendment 126. The complaints and discipline system is designed on the premise that, unless matters are of exceptional seriousness and sensitivity and are therefore referred to the IPCC, they should be dealt with—in accordance with the legislation—within the force’s chain of command. The exception is where there is no ultimate senior officer, such as would arise where a complaint is made against a chief constable. In these cases, most complaints are investigated by the IPCC but some may end up being investigated by chief constables of other forces. In his independent review of the police disciplinary system in England and Wales, Chip Chapman recommended that all such investigations should be undertaken by an independent body. The Government agree with this recommendation and that is why the Bill introduces a new regulation-making power that will require complaints regarding the conduct of chief officers to be referred to the IPCC to determine whether it should conduct an independent investigation or direct an investigation. However, although the rank of Assistant Commissioner of the Metropolitan Police Service is one of the highest ranks in England and Wales, there is no need to include it in the proposed measure because it can be reasonably expected that the commissioner or deputy commissioner will oversee any investigation. I hope that this clarifies the matter and that, on the basis of my explanation, the noble Lord will feel free to withdraw his amendment.
Lord Paddick
My Lords, I am grateful to the Minister. As far as Amendment 125 is concerned, I have no issue with a complainant being offered the option of informal resolution or a “customer service solution”—I never heard of that when I was in the police service; it shows how things have moved on—or a formal complaint. The problem we keep encountering in this House is the Government saying, “Well, it’s going to be be in statutory guidance and of course, in practice, if it’s a serious complaint or something that should be recorded, it will be recorded”. Unfortunately, the real world is not quite as ideal as the Minister makes out.
As far as Amendment 126 is concerned, I was with the noble Baroness until she said that matters needed to be referred to the IPCC where there was no ultimate senior officer. Quite clearly, in the case of the Deputy Commissioner of the Met, which is a specific rank for which any complaints have to be referred to the IPCC, there clearly is an ultimate senior officer: the Commissioner of the Met. Unfortunately, the explanation given by the noble Baroness does not help me to understand why the Deputy Commissioner of the Met is specifically mentioned.
Baroness Williams of Trafford
Perhaps I can explain a bit further. While new paragraph 5(1)(a) of Schedule 3 to the Police Reform Act 2002, inserted by Schedule 5 to the Bill, does cover the Deputy Commissioner of the Metropolitan Police Service, this is because, in the Police (Conduct) Regulations 2012, the deputy commissioner is treated in the same way as the commissioner. The Secretary of State is responsible for appointing the investigator of any conduct matter relating to both the commissioner and deputy commissioner. There is no mechanism to allow investigations into the deputy commissioner to be conducted internally. I hope that I have not confused the noble Lord further; I am just seeking to clarify the position.
Lord Swinfen (Con)
Will my noble friend look at the practicality of the matter, which has been so well explained?
Lord Paddick
My Lords, I am very grateful to those who have contributed to this short debate and to the Minister. As regards the comments of the noble Lord, Lord Blair, my reading of this is that it concerns complaints against the commissioner himself rather than vicarious liability responsibility—which, of course, the commissioner carries for all his officers. The clue lies in the fact that the legislation goes on to talk about “death or serious injury” matters—not that the commissioner is known for using physical violence against people.
Lord Bach
I am so sorry to interrupt again. I wonder whether there is a proper distinction between a complaint per se and a complaint that may be laid vicariously at the commissioner’s or chief constable’s door. Who will make that distinction when the complaint comes in? It will add to the existing bureaucracy and is another reason for listening very carefully to what the noble Lord, Lord Blair, suggested a minute or two ago.
Lord Paddick
I am very grateful to the noble Lord, Lord Bach, and I will leave it to the Government to respond. The deputy commissioner of the Met was, at least at one stage, considered to be a first among equals among assistant commissioners. I will have to read the second part of the Minister’s explanation on that issue. As regards the other matter, again, I will want to read carefully what the Minister said—but at this stage I beg leave to withdraw the amendment.
Lord Paddick
Lord Paddick
My Lords, in moving Amendment 126A, which is also in the name of my noble friend Lady Hamwee, I will speak to Amendment 165A in this group.
Clause 18 deals with sensitive information received by the IPCC and restrictions on disclosing that information. It amends Part 2 of the Police Reform Act 2002 by inserting new Clause 21A, subsection (3) of which defines sensitive information as including,
“information obtained from a government department which, at the time it is provided to the Commission or the paragraph 18 investigator, is identified by the department as information the disclosure of which may, in the opinion of the relevant authority … cause damage to national security, international relations or the economic interests of the United Kingdom or any part of the United Kingdom”.
When this House recently considered the Investigatory Powers Bill, where matters were considered to be related to the economic interests of the United Kingdom it was made explicit that these were only where the economic interests were directly linked to national security. Amendment 126A would insert the wording,
“so far as those interests are also relevant to the interests of national security”,
to make it explicit in this Bill as well as in the Investigatory Powers Bill. Amendment 165A makes a similar change to the term “economic interests” in Clause 35, which amends Schedule 4A to the Police Act 1996 in relation to the restriction on disclosure of sensitive information acquired by Her Majesty’s inspectors of constabulary. I beg to move.
Baroness Williams of Trafford
My Lords, Clause 18 increases the protections afforded to any sensitive information that is obtained by the Independent Police Complaints Commission in the course of its investigations or by a police or National Crime Agency investigator conducting an investigation under the direction of the IPCC. Clause 18 ensures that where the IPCC or investigator receives “sensitive information” it must not disclose that information without the consent of the “relevant authority”, as defined in the clause. To assist the IPCC or investigator in fulfilling this requirement, Clause 18 places a duty on the person providing the information to make the IPCC or investigator aware that the information is sensitive and to provide enough detail to permit the identification of the appropriate “relevant authority”. Clause 35 does likewise in respect of sensitive information received by Her Majesty’s Inspectorate of Constabulary.
“Sensitive information” in this context means: first, that provided by or that which relates to the security and intelligence services; secondly, information derived from interception; and thirdly, information provided by a government department which may, if disclosed, cause damage to national security, international relations or the economic interests of the country or any part of it. In such instances, the government department must identify it as such when it provides the information to the IPCC or investigator. Amendments 126A and 165A seek to narrow the third part of this definition by carving out information which may cause damage to the economic interests of the UK or part of the UK, unless there is a national security link. In effect, this would mean that the IPCC, investigator or HMIC would not need the relevant authority’s consent to disclose certain economically sensitive information that could, if disclosed or handled inappropriately, have a negative economic impact on the country. The drafting approach taken in the Bill in relation to the definition of “sensitive information” is not new. The drafting simply replicates the existing definition in paragraph 19ZD of Schedule 3 to the Police Reform Act 2002, which these provisions replace.
I stress that the primary purpose of Clauses 18 and 35 is not to prevent sensitive information being provided for legitimate reasons, such as to the CPS in the event of criminal proceedings, but, rather, to protect that information and ensure that it is handled appropriately. Simply because a piece of information falls under the definition of “sensitive information” in Clauses 18 or 35, the relevant authority cannot unreasonably withhold its consent to its disclosure; it is a matter of public law that decisions made by the relevant authorities must be both reasonable and rational. The Government are simply closing a gap to provide additional certainty and reassurance around the handling of sensitive information, not to prevent any greater disclosure than is absolutely necessary.
I hope that that has clarified the matter for the noble Lord and that he is content to withdraw his amendment.
Lord Paddick
I am very grateful to the Minister for that lengthy explanation, but it does not answer the question that I asked. The drafting may not be new but my understanding is that it is inconsistent with the Investigatory Powers Bill. We sought clarification and the Government agreed to put it on the face of the Bill that economic interests meant economic interests that are likely to impact on national security. It may be consistent with previous legislation but my understanding is that it is not consistent with the most recent legislation. That is the question that I hoped she would answer. I understand and accept everything that she has said; it is what is missing that is key.
Baroness Williams of Trafford
Perhaps I can provide further clarification, although I am not sure that it will clarify matters much better. Clause 18 talks about,
“the economic interests of the United Kingdom or any part of the United Kingdom”.
Clause 62 of the Investigatory Powers Bill says,
“in the interests of the economic well-being of the United Kingdom so far as those interests are also relevant to the interests of national security”.
There is a variation in the drafting of the two Bills because the provisions serve entirely different purposes. It is right that where authority is being sought to obtain communications data or to issue warrants for the purpose of the economic well-being of the UK, it should be done only where it is also relevant to the interests of national security. In Clause 18 of this Bill, the definition of “sensitive information” is intended to provide a safeguard to ensure that, whenever the IPCC handles particular types of information that originate from the security services or from government departments, it checks with the relevant authority before disclosing that information. The noble Lord does not look convinced but I hope that that has provided further clarification.
Lord Paddick
I need to improve my poker face skills. I am very grateful to the Minister for that explanation. I will read it to see whether I can get the answer to my question from what she has said, but at this stage I beg leave to withdraw the amendment.
Lord Paddick
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 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.
Lord Paddick
My Lords, I am very grateful to noble Lords who have contributed to the debate, and for the response given by the Minister. I have a confession to make: I did not write the amendments. I am glad to see that everyone fell into the same trap I did. The intention of Amendment 128, whether or not it would be the effect, is for there to be consultation on the regulations, not each time an organisation is designated. It could be that it is a mistake in the drafting—I can say that because I did not draft them.
The organisations listed in Amendment 129 are suggestions as to who authorised persons should be under the Act, not who the designated bodies should be. The authorised persons are those who can make representations to the Secretary of State to have a particular body designated or removed from the list of designated bodies. That is what I believe I explained when I introduced the amendment. The list that includes the Law Society and so forth is not a list of bodies that we think should be designated, but a list of people who should be authorised persons who can then ask the Secretary of State to add or remove people from the list of designated bodies.
I will read again the view of the Delegated Powers Committee so far as Amendment 130 is concerned, but at this stage I beg leave to withdraw Amendment 128.
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.
Lord Paddick
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.
Lord Paddick
I am very grateful to the Minister for her explanation and for admitting the concern of Her Majesty’s Inspectorate of Constabulary that support for whistleblowers at present is patchy. We welcome the changes that the legislation brings in terms of reassurance to whistleblowers. I am grateful that the noble Baroness has undertaken to take away our Amendment 132 to see whether anything can be done.
I am not sure that whistleblowers will be reassured by the noble Baroness’s response to Amendment 135, that the IPCC will do its best to keep their identity secret. Again, we are discussing whether something should be in the Bill or in statutory guidance, and if in statutory guidance it will be adhered to in the real world.
On Amendment 136, we understand that it is not the intention to restrict the recommendations that the IPCC can make in response to an issue of concern raised by a whistleblower that is not investigated by the IPCC. However, perhaps the Minister might consider putting in statutory guidance the fact that it is not the intention of the legislation to restrict the number or type of recommendations that the IPCC can make. I will reflect on what she said about Amendment 137, which appears to be a reasonable explanation. In the meantime, I beg leave to withdraw Amendment 132.
Baroness Williams of Trafford
My Lords, the important amendments in this group relate to the circumstances in which disciplinary action may be taken against former police officers and former special constables.
Clause 28 will allow for the extension of the disciplinary regime to former officers where an allegation arose before they resigned or retired, or arose within a period of time following their resignation or retirement. The relevant period will be specified in regulations and we have made it clear that we intend to specify 12 months. On Report in the Commons, the then Policing Minister undertook to bring forward amendments which would set aside the 12-month time limit in exceptional circumstances. The government amendments in this group make good on that commitment.
I start by recognising, as the whole House does, that the vast majority of police officers and special constables conduct themselves with absolute integrity. They serve our communities with distinction and loyalty throughout their careers and, in doing so, demonstrate the values set out in the College of Policing’s Code of Ethics on standards of professional behaviour. Nevertheless, and regrettably, a small minority do not meet the high standards of professionalism that the public rightly expect. The public also expect those suspected of serious misconduct to be subject to formal disciplinary proceedings and that, where officers are in the wrong, they are held to account for their actions. Indeed, that is what both the public, and the majority of decent, dedicated and hard-working police officers in this country deserve.
The Bill already contains significant reforms to increase the accountability of former police officers. As I have indicated, the provisions in Clause 28, and the accompanying regulations, will ensure that where an allegation that could have led to dismissal had the officer still been serving comes to the attention of a force within 12 months of an officer’s resignation or retirement, or where an individual resigns while an investigation is ongoing, this can be investigated or continue to be investigated and that, where appropriate, disciplinary action can be taken to hold the officer to account for serious wrongdoing. Where a case is proven, the new police barred list will ensure that the individual concerned is prevented from future service in policing.
These are important steps, but we need to go further, particularly in the wake of high-profile cases where there is a perception that retired officers suspected of committing the most serious acts of gross misconduct have not been held to account where such acts cause serious harm to public trust and confidence in policing. In these cases, which can emerge long after individuals have left policing, there is more to be done to prevent the perception that officers who have left policing are able to evade accountability. We recognise the strength of feeling in relation to such cases and, in particular, the public concern that police officers who commit the most serious acts of wrongdoing should be held to account for their actions. The Government also recognise the importance of ensuring that the measures introduced are proportionate for policing as a whole and fair for individual officers.
The amendments that stand in my name achieve this important principle of accountability and do so in a way that is robust, fair and proportionate. In effect, these create the new exceptional circumstances test, which will be applied by the IPCC and, in due course, by the director general of the Office for Police Conduct, following the reforms to the IPCC. In our view it is right that the decision as to whether the exceptional circumstances test is met is taken by an organisation independent of government and free from any politicised decision-making. The IPCC carries out its role and functions in a way that is well established within the sector as the independent watchdog for policing.
It would be only in those cases where this test is met and the IPCC has determined that it would be reasonable and proportionate to do so that disciplinary proceedings could be instigated. In deciding whether the exceptional circumstances test is met, the IPCC will have to have regard to the seriousness of the alleged misconduct, inefficiency or ineffectiveness, the impact of the allegation on public confidence in the police and the public interest. We will set out in regulations the matters to be taken into account by the IPCC in making such a determination.
This will mean that disciplinary proceedings can be brought in relation to the most serious matters which are considered of an exceptional nature where serious and lasting harm has been caused to public confidence in policing as a result of the wrongdoing. As with the original provisions set out in Clause 28, the exceptional circumstances test will not operate retrospectively. As such, these provisions will apply only to those officers who are serving on or after the date that they come into force. Where there is a finding that the former officer would have been dismissed at a subsequent misconduct hearing, the individual will be barred from future service in police and other law-enforcement agencies.
Amendment 138 gives effect to these changes in respect of former police officers, Amendment 140 in respect of former special constables and Amendment 144 in respect of former MoD police officers. Amendments 139, 141 and 145 clarify that, in cases where the investigation or disciplinary proceedings concerning the former officer, special constable or member of the Ministry of Defence Police arise from a decision to reinvestigate a matter previously closed, this can lead to disciplinary proceedings only in cases which either meet the exceptional circumstances test or where the reinvestigation commences within the specified time limit. Amendments 160, 161 and 162 are consequential on the main amendments and the changes to the governance of the IPCC. They provide that, in future, these determinations will be made by the director general of the Office for Police Conduct.
Amendments 149, 150 and 151 clarify the operation of the police advisory list. The amendment makes it clear that the duty on chief officers and others to report officers to the College of Policing applies only in the case of officers who at the time of leaving the force are under active investigation. The amendments will mean that in circumstances where an officer was previously under investigation while serving but the investigation concluded with no disciplinary proceedings being brought and subsequently the officer leaves the force, the duty to report the officer to the college shall not apply. This eliminates potential ambiguity in the legislation and makes it clear that reports are required only when an individual is subject to an ongoing investigation.
Amendments 142 and 143, in the name of the noble Lord, Lord Rosser, are directed at the same end as the key government amendments in this group. I hope that, having heard my explanation of the government amendments, the noble Lord is satisfied that they deliver a similar outcome. I commend the government amendments to the Committee and I beg to move Amendment 138.
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.
Baroness Williams of Trafford
My Lords, I thank the noble Lords who have responded to both the government amendments and the other amendments. The noble Lord, Lord Paddick, talked about the ultimate sanction for someone who had retired. The ultimate sanction is that the officer is found to have committed gross misconduct at a public misconduct hearing, with the panel finding that the officer would have been dismissed, and, therefore, as a consequence, should be added to the police barred list. Inclusion on the police barred list would see the officer banned from any future service in policing and added to the published list for a period of five years. Perhaps the noble Lord was referring to a police officer in this situation who had retired anyway and had no intention of going back into the police. However, if I had served 40 years in an organisation, such a judgment would be a pretty awful outcome for my career. Therefore, although there would be no actual effect on the person’s life, the ultimate judgment of misconduct in public office would fulfil that purpose.
Lord Paddick
I am grateful to the noble Baroness for giving way but my understanding is that, in the past at least, it has been possible in exceptional circumstances for a disciplinary authority to reduce the pension, for example, of somebody who is dismissed or forced to resign from the police service. Will the noble Baroness write to me explaining whether that sort of sanction might be available?
Baroness Williams of Trafford
I will certainly write to the noble Lord. I can envisage such a situation where somebody was sanctioned before they retired. In fact, I have the answer—the cavalry arrived in the nick of time. The measure will not directly impact an officer’s pension. However, if criminal activity is identified following an investigation and the officer is convicted, it will be open to the force, as now, to apply for some of the officer’s pension to be forfeited.
The noble Lord, Lord Kennedy, was disappointed that the measure was not retrospective in circumstances such as Hillsborough. I think that most noble Lords would share that disappointment. However, we make laws in line with established principles. It is in line with established principles that new laws generally should not be retrospective. They will apply only to officers who are serving when the relevant provisions are commenced. These matters do not in any way affect criminal investigations and prosecutions which, as now, can be pursued at any stage. So, yes, it is disappointing, but it is in line with established practice.
The noble Lord, Lord Kennedy, asked about the exceptional circumstances. I repeat that the IPCC will have regard to the seriousness of the alleged misconduct, the inefficiency or the ineffectiveness, the impact of the allegation on public confidence in the police and the public interest. I thank the noble Lords, Lord Blair and Lord Condon, for making the very important point about the necessity and proportionality of these measures.
Lord Paddick
Lord Paddick
My Lords, in moving Amendment 147A, which is also in the name of my noble friend Lady Hamwee, I will speak to our other amendments in this group, Amendments 147B, 150A and 151A.
Schedule 8, which is to be inserted as part of Part 4A of the Police Act 1996, outlines the procedures with regard to the police barred list and a duty to report dismissals to the College of Policing, which is responsible for maintaining the list. Amendment 147A removes the requirement to report cases where a civilian police employee has been dismissed for reasons of efficiency or effectiveness. The amendment probes whether the barred list should be confined to wrongdoing such as dishonesty or the inappropriate use of violence rather than a person being deemed to be inefficient or ineffective.
Amendment 147B has a similar effect on the provisions in new Section 88A(6), which defines “dismissed”. As the noble Baroness, Lady Chisholm of Owlpen, just said, someone’s employment prospects could be fundamentally affected by being placed on the police barred list. Does she not think it slightly disproportionate to include people who are considered to be inefficient or ineffective on the barred list and thereby affect their employment prospects so fundamentally?
Amendment 150A has a similar effect on the requirement to report resignations and retirements in the face of an allegation of inefficiency or ineffectiveness. Amendment 151A allows someone reported as having resigned or retired in the face of an allegation to be able to appeal against the decision to report his resignation or retirement. I beg to move.
Baroness Chisholm of Owlpen
My Lords, I have listened carefully to the case put forward by the noble Lord, Lord Paddick, for these amendments. The Government are clear that the provisions on the police barred and advisory lists should apply to police officers and civilian staff equally where individuals have been dismissed or face allegations that could lead to their dismissal for reasons of serious misconduct, incompetence or unsatisfactory performance.
The provisions for civilian staff use the language of “conduct, efficiency or effectiveness” to mirror the language in Sections 50 and 51 of the Police Act 1996, under which regulations concerning discipline for police officers are made. This is a catch-all term to encompass all circumstances that could lead to a dismissal, through the processes related to performance and conduct. The barred list provisions are designed to protect against those who have been dismissed from policing being recruited to another force or policing body having been found to have fallen so far below the standards expected of those working in policing that they have been dismissed.
Amendments 147A and 150A would remove grounds of effectiveness from the relevant categories of dismissal that could lead to a civilian member of staff being added to the barred list. It is my view that “efficiency and effectiveness” are inextricably linked; therefore, to remove one of these factors would seriously undermine the ability of these mechanisms to capture individuals who have been dismissed or who are under ongoing investigation for matters of competence or performance.
Dismissal in these cases would arise only following a prescribed and lengthy process to establish that the individual’s performance or competency has fallen well below the standards expected on a consistent basis or relate to a matter so severe that dismissal is justified. For example, the Police (Performance) Regulations 2012 define gross incompetence for officers as,
“a serious inability or serious failure”,
to perform the duties to a satisfactory standard or level.
As drafted, these amendments would create a disparity in the way that civilian staff are treated compared to their counterparts holding the office of constable with regard to what would be captured by, and the effect of, these provisions. In the Government’s view it would not be desirable to make such a distinction and create such a different approach to the information and individuals that would be captured by the barred and advisory lists for civilian staff versus police officers.
Amendments 147B and 151A seek to create a new right of appeal, specifically with regard to inclusion on either the police advisory or barred list. This is neither necessary nor desirable. Our approach is clear: if an individual has been dismissed from policing, they should be added to the barred list to prevent them rejoining another force or policing body at a later stage. It is important to note that new Sections 88F and 88L of the Police Act 1996, as inserted by Schedule 8, already provide for removal from the barred list and the advisory list. There is an existing route for appeal against dismissal via the Police Appeal Tribunal or employment tribunal. As a result, in the circumstances that a decision to dismiss an individual is overturned, this will result in the individual being removed from the barred list. This is explicitly provided for by Schedule 8.
As we see greater flexibility in roles, functions and powers exercised by civilian staff, as designated under the powers set out in Clause 37, it is important that the police barred list provisions adequately capture individuals who have been dismissed from the police service. This flexibility and application of policing powers must, in the view of the Government, be accompanied by appropriate safeguards, protections and accountability.
The police advisory list provisions are in place to ensure that adequate information is captured where an individual leaves a force while investigatory or disciplinary proceedings are ongoing. This list does not represent a statutory bar but creates a framework for capturing this information for future policing employers to take into account as part of the vetting process. To add an appeal route to this process would therefore undermine the ability of police forces and policing organisations to adequately subject incoming candidates to vetting procedures and take account of the fact that a candidate may be subject to an ongoing investigation or disciplinary process.
As with the barred list, the advisory list provisions contain safeguards so that an individual will remain on this list only while proceedings are ongoing. Where it is determined that no disciplinary proceedings will be brought or are withdrawn, or where disciplinary proceedings conclude without there being a finding that the individual would have been dismissed, the individual’s name and details must be removed from the advisory list.
Ultimately, the right of appeal against inclusion on the advisory list exists within a misconduct hearing, where it will be determined whether the individual should be dismissed and so be added to the barred list. Where dismissal is not the outcome, they will be removed when the process concludes.
Given that explanation, I ask the noble Lord to withdraw his amendment.
Lord Paddick
I am grateful to the noble Baroness for her lengthy explanation of what the barred list and the advisory list are about. However, that is not what the amendments seek; the intention behind them is to suggest that it is disproportionate to include on the lists those who are accused of being inefficient or ineffective.
Although I accept some of the points that the noble Baroness has made, it just spurs us on to look at whether the amendments we have tabled for Committee need to be refined. As I mentioned in my opening remarks, bearing in mind what the Minister said about the impact that this provision might have on employment prospects—presumably generally and not re-employment in a police service—we question whether the inclusion of “efficiency or effectiveness” is over the top.
I understand the parallel with gross incompetency for police officers. I would be interested to hear whether, since its introduction, that provision has yet broken its duck in terms of a person having been dismissed for gross incompetency. More research is to be done and no doubt we will return to this issue at later stages of the Bill. However, at this stage, I beg leave to withdraw Amendment 147A.
Earl Attlee
The noble Lord makes a very good point. I hope that the Minister will also remind us why we are changing the name at all. Legislation could be used to change the function, composition or governance of the body, but I would like to be reminded why we are changing the name at all. The general public are used to the term “IPCC” and they know what it does —and now we are changing it.
Lord Paddick
My Lords, I added my name to the three amendments in the name of the noble Lord, Lord Rosser. I entirely agree with the noble Lord, Lord Condon, and say to the noble Earl, Lord Attlee, that the IPCC has an uphill task because, necessarily, it has to rely to a large extent on former police officers as investigators. It does not do itself any favours by appointing, as it has done at least at some point in its history, a former staff officer to a Commissioner of the Met as its head of investigations—that hardly inspires confidence in those looking at it subjectively from the outside or conveys the message that it is completely independent.
Cynics might say that removing “Independent” from the title of the organisation is an outbreak of honesty in the Government. But that is not the direction that we should be moving in. This should not be seen simply as a cosmetic change; it needs to have some substance behind it. To call it the Office for Police Conduct, without “Independent” in there, is manna from heaven to those who want to criticise the new body as not being independent at all. For those reasons, I strongly support these amendments.
Baroness Jolly (LD)
My Lords, I will not detain the House long on this small but very important amendment. This is the first time I have spoken on the Bill. The interest is relatively niche and relates to the three service police forces and the 160,000 men and women who serve in our Armed Forces.
The aim of the amendment is to insert a clause that extends the remit of the IPCC to the service police forces. I am not alone in this desire. Her Majesty’s Inspectorate of Constabulary recommended that oversight of service police should be brought within the competence of the IPCC. In a report last year on the Royal Military Police, the Army’s investigative and policing branch, stated:
“There was insufficient public scrutiny of RMP investigations. The RMP does not report to the public, and investigations into RMP wrongdoing are carried out by an internal Professional Standards Department or the Provost Marshal of another service police force”
It added:
“The Provost Marshal acknowledged to HMIC that a strategic risk to the RMP is inadequate independent oversight of its own independence.”
Only last week, the RMP finally admitted to failings in a rape case in 2009, that of Anne-Marie Ellement, a member of the Royal Military Police, who claimed that two of her colleagues raped her. She took her own life in 2011. The MoD said, seven years after the rape case, that it was clear that mistakes were made and apologised to the family.
Had the IPPC’s remit covered service police forces there would have been another avenue to take the concern. This is a terrible case and I am sure the service police forces have taken a long hard look at themselves, but it is not the only case where they have been found wanting. Had there been the opportunity, an independent complaints commissioner could have intervened.
I feel sure that the Minister will refer to the chain of command—this is important to military discipline—and the fact that there is a Service Complaints Commissioner. There is, but the system was ineffective in this case. Our servicemen and women have rights and those rights are best upheld if this amendment is accepted.
I remind the Minister that in 2014, the Defence Select Committee called for a timescale to be set out to bring the service police under the auspices of the IPCC. Has such a timetable been agreed? If the answer is no, in the light of this week’s announcements, how much more likely it is that the MoD would review the situation?
Lack of accountability of the service police undermines the rule of law and makes it harder for them to undertake their function of policing by consent. This amendment gives the opportunity to bring the three police services into the same independent system of oversight as applies to the rest of us. If the Minister is not able to help this afternoon, will she agree to meet me to look at it further? I beg to move.
Lord Paddick
My Lords, I support the amendment in the name of my noble friend Lady Jolly and myself. My noble friend has made a very strong case, not just because it was Her Majesty’s Inspectorate of Constabulary’s recommendation that the three service police forces should come under the remit of the IPCC. Those responsible for the Royal Military Police have accepted that the organisation is at a strategic risk because it does not come under the remit of the IPCC. If the Government are not prepared to accept the amendment, it would be very interesting to hear from the Minister why not.
Lord Rosser
I will just add briefly to the comment made by the noble Lord, Lord Paddick, at the end of his speech. If the Government do not feel inclined to accept the amendment, there is a need—I am sure it will happen when the Government respond—to hear precisely what their reasons are for not going down that road. It has been said that no comparable body to the IPCC exists to deal with complaints about service police forces. A significant number of forces and agencies do fall within the jurisdiction of the IPCC, including, I understand, the Ministry of Defence Police. If the Government do not accept the amendment, like the noble Lord, Lord Paddick, I wait to listen with interest to their reasons why not.
Lord Paddick
Lord Paddick
My Lords, Amendment 164A is in my name and that of my noble friend Lady Hamwee. I will also speak to the other amendment in the group, Amendment 164B. Clause 35 addresses the powers of inspectors—that is, Her Majesty’s Inspectorate of Constabulary—to obtain information, to secure access to police premises, and other matters by substituting paragraphs 6A and 6B in Schedule 4A to the Police Act 1996. New paragraph 6B talks about the powers of inspectors to obtain access to police premises and paragraph 6B(1)(a)(iii) talks about who can be served with a notice requiring them to allow access to premises, including,
“a person providing services, in pursuance of contractual arrangements (but without being employed by a chief officer of police of the police force or its local policing body)”.
The amendment deletes “but” and replaces it with “with or”, so it would cover a person who is employed by the police, as well as someone who is not. Amendment 164B makes a similar change to who can appeal against such a notice. I beg to move.
Baroness Williams of Trafford
My Lords, the amendment presumably aims to ensure that inspectors have comprehensive access to premises used for policing purposes, and that Her Majesty’s Inspectorate of Constabulary is able to inspect the totality of policing in a landscape where functions are increasingly delivered by multiple agencies. The noble Lord nods; I thought that was probably the aim. The Government wholeheartedly agree with that aim, which is the purpose of this Bill’s inspection provisions.
The amendment does not actually further that aim. The current wording already ensures that inspectors have access to any premises used in the delivery of policing functions, whether they are occupied by the force itself, the local policing body, another emergency service acting in collaboration with the force or a private company carrying out the activities of a force under a contract. I put it to the noble Lord that these amendments would not, in practice, extend the categories of premises to which an inspector had access. Any premises occupied for the purposes of a police force by persons employed under contract by the chief officer are already captured in these provisions. That being the case, I think the noble Lord would agree that the amendments were unnecessary. I invite him to withdraw the amendment.
Lord Paddick
I am grateful to the Minister for that explanation. Clearly the amendment is not designed to extend the category of premises that HMIC would be able to access. It is about extending the category of person upon which a notice could be served. It appears to us that the wording in the Bill is restrictive and needs to be broadened. We are trying to broaden the category of person on which the notice can be served.
Baroness Williams of Trafford
It might be helpful to the noble Lord to hear that this is covered by government Amendment 166, which ensures that any other person who is,
“by virtue of any enactment … carrying out the activities of”,
a police force is subject to inspection.
Lord Paddick
I am grateful for that second explanation and will consider it carefully. In the interim, I beg leave to withdraw the amendment.
Lord Paddick
I support the amendment tabled in the name of the noble Lord, Lord Rosser, and again express my concerns about this move to give police volunteers considerable powers, including authorising them to use incapacitant sprays. I share the concerns that the noble Lord, Lord Kennedy of Southwark, expressed in terms of public confidence in volunteers being given these weapons.
If somebody wants to volunteer to get involved in the use of force in the exercise of police powers, as would be the case in using incapacitant sprays, there is an avenue open to them: volunteer to become a special constable. They then have all the powers of a regular police officer, undergo extensive training and wear uniform almost indistinguishable from a regular police officer. As a consequence, there is no need for this Bill to give other volunteers the powers in this clause. If they want to help the police service by volunteering for other activities that do not involve the use of force, then of course it is open to them to do so, but in that case they would not need the powers that this clause would give volunteers.
Again, this adds complexity to what is already a complex policing family. There is already confusion among some members of the public about the different powers available to police community support officers compared with police constables; for example, at the scenes of road traffic accidents, where police community support officers have to stand at the side of the road and wait for a police officer to turn up to take control of any resulting traffic congestion because they do not have the power to direct traffic. Having volunteer community support officers would add a further level of complexity and confusion in the eyes of the public. Not only do we consider this clause unnecessary, but we feel that it could add to confusion and further undermine what the police service is trying to achieve in very difficult circumstances in the face of significant cuts to its budget.
Baroness Redfern (Con)
My Lords, I support the powers of police civilian staff and police volunteers, who deliver extra support and complement our police officers. In Lincolnshire two years ago the first VPCSOs were recruited as an extra uniformed visible presence in local communities, supporting the work of regular PCSOs in providing reassurance and support to local people. The word “extra” is important as these officers were designed not to replace existing provision but to supplement it.
The VPCSO role is varied but includes: giving advice and reassurance to victims and witnesses of crime; supporting policing operations by providing reassurance to members of the community; working with police officers, PCSOs and other police staff on policing priorities; and working within the local policing team on minor incidents, crime inquiries and anti-social behaviour, with a commitment to at least four hours a week on patrol in their local area.
The force has developed a role profile for VPCSOs with eligibility requirements that are the same as for PCSOs, such as minimum age, residency, skills and qualities, health, and vetting. Applicants undertake a selection process that includes an interview to test that their personal qualities meet those required in the role profile. Induction and initial training is undertaken over five weekends, followed by a further two weekends’ consolidation a few weeks later once they have gained some experience.
From a pilot stage to a valued part of visible policing in Lincolnshire, this has been pioneered and funded entirely by the PCC and chief constable and has offered an innovative way to supplement local policing while enhancing the range of opportunities available to local residents who wish to volunteer and contribute to their community. It is also a possible route to becoming a regular officer. The important changes in the Policing and Crime Bill to allow VPSCOs to have powers will improve the flexibility and efficacy of the role. Most importantly, these officers offer an extra uniformed, visible presence, thus addressing many, many residents’ requests and supporting our valued police officers.
Baroness Williams of Trafford
My Lords, I thank all noble Lords who have contributed to this debate. It is of course very difficult not to stray into other amendments when talking about something in the round. I thank my noble friend Lady Redfern for laying out her experience of using volunteer police officers in Lincolnshire. It must be one of the first areas in the country to do that, so it was very useful to have that information in the round. In thinking about my noble friend Lord Deben’s point about the importance of the public knowing the difference between a volunteer and a special police constable, or indeed a fully trained officer, I asked myself whether I wondered, when my children were at school, what the difference was between the teaching assistant and the fully trained teacher. In fact, as long as they both contributed to my child’s education, I was not that much bothered—but it may be an issue for some people and I recognise the point that my noble friend makes.
Amendment 167 returns to an issue that was debated at length in the House of Commons: namely, whether it is ever right for designated members of police staff, or the new category of designated volunteers, to carry these particular sprays for defensive purposes. The noble Lord, Lord Rosser, has also given notice that he intends to oppose the question that Clause 38 should stand part of the Bill.
I hope that I can assist the Committee by first explaining what Clause 38 seeks to achieve. It makes necessary consequential amendments to the Firearms Act 1968 to ensure that police volunteers come within the definition of “civilian officers” for the purposes of that Act. The effect of this is that they do not then need a firearms certificate or authorisation under either Section 1 or Section 5 of the 1968 Act in order to carry a defensive spray. The clause simply puts community support volunteers and policing support volunteers in the same position in relation to defensive sprays that police officers and police civilian staff are currently in.
Clause 37(6) makes it clear that police staff and volunteers cannot use other weapons within the meaning of the Firearms Act 1968 unless the Secretary of State makes regulations under new Section 38(9B)(b) of the Police Reform Act 2002. Any such regulations would be subject to the affirmative procedure.
Lord Paddick
To clarify what the noble Baroness has just said, could the Secretary of State, by regulations, authorise police volunteers to carry guns, if they were so minded?
Baroness Williams of Trafford
My Lords, I will repeat that Clause 37(6) makes it clear that police staff and volunteers cannot use other weapons within the meaning of the Firearms Act 1968 unless the Secretary of State makes regulations under new Section 38(9B)(b). Yes, it does read like that—but, as the law currently covers this, it is only trained police officers within London who can be armed.
Lord Paddick
Yes, but I think the Minister has just agreed with me that, through regulations, the Secretary of State could allow police volunteers to be given guns without the need for a firearms certificate. That is slightly worrying.
Baroness Williams of Trafford
My Lords, I am pretty much as certain as I ever can be about anything that it is not the intention of the Bill to allow volunteers to carry guns—but I suspect that I need to provide some further clarification, and hopefully I will do that.
Lord Condon
Before the Minister finally sits down, I ask her to acknowledge and perhaps clarify this point. We are considering this very important crossover point from special constables being given these powers to volunteers having them in the context of what the Bill is also doing. It is enhancing the role of police and crime commissioners by giving them the ability to consider taking on the responsibility for fire and rescue services, and giving them the power to appoint the fire chief as the overall chief officer for policing and for fire. The Bill will create a model whereby, for example, a relatively young 32 year-old police and crime commissioner in an area can choose to appoint the fire chief as the overall chief officer of policing and fire in that area—admittedly, with the approval of the Secretary of State—and in that context a young, relatively inexperienced PCC with a chief officer who may not have a police background could take decisions on what volunteers could and could not do. The notion of them being given potentially lethal force is quite a big issue. I look forward to the Minister, as I am sure she will, giving us some reassurance about the notion of volunteers being able to have pepper sprays that in theory can kill people.
Lord Paddick
I do not want to prolong the agony, but another aspect of this is that members of the public should be reasonably sure about what level of force they are going to encounter from whom. As I say, special constables now are virtually indistinguishable from regular police officers; if a special constable decides to use a defensive spray, that will not come as a shock to the member of the public. In terms of the way that the member of the public interacts with a police officer or special constable, they may or may not use force against that individual on the basis of what they anticipate the reaction of that person to be, or the ability of the person to respond to it. When it comes to a volunteer police community support officer, who does all the wonderful things that the Minister said earlier, I think it is going to be a bit of a shock, and an unreasonable one, to expect such a volunteer to respond with an incapacitant spray.
Baroness Williams of Trafford
My Lords, may I perhaps make a bit of progress on what I was already outlining? Much of what I am going to say answers the questions that noble Lords are asking.
The argument has been put forward that issuing PCSOs with defensive equipment is somehow incompatible with those officers’ primary role, which is to engage with members of the public in their communities. If we examine the way in which different forces equip their PCSOs, we can see that there are different approaches. Some forces equip their PCSOs with body armour and some do not, and the same is true of handcuffs, yet all forces use their PCSOs as the key point of engagement with their local communities. I was one of the people who was very sceptical about PCSOs, but they now have a lot of respect in communities across the country. If the prevailing security situation were such that a particular chief officer considered it necessary to issue their PCSOs with defensive sprays—I emphasise to noble Lords that none has to date—the Government consider that they should be able to, subject of course to the test of suitability, capability and training already set out in the Police Reform Act 2002.
It has also been argued that it is impractical to train volunteers in the use of defensive sprays, to which our response has two limbs. First, if an officer or volunteer has not been properly trained in the use of any power, the law simply does not allow a chief officer to designate that officer or volunteer with the power in question. Section 38(4) of the Police Reform Act 2002, as amended by Clause 37 of the Bill, already states that a chief officer cannot designate the person with a power unless they are satisfied that they are both suitable and capable of exercising the power and that they have received adequate training in the exercise and performance of the powers and duties to be conferred.
However, we do not consider that it is impractical to train volunteers in the use of defensive sprays. On 31 March this year, there were over 16,000 special constables in the 43 police forces in England and Wales and the British Transport Police, all of whom have the full powers of a police officer, performed on a volunteer basis for at least 12 hours per month.
I was grateful to listen to the noble Lord, Lord Paddick, at Second Reading, on his strong support for members of the special constabulary, with whom he will definitely have worked during his career policing. As he said, special constables receive extensive training and have all the powers of a regular constable. Many of those specials patrol on a regular basis with their full-time colleagues and they carry identical equipment, including body armour, batons and defensive sprays—again, in exactly the way as their full-time colleagues. It is therefore patently not the case that it is impractical to train volunteers in the use of such equipment. Any volunteer who did not want to carry such a spray, could not undertake the training or was not suitable would not be designated by their chief to carry and use it, even if others in their force were so designated.
Lord Paddick
On a very similar point, the Minister just said that while chief constables have the power to issue incapacitant spray to PCSOs, no chief constable has done so to date. Why do the Government now feel it necessary to give chief constables the power to give incapacitant spray to volunteer community support officers?
Baroness Williams of Trafford
It is simply to give chief officers the flexibility to use their workforce and their volunteer force to the best end in fighting crime and reassuring communities. The noble Lord, Lord Harris, asks why, for example, a volunteer cannot simply become a special constable. There are many reasons why you might want to be a volunteer rather than a special constable. We are focused today on the deployment of PAVA and CS spray, but actually a volunteer could be a police volunteer. They could be a retired accountant, for example, or a retired lawyer, and may want to bring their skills to the police but may not want to volunteer for any more than that, or indeed become a special constable.
Criminal Justice: Anonymity
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Baroness Williams of Trafford
I can tell the noble and learned Lord that guidance and reference material is published by the College of Policing on its Authorised Professional Practice website. It discourages the naming of suspects save in clearly identified circumstances. The College of Policing is consulting on that guidance and we look forward to reading what that throws up.
Lord Paddick (LD)
My Lords, does the Minister agree that, although there is a principle of being innocent until proved guilty, when it comes to sexual offences the attitude of many of the perhaps irresponsible media, and certainly the attitude of many members of the public, is that the principle is that there is no smoke without fire?
Baroness Williams of Trafford
I certainly agree with the noble Lord, and in fact we spoke about this very point yesterday. We talked about the need for balance, as well as the responsibility of the media. We can all think of cases where the media have reported in perhaps totally irresponsible ways, so in that sense I concur with what he says.
Independent Inquiry into Child Sexual Abuse
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Baroness Williams of Trafford
My Lords, the inquiry has made good progress since it was established. It is not appropriate for me or the Home Secretary to be briefed in detail on the activity of an independent inquiry while it is under way. However, the inquiry has indicated that it is making good progress in all 13 investigation strands. Preliminary hearings have taken place, evidence has been called for, and the inquiry has received more than 47,000 documents. A research project has been established to support the inquiry’s existing investigations, assist to scope and define future investigations, publish original research on child sexual abuse and analyse information that the inquiry receives from victims and survivors. In addition, sessions have been arranged for hundreds of victims and survivors to come forward and share their experiences with the inquiry. Noble Lords may have seen a statement made earlier today by the chair on her view of the terms of reference. She says that she believes that the terms of reference for the inquiry are necessary and deliverable. She had previously undertaken that an interim report would be with the inquiry before the end of this financial year.
On financing, as I said, the inquiry had a budget of £17.9 million last year. It underspent on that by some £3 million.
Lord Paddick (LD)
My Lords, we on these Benches are concerned that lessons of past child sex abuse cases should be learned and applied as quickly as possible. Can the Minister reassure the House that immediate steps to address obvious weaknesses in the way such cases are dealt with will not be deferred pending the outcome of this inquiry?
Baroness Williams of Trafford
My Lords, I understand that an internal review of the inquiry will take place. The noble Lord talked about consideration of current cases. Sorry, will he repeat the final bit of his question?
Lord Paddick
The concern that we have is that because this inquiry is taking such a long time, there might be some obvious weaknesses in the way that these cases are currently being dealt with that could be addressed but are being put off because the inquiry is still ongoing.
Baroness Williams of Trafford
That would be a matter for the inquiry to consider. It is an independent inquiry and it is not for us to try to micromanage or dictate what it does. It is independent. But I take the noble Lord’s point and I am sure the inquiry will be mindful of that.
Policing and Crime Bill
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Baroness Scott of Bybrook
My Lords, as the noble Lord, Lord Rosser, has mentioned Wiltshire and Dorset fire authority, I should make it clear to the House that the joining up of those two fire authorities was made under the previous coalition Government, not this Government. A different view has been taken by this Government on this Bill. That is why I asked the Minister whether we could decouple them. The most important thing for the community—I am talking about Wiltshire, not Dorset or any other authority area—is how we can maximise the effectiveness and efficiency of our blue-light services over a particular geographic area. I do not mind who runs them, I just want the services that local people want to be efficient and effective and to be delivered together.
We cannot get away from the fact that, for any road traffic accident, ambulance, police and fire services will all attend. Can we do things better and can we be more effective or more efficient? When we have floods, for example, all three services are probably going to be at a particular place at the same time—along with, I have to say, the local authority and emergency planning. It is not a matter of how we govern a service but how we make it more effective for people and more efficiently delivered.
Lord Paddick (LD)
My Lords, I rise to support, to some extent, the remarks of the noble Lord, Lord Rosser. Police and crime commissioners have an extremely complex and wide-ranging job to do as it is. It is not simply overseeing the police service and arranging for its funding, it is also working with other agencies to ensure that crime is reduced in their local area. It is an extremely large and complex operation. To add to that at this early stage in the evolution of the role of the police and crime commissioner could throw the progress that has been made to date off course.
There are of course situations where the police, fire service and ambulance service work together, such as floods or road traffic accidents, but there are distinct areas where the police operate alone, such as law enforcement. There is a very serious and important role that the police and the police and crime commissioner perform in crime reduction, crime detection and prosecution of offenders that does not involve the fire or ambulance service in any way. Indeed, we have seen that when there has been spontaneous public disorder on the streets of the UK, there is a very different approach towards the police and, say, the fire brigade and ambulance service—there is a lot more hostility towards the police. Any merging, or unnecessary merging, of those organisations —creating confusion in the public’s minds—could create more problems than perhaps the Government have hitherto considered.
One has only to read the Bill to see the enormously complex changes in legislation that will be required if police and crime commissioners take over fire and rescue services, particularly if the employees of the fire and rescue service become employees of the police and crime commissioner, or even of the chief constable.
I can see enormous benefit from greater co-operation between emergency services, but an enormous administrative nightmare from going that one further step of allowing police and crime commissioners to take over the running of fire and rescue services. I agree with the noble Lord, Lord Rosser, that the Government, as far as I can see, have not made out a compelling case to show that the advantages will overcome the enormous bureaucratic, administrative and legislative problems created by police and crime commissioners taking over fire and rescue services.
Lord Bach
My Lords, I agree very much with what my noble friend Lord Rosser said on Clause 6. However, I also agree very much with what the noble Lord, Lord Paddick, said about the role of a police and crime commissioner. That job involves a large amount of full-time work right from the start, but I would say that, wouldn’t I? The noble Lord mentioned a police and crime commissioner being the bridge between the police and the public in the area in which he or she is elected. Every new police and crime commissioner and, I suspect, those who were re-elected, has to produce a police and crime plan by 31 March next year. That is a formidable undertaking, certainly for the likes of me. Already, a large part of my life is spent trying to work out what I will put in the plan and, perhaps more importantly, what I will not.
In addition, as the noble Lord, Lord Paddick, hinted, partnerships have to be formed—these are very important in a police and crime commissioner’s work—and commissioning has to be carried out to make sure that the limited but important amount of resource that a police and crime commissioner is given under the 2011 Act is used for the general activity of preventing crime and making communities safe. All the while, of course, there is an obligation to look, as a critical friend, at the police force with which they are connected. As far as I am concerned, that is a pretty full-time job. Perhaps I have been lucky in my life, in that that seems an extremely hard-working role.
I do not think there is anything wrong with amalgamating services, if a community wants that. I know the Minister will argue in due course that this is a voluntary step. I will come back to that in a moment. Following our earlier discussion on collaboration, this measure does not fit terribly well with the best collaborative work, which is voluntary, bottom-up, happens, works or does not work and is experimented with. The scheme will look to many people as one that is effectively being imposed.
Orgreave: Public Inquiry into Policing
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Baroness Williams of Trafford
Like my noble friend, I remember those years, because I lived in a mining village in the north-east. As she considers all the evidence from the campaign, the Home Secretary will weigh up what it says and decide whether to pursue an inquiry. She will do that quickly.
Lord Paddick (LD)
My Lords, I declare that I was a serving police officer at the time of the miners’ strike, but I played absolutely no part whatever in its policing. Would the Minister agree that holding a public inquiry at the same time as criminal and police misconduct investigations could create legal complexities, and that the Home Secretary needs to take the views of the IPCC carefully into account, along with the views of the others involved, even if the IPCC is not making the decision about the public inquiry itself?
Baroness Williams of Trafford
It is important to understand the two roles—the noble Lord of course does. The Home Secretary will arrive at her conclusions based on the evidence she looks at over the next few weeks. The IPCC will take a view as an independent body.
Policing and Crime Bill
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Lord Paddick (LD)
My Lords, I also congratulate the noble and learned Lord, Lord Keen of Elie, on seeing off any potential challengers to his position as Advocate-General for Scotland. However, I am not sure that policing has been transformed in the way that the noble and learned Lord said it had been in his opening remarks. I therefore agree with him that further reform is necessary, and like the noble Lord, Lord Rosser, we support many provisions in the Bill.
We welcome measures to allow further collaboration across the blue-light services, but we are concerned about placing fire services under the control of police and crime commissioners. The policing and prevention of crime and disorder is an enormous undertaking already, without police and crime commissioners being given a completely new area of responsibility. This is a gamble not worth taking. In the same way as the former Home Secretary shied away from police force amalgamations in favour of encouraging the merger of back-office functions and joint tendering for goods and services, we should now draw back from placing the operation of the police and fire services under one strategic lead. Although the savage cuts this Government have placed on police services may have reduced the service to fire brigade policing—only attending when there is an emergency—that is no reason to effectively merge the services at an operational level.
The Government’s proposals to increase the independence of the investigation of police complaints, which thankfully appear to go further than simply changing the name of the Independent Police Complaints Commission, are to be welcomed. Sadly, there is evidence to suggest a culture in the police service, at least in the past, that puts the reputation of the police service before the open and transparent investigation of wrongdoing. We need therefore to carefully consider whether passing decision-making on some aspects of complaints against the police from chief police officers to police and crime commissioners provides sufficient independence. I should at this point emphasise that I am a retired police officer and the provision to allow disciplinary action to be taken after an officer leaves the police service could hypothetically affect me, although not as the Bill is drafted. I say “hypothetically” as, as far as I know, there are no outstanding disciplinary matters against me—he looks nervously at the Benches opposite.
I have sympathy with calls for changes to the Bill to allow disciplinary proceedings to be taken in serious cases beyond 12 months after an officer leaves the service and for the provisions to be made retrospective. The gap is likely to be narrow between very serious disciplinary misconduct and criminal behaviour, prosecution for which is clearly not dependent on whether a police officer is still serving, but, in my opinion, police officers should not be able to avoid being held to account for serious misconduct because they have left the service. We also need carefully to examine the protection given to whistleblowers employed by police services. I am concerned to ensure that, should the matter become disciplinary, the whistleblower continues to be protected.
Increasing the power of Her Majesty’s Inspectorate of Constabulary is also welcome, although the power for the chief HMI, instead of the Home Secretary, to appoint assistant inspectors needs to be looked at carefully. That is fine when the chief HMI is not a retired police chief and the assistant HMI is not a police officer but if in future the previous practice of appointing former chief constables as chief inspectors of constabulary is resumed, I would not be as relaxed about them appointing their own former colleagues as assistant HMIs.
The provision to give police volunteers police powers is as worrying as it is puzzling. Most people can be volunteer police officers, police officers in their spare time. They are called special constables. They receive extensive training and have all the powers of a regular constable. Unless you know where to look, they are indistinguishable from regular police officers—they wear a small insignia on their uniform that depicts their status. Everything should be done to encourage and nothing should be done to discourage people from becoming special constables. To give other police volunteers police powers such as those enjoyed by police community support officers appears to me unnecessary, counterproductive and even more confusing for the general public.
I am not sure there will be much opposition to the abolition of traffic wardens. I would prefer the decision whether to have police officers of a particular rank to be left as an operational decision for chief police officers rather than an executive decision made by the Home Secretary by regulation.
The time limitations being placed on police bail and its strengthening in terms of compliance by the subject are welcome, but the Government need to be aware that the increasing challenge of meeting tight deadlines for investigations against a backdrop of fewer police officers to carry them out will be a real challenge.
Another aspect of recent high-profile cases also needs to be discussed. We intend to bring forward amendments in Committee so we can debate whether pre-charge anonymity should be given to those accused in the unique circumstances of historic child sex abuse investigations. The police and the CPS face unique challenges in bringing successful prosecutions when offences were committed more than a decade ago, and the publicity for those accused but not charged can be devastating. I believe that the concerns of those who fear that other victims may not come forward can be addressed.
We also welcome provisions to protect young adults in custody and those detained who are in mental health crisis but, as the noble Lord, Lord Rosser, said, that is provided that National Health Service mental health provision is properly funded to ensure that the gap created by not using police cells is covered by the National Health Service.
The provisions that compel those whom the police believe not to be British citizens to produce their passports again draws the police into the front line of immigration enforcement—a worrying trend already started by the provisions in the Immigration Act 2016. Marine enforcement powers in the Bill, which may not concern many British citizens, raises the potential for scenes reminiscent of Australia turning sinking ships full of asylum seekers away from their shores. That any ship can be boarded, searched and forced into port, if any offence that is an offence in England and Wales has been committed on board, appears disproportionate.
There are other matters on revenge porn and the use of tasers in mental health settings that we in the Liberal Democrats raised in the other place during debates on the Bill, and we wish to debate those issues again in this Chamber.
I apologise for taking so long and for not comprehensively covering the areas that we want to scrutinise in this Bill in my opening, but when the Long Title of the Bill is over 300 words and the Bill itself is over 300 pages, I hope noble Lords will understand why.
Policing and Crime Bill
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Baroness Hamwee (LD)
My Lords, another day, another 323 pages of Home Office legislation. I realise that for the noble and learned Lord, who has had to immerse himself in it, this must be a bit like having his client settling at the door of the court, as he will not be able to continue with it. We have a Long Title which is long enough for the antennae of many noble Lords to twitch with the prospect of introducing their specialist subject—the noble Lord, Lord Moynihan, demonstrated that amply.
As it always does, the House has demonstrated much expertise in, and practical experience of, aspects of policing. This is called the Policing and Crime Bill but, from the preponderance of briefings that I have received—other noble Lords will, no doubt, have as well—I wonder whether a significant part of it should have been led by the Department of Health. The noble Lord, Lord Brooke of Alverthorpe, made a similar point, though perhaps coming from a different perspective. There are four clauses, out of more than 150, on powers under the Mental Health Act. While the organisations from which I received briefings gave some welcome to these, the concern to do more and better comes through loud and clear. As Mind pointed out—and the noble Baroness, Lady Howe, reminded us—the Mental Health Act 1983,
“allows people to be deprived of their liberty when they haven’t committed, or are not suspected of having committed, a crime”.
Concerns about the places of safety provisions have been expressed in the Chamber and from outside including, most recently, from Black Mental Health, some of which came through on my iPad after we had started the debate.
Inevitably, there has been a focus on resources. I hope we might hear something positive from the Government—a Government who acknowledge that mental health services are a Cinderella. My right honourable friend Norman Lamb had seven amendments in the Commons. Reference has been made to some of his concerns, but not to disallowing the use of tasers by police officers on psychiatric wards. They have no place in mental health care—I stress care—nor, really, do the police. We will pursue his concerns and, I suspect, more, as we have more scope in this House.
According to the Long Title, the Bill will,
“make provision to combat the sexual exploitation of children and to protect children and vulnerable adults from harm”,
but not as extensively as the children’s organisations which work so effectively together point out. We have heard concerns about extending child abduction warning notices, online offences, disrupting grooming and therapeutic support for victims of abuse, which is something I feel strongly about.
As the noble Lord, Lord Blair, said—and I think the noble Lord, Lord Rosser, did too—the Bill was introduced as “finishing” the job of police reform. Will it ever be finished? Some 42 police forces provided information to a Liberal Democrat FOI request about 101 calls. This is nothing to do with Nineteen Eighty-four—I have not got my Bills mixed up. From 2012 to date, 3.5 million calls were unanswered. These 101 calls may not be about emergencies, but that does not mean they are not about serious matters. To the citizen, any call to the police which is unanswered is serious.
I share doubts about whether the administrative arrangements will lead to increased confidence. Much has been said this afternoon about local collaboration between the blue-light services. Along with my noble friend Lady Bakewell of Hardington Mandeville, I feel that local authorities should have a leading position in decisions around this. Allowing police and crime commissioners voting rights at local authority meetings is, at the least, questionable. My noble friend referred to the term “good will”, which is an immensely important point, and I remember the chambers of commerce report to which she referred.
I turn to governance issues. Maybe the summer holidays will re-energise us all and enable us to come up with an enormous raft of amendments to debate the points to which our attention was drawn by the noble Lord, Lord Harris, and by the noble Lord, Lord Bach, in his compelling speech. We are told all this is based on efficiency and effectiveness, but whether that is fulfilled rather depends on the criteria you set.
On the subject of confidence, I take the point made by the IPCC—as it still is—that a change of name to Office for Police Conduct is likely to be read by the public as meaning a police body, not an independent one, as my noble friend Lady Harris of Richmond said. There is far more to be addressed on conduct and complaint matters, but I will indulge myself by saying that “super-complaint” seems to me to be a very unfortunate term.
There is also appropriate concern about what has been called the constitutional novelty of directly elected politicians taking on a quasi-judicial function.
How the police use civilian staff seems to have swung to and fro over quite a short period. When I was first concerned with the Metropolitan Police’s budget, through my membership of the London Assembly, we often questioned what seemed to be a widespread view that you could not, for instance, handle human resources if you did not wear a uniform. The pendulum has swung a lot. Whether expanding the role of civilian staff and volunteers—no doubt driven by cost-cutting—jeopardises the service, is something which we must discuss. I recognise a lot of what the noble Lord, Lord Blair, was talking about. I do not know whether I should be concerned, but I am, about the impact of all this on neighbourhood policing. Its status, and the investment in it, seems to have been reduced—I might even say downgraded—over not a very long period.
The provisions about the detention of 17-year olds show the value of the European Convention on Human Rights. We have a 35-page human rights memorandum and there are, of course, enhancements of human rights in the Bill. Like others, I suspect this is because of the scrutiny role of this House. I do tend to go straight for the problem areas and forget to acknowledge the good bits. There is also an 85-page delegated powers memorandum, so that might turn out to be material for scrutiny.
The requirement to confirm nationality will take us to human rights issues and, for the second time in a matter of months, to the confusion of the roles of police and immigration officers. This was raised by the Joint Committee on Human Rights, of which I am now a member. In a letter to the then Home Secretary, the chair of the committee wrote:
“Although the Government has accepted that Article 14 of the Convention may be engaged in respect of foreign nationals, the ECHR memorandum does not consider any potentially differential impact on BAME UK citizens”.
She referred to the,
“discretion to the individual officer as to whether or not to ask the arrested person to state their nationality. This raises the prospect of UK nationals who are members of ethnic minorities being more likely to be asked to state and then prove their nationality than other UK nationals”,
with a risk of discrimination contrary to Article 14 in conjunction with Article 8. On behalf of the committee, she asked the Government to,
“address this issue of possible differential impact and explain how this differential impact can be avoided or justified”.
The answer was that:
“it is considered that such interference”—
requesting proof of nationality—
“is proportionate and justified to the pursuit of a legitimate aim—namely being able to properly exercise an effective immigration control”.
There is either a circularity or an assumption about what the problem is there. It does not answer the question but answers another point entirely. The Minister replying pointed out that,
“both immigration officers and the police must comply with public law principles”,
including,
“the requirement to act reasonably in all circumstances”,
and that their actions or decisions,
“may be challenged in the courts by means of judicial review”.
I have to say that I do not find that convincing.
Maritime enforcement also raises human rights issues and issues around the refugee convention. We do not seem to have a Minister with particular responsibility for refugees now, which is a pity because their plight must not go out of the headlines and I know that this House will not relegate the matter.
The noble Lord, Lord Condon, referred to a long list of problems that will have to be addressed because of our exit from the EU. Would that we could sort them out in the Bill.
I have said enough for today except for my last note, which says, “Whinge about the timing of Committee”. I am not sure whether this Policing and Crime Bill will be light relief from the Investigatory Powers Bill, as jam in the sandwich during our two weeks in December—
Baroness Hamwee
I meant September; that was wishful thinking. I do not suppose that that sandwich arrangement would be particularly welcome to Ministers either, but it will not deter us from raising issues on either Bill which we feel must be raised. On the same basis as it takes longer to write a piece for the Sun than for the Guardian, there may be rather a lot of amendments.
Terrorist Attack in Nice
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Lord Rosser (Lab)
I start by welcoming the Minister to her new post and the quiet life that involvement with the Home Office normally provides. I also thank her for repeating the Statement already made in the Commons.
I am sure that everyone in this House would wish to associate themselves with the expressions of condolence in the Statement to the family and friends of the 84 people killed in Nice on Thursday night. Our thoughts are also very much with the 85 people—and their families and friends—who are, it is reported today, still in hospital, 18 of them in critical condition. We also express our support for the people of France at this difficult time following the third big terrorist attack there in 18 months. Unfortunately, there have also been terrorist attacks elsewhere in Europe and in many other parts of the world over the same period. That means that dealing with this apparently increasing problem requires, as the Statement said, an international solution to defeat those who attack us and our partners.
Have any British citizens, or close relatives of British citizens, been killed or injured in the attack and, if so, how many? What specific assistance has been offered to either them or their families? Is any new or additional advice being offered to British nationals travelling to France, or thinking of travelling to France, in the light of this third attack in some 18 months? The Tunisian delivery driver who carried out the mass killings held, as I understand it, a French residency permit, which once again brings it home to us that terrorist attacks are not necessarily carried out by people who move into a country and then shortly afterwards commit the atrocity.
We regularly, and quite rightly, express our appreciation of the work of our police, security and intelligence services in protecting us, and we reiterate that appreciation today. However, in the light of what is said in the Statement, are the Government saying that an attack of the kind we have seen in Nice, with a truck being driven at speed and for a considerable distance into the large crowds who had congregated in significant numbers to celebrate an important national day, could not happen here because our policing and security arrangements would not have allowed a truck travelling at speed, driven by an armed individual or individuals, such access to a large crowd?
Can the Minister say whether the Government and our police and security services have learned any lessons from this terrible incident in Nice, without necessarily indicating exactly what those lessons might be?
The French Interior Minister has been quoted in the press this morning as calling for young volunteers to join France’s security service reserves. Apparently, the reserve force is made up of 12,000 volunteers aged between 17 and 30. The best way to make the use of such a large force unnecessary is to prevent terrorist attacks happening in the first place, but are we in a position to strengthen our police and security services at short notice, should it ever, unfortunately, become necessary to do so?
Finally, we have recently seen a significant increase in hate crimes in this country following the EU referendum and its outcome—an increase which the Prevent programme does not address. Do the Government regard this sudden rise in such crimes as potentially increasing the threat of a terrorist attack in this country, or is it their view that the recent increase in hate crime will have no impact or implications in this regard?
Lord Paddick (LD)
My Lords, I, too, thank the Minister for repeating the Statement and congratulate her on her new appointment, which I personally warmly welcome. I say “personally” because I am sure she will be a formidable adversary, but I welcome her on a personal level. I add our condolences from these Benches to all those affected by the horrific events in Nice—a truly horrifying massacre of innocent people.
As a result of my research on the Investigatory Powers Bill, I have been privileged to visit the headquarters of MI6 and GCHQ in recent months, and have been astounded by what those services are capable of and the work that they do. They deserve the highest praise. I know from personal experience in the police service of the expertise that exists in terms of policing events involving public order where large numbers of people gather. I am greatly reassured by the combination of those two bodies in the UK. Can the Minister comment on what appears to be a worrying trend that, far from being devout religious individuals holding extreme religious views, the people involved in these sorts of attacks are socially excluded, vulnerable petty criminals influenced by those advocating violent extremism based on a grotesque distortion of true Islam? I want to make an important distinction: they are being influenced by violent extremism, which should be seen as distinct from simply extremism, which the Statement mentioned.
Whether terrorist outrages are carefully pre-planned events, planned and co-ordinated by Daesh from Syria, or the actions of lone wolves inspired by Daesh, preventing them effectively depends on the sharing of intelligence across international boundaries. We need to know where to concentrate our limited resources, based on that intelligence. Can the Minister reassure the House that saving human lives will be placed above Brexit politics, and that the new Foreign Secretary is urgently acting to preserve and enhance links with our European Union partners so that effective counterterrorism co-operation improves rather than declines as a result of the UK leaving the European Union?
Baroness Williams of Trafford
My Lords, I thank noble Lords for their contributions. The noble Lord, Lord Rosser, asked how many British citizens were victims of this attack. It is too early to say, but when we do have that information I am sure it will be shared with noble Lords across the House. He also asked about British citizens living here, or in France, being worried. The FCO has information on its website which is regularly and frequently updated. Citizens can contact the consulate, either at home or abroad, for updated advice about whether to travel or to find out whether their loved ones have been involved in this atrocity. The noble Lord talked about the lessons learned from Nice. He makes a very valid point. A COBRA meeting was held on Friday; we are always learning lessons and updating security to do things better. I am proud of the work that we have done in collaboration with the French authorities since this terrible attack. The noble Lord asked about strengthening funding for the security and intelligence services. We will be putting an extra £2.5 billion into them.
The noble Lord also asked about hate crimes increasing—they have. They increased after Paris last year and they increased after the EU referendum. I would not be surprised if another incident did not trigger another spike in hate crimes. In my other job, I talked about how communities have been quite resilient and come together since the Brexit vote. The Polish community certainly felt very strongly that the community around it was very much its friend. The community had come together to comfort and help each other in the wake of these events which were caused by a few criminals. That is what they are—criminals—and, as the noble Lord, Lord Paddick, said, they are extreme, violent people. We need to think about how our communities build up that resilience and to build on the cohesion work we have done to ensure that if anything else threatens us we are resilient to attacks and hate crime.
The noble Lord, Lord Paddick, is absolutely right that the individuals who commit these crimes are not originally motivated by religion. They are isolated, bitter individuals who use some of the online forums that are so accessible and encouraging to them to promote, in the case of Nice, an extreme act of violence. Of course we do not know what has motivated this individual but I am sure that we will soon find out. The noble Lord also made a very good point about saving human lives being above Brexit. We have always worked with our neighbours in France, including before we even had a European Union. We will continue to collaborate with them, as we have done so effectively over the last few days.
Orgreave: Inquiry
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Lord Keen of Elie
It is not a case of the Government delaying coming to a conclusion. As I indicated in an earlier answer, the IPCC has specifically pointed out that a decision on an inquiry at this stage could cross over into further investigations into potential criminal prosecutions. With regard to the disclosure of the unredacted report by a newspaper on 4 May 2016, the entire unredacted report was not disclosed. However, that which was disclosed did show a number of senior officers acting in common in regard to Orgreave and Hillsborough; that is correct. As regards the observations that have been made by the temporary chief constable and the MPs, I agree that those observations were made.
Lord Paddick (LD)
My Lords, does the noble and learned Lord agree that an investigation similar to that conducted by the Hillsborough Independent Panel might be the way forward?
Lord Keen of Elie
My Lords, that will be a matter for the new Home Secretary.
Investigatory Powers Bill
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Lord Paddick
“Tests for the intrusion of privacy
In making decisions and taking actions under this Act a public authority must have regard to the following—(a) the rule of law,(b) necessity,(c) proportionality,(d) the need for restraint,(e) the need for effective oversight,(f) recognition of necessary secrecy,(g) the principle of minimal secrecy,(h) the need for transparency,(i) legislative clarity, and(j) multilateral collaboration.”
Lord Paddick (LD)
My Lords, my noble friend Lady Hamwee and I have put our names to Amendments 1 and 2. Parliament’s Intelligence and Security Committee have said that privacy should be at the heart of the Bill. Although the Government have made some attempt to put an overriding privacy clause at the beginning of the Bill, we feel that that does not go far enough. The noble and learned Lord, Lord Keen of Elie—in a letter to the noble Lord, Lord Rooker, dated 8 July—spells out the importance of the 10 tests for the intrusion of privacy which the RUSI panel that looked into investigatory powers came up with. Amendment 1 attempts to put those 10 tests for the intrusion of privacy in the Bill.
Although one might consider some of the principles to be obvious, such as “rule of law”, “necessity” and “proportionality”, there are other important elements of the 10 tests—in particular, “restraint”, as it should never become routine for the state to intrude on the lives of its citizens; “transparency”, as it must be evident how the law applies to the citizen if the rule of law is to be upheld; and “multilateral collaboration”, as government policy on intrusion should be capable of being harmonised with that of like-minded open and democratic Governments.
In the letter to which I have referred from the noble and learned Lord, the Government set out what I consider to be a rather optimistic view of how the Bill complies with the 10 tests. We will see, over the course of Committee, how we on these Benches do not share the noble and learned Lord’s optimism about how the Bill actually complies with them. As I said just now, we believe that the privacy aspects of the Bill need to be enhanced, in particular to increase the regard that people have to the Human Rights Act in implementing the Bill.
Section 46 of the Counter-Terrorism and Security Act 2015 provides for a Privacy and Civil Liberties Board. This is already in legislation—it just has not been enacted by the Government—and we believe that it could also strengthen the privacy elements. We support the additional safeguards for confidential journalistic sources and material. We are concerned about how wide so-called targeted interception warrants can be, going beyond simply named individuals to organisations and even groups of organisations.
We are also concerned about the whole issue of the so-called double lock. Why, in non-contentious law enforcement cases, does there need to be any involvement by the Secretary of State at all? Why is there inconsistency between intelligence services’ equipment interference warrants, where there is a double lock, and law enforcement equipment interference warrants, where the Secretary of State is not involved at all, despite equipment interference being more intrusive than interception? We are concerned about how judicial review principles, which judicial commissioners are supposed to apply to decisions of the Secretary of State, can apply if only one side of the argument is present, because the applicant for the warrant puts forward the case for the issuing of the warrant and there is nobody arguing against it.
There is judicial authorisation of interception warrants in all “Five Eyes” countries and international co-operation—as I have just indicated from the 10 principles —is extremely and increasingly important. To ensure that there is co-operation between the UK and other countries, particularly the United States, proper judicial authorisation, not simply judicial review, should be an important part of the Bill.
Lord Brown of Eaton-under-Heywood (CB)
My Lords, I am grateful to the noble Lord for giving way. I ask whether I have completely lost the plot here. I thought this was the first group of amendments, Amendments 1, 2 and 3. I do not understand why we are ranging over the entire Bill.
Lord Paddick
My Lords, what I am trying to demonstrate here is to counter what the noble and learned Lord, Lord Keen, said in his letter, that the Bill complied with the 10 tests put forward by RUSI. I am simply indicating where we feel that the Bill is deficient.
Moving on, we share others’ concerns that the technical capability notices and national security notices, only enforceable against UK companies, could make British products and systems more vulnerable to illegal hacking. There could be a considerable competitive disadvantage to UK companies as a result.
We are concerned about the operation of the filter. As I said at Second Reading, it creates a virtual database, and the noble and learned Lord in his summing up—
Lord West of Spithead (Lab)
My Lords, I share the view of the noble and learned Lord. I am a simple sailor, and I am totally confused now as to exactly what the noble Lord is trying to do. Are we trying to insert an amendment, or are we having another Second Reading? The noble Lord is continually saying, “As I said at Second Reading”, but we do not do Second Reading a second time.
Lord Paddick
My Lords, I am trying to demonstrate—and in many cases, obviously, not succeeding—why the 10 tests as set out in the report are necessary, and how the Bill fails to meet those 10 tests.
As I was saying, on the filter, the noble and learned Lord, Lord Keen, in his summing up said that it did not create a database. I said in my Second Reading speech that it creates a virtual database. No doubt, we can discuss that issue when we come to it.
Overall, we feel that having the 10 tests as part of the Bill is an important safeguard for the privacy of individuals, and would place limitations on what the Government can do. I beg to move.
Lord Janvrin (CB)
I speak to Amendment 3, in my name, and note my interest as a member of the Intelligence and Security Committee. A lot of the points made by the committee have already been taken on board by the Government following discussions and scrutiny in another place.
In the committee’s report on the draft Bill, we recommended that privacy protections should form the backbone of the legislation around which the exceptional powers are then built. This is absolutely crucial to the whole purpose of the Bill. Following scrutiny in another place, the Bill introduced in this House now has in Clause 2 provisions on “General duties in relation to privacy”. I hope that your Lordships welcome the inclusion of the new clause, which crucially includes the requirement that intrusive powers should be used only when the information being sought cannot be obtained by other less intrusive means.
However, the Bill still lacks a clear statement at the beginning about the right to privacy. This is the purpose of the amendment in this group in my name. We propose inserting a new subsection at the very start of the Bill, which places an individual’s right to privacy at the forefront of the legislation. I note that this amendment is similar to Amendment 2 in the name of the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee, which attempts to achieve something similar, although I suggest that the amendment in my name is the more straightforward of the two options before us.
Finally, I think that this short but necessary amendment is compatible with the more detailed provisions already existing in Clauses 1 and 2.
Lord Campbell of Pittenweem (LD)
My Lords, before my noble friend responds, having heard the discussion across the Chamber, I am satisfied by the explanation offered by the noble Earl. For this reason, respectfully, to be overspecific about principles that support the whole concept of privacy runs the risk of inclusio unius est exclusio alterius: that is, by being too specific, you prevent the opportunity to look at wider considerations. That may be rather a technical view to take at this stage but it also underlines the points that have been made already about the general thrust of this legislation, which has innovated to an extent that would not have been thought possible even five years ago.
Lord Paddick
My Lords, I am very grateful for the comments from noble Lords from around the Chamber, and particularly to the Minister. As we go through the Bill, we will, at each power, indicate how we believe the provisions do not match the 10 tests in the way the noble and learned Lord set out in his letter. However, we can leave that until we reach those sections of the Bill. The noble and learned Lord, Lord Brown of Eaton-under-Heywood, indicated that, of the three amendments, Amendment 3 in the name of the noble Lord, Lord Janvrin, would be the best to include. If it was necessary, we would be very happy to support Amendment 3.
If I may, I will speak––with some trepidation––in defence of my noble friend Lord Strasburger. There are people in the UK who have the sorts of concerns that he has articulated and it is very important that, during our discussions in the House, we seek every opportunity to reassure people who hold those views, however outlandish some Members of the Committee might consider them. At this stage, however, I beg leave to withdraw the amendment.
Lord Strasburger
My Lords, Amendment 17 in my name would provide for a statutory public interest defence for the offence set out in Clause 3. Clause 3 effectively reproduces the RIPA Section 1 criminal offence of phone hacking, of which the Prime Minister’s director of communications, Andy Coulson—among others—was convicted when he was editor of the News of the World.
I invite the House to support the amendment in this group proposed by the noble Baroness, Lady Hollins, which provides access to justice for victims of phone hacking and incentivises the adoption of the Leveson reforms which the Government have stalled on. But there is another matter which must be considered and which my amendment addresses—the absence of a statutory public interest defence for voicemail interception or any other type of breach of Clause 3.
Let us consider a situation where suspected serious wrongdoing is being investigated by a journalist or NGO and that journalist or NGO has no faith that the police will adequately investigate the matter; for example, a case of police corruption or, more practically, a case where the police have failed to investigate a case such as that of Jimmy Savile. In such circumstances, if the journalist or NGO intercepted voicemail messages which showed the corruption or illegality, and then exposed it, that person should have a defence that he or she can rely on.
Amendment 17 provides for this. The CPS can of course choose not to prosecute under the public interest arm of the “threshold test for prosecutors”, but that is not good enough. Prosecutors make their decisions on the public interest element after reviewing a file of evidence produced for them by the police and after an investigation which addresses the separate question of whether there is enough evidence to pass the first, evidential arm of the threshold test. Such a police investigation could last for months, if not years, and will involve interviews under caution, search warrants and perhaps arrest. That is a real disincentive to investigative journalism.
If there is a statutory public interest defence, the police will be able to see at an early stage that however much evidence they gather to prove that the act took place, or indeed even in the case of an admission, they will not be able to defeat the defence if the facts are clearly made out and their investigations will be curtailed. The benefit of a public interest defence therefore is not so much that it will allow investigators in the public interest to be acquitted at trial, or even that the CPS will choose not to prosecute on the evidential arm before even having to consider the public interest, but that the police will abandon investigations where the public defence is clearly made out in the facts. That will have the benefit of removing the chilling effect of potential police investigations and possible prosecution from investigative journalists who we rely on on these occasions to root out wrongdoing. Perhaps I may invite the Minister to engage in a constructive discussion about whether a narrow but valuable defence can be crafted. After all, noble Lords will be aware that there is a statutory public interest defence in Section 55 of the Data Protection Act, a provision that in Clause 1 of this Bill the Government are relying on as adequately protecting our privacy.
The investigative journalist Nick Davies of the Guardian exposed the hacking scandal. Had he had to intercept voicemail messages between Andy Coulson and one of the several convicted news editors who served under him in order to bring the story to our attention, that would have been in the public interest. It would not have been right that in the absence of a public interest defence which the police knew was valid, he had been arrested and questioned by the very police force whose failures he uncovered. That is why this amendment is so important and I commend it to your Lordships.
Lord Paddick
My Lords, my noble friend Lady Hamwee and I have Amendments 16, 20, 21, 22 and 84 in this group.
Amendment 16 concerns the offence of unlawful interception, but in the Bill as drafted that applies only to public telecommunications systems, private telecommunications systems and public postal services. It does not apply to private postal services. Examples of those could be the postal services used by the legal profession such as Legal Post and DX. Can the Minister inform the Committee why private postal services are not included in that provision?
Amendment 20 relates to the provision that,
“Conduct which has lawful authority for the purposes of this Act … is to be treated as lawful for all other purposes”.
Presumably, this provision is to avoid the problem we have had in the past where, while interception or equipment interference was allowed under one piece of legislation, it was an offence under the Computer Misuse Act 1990. Presumably, that is why this provision has been included, but surely it should apply to existing legislation—and it should state that it should apply to existing legislation—not to legislation in the future.
Amendment 21 is again about any other conduct under the Bill being treated,
“as lawful for all purposes”.
Surely this should not be as broad as that. It should be restricted to what is lawful only for the purposes of this Bill.
Amendment 22 concerns the service of monetary penalty notices. Paragraph 4(4)(g) of Schedule 1 allows for an oral hearing before the commissioner, but the amendment would add that the person who applies for and is granted an oral hearing before the commissioner can be legally represented.
Returning to something that I referred to in my opening remarks, Amendment 84 is about restrictions on unauthorised disclosures which as written would prevent the Secretary of State from disclosing the existence and contents of a warrant. The amendment would allow the Secretary of State to disclose the existence and details of a warrant if she felt it was necessary in order for Parliament to carry out its functions. As I mentioned before, I do not see how the argument can be made that the Secretary of State should be involved in the authorising of warrants because she can be held to account, when she is not able, under the terms of the Bill as drafted, even to admit that such a warrant exists.
Baroness Hollins (CB)
My Lords, I gave evidence to the Leveson inquiry about the press intrusion suffered by my family and I am going to speak to Amendments 18 and 246 in my name.
In Section 1(3) of the Regulation of Investigatory Powers Act 2000, there was a statutory tort for interception of communications. This has not been recodified in the Bill, presumably because the common law has proven to be a sufficient basis for legal actions against those who hack communications. The effect of subsection (1) in my Amendment 18 is to reinstate that tort. The effect of subsections (2) to (5) in my amendment are then to provide access to justice for victims of phone hacking—the criminal offence recodified in subsection (1). It will enable them to sue, without cost risk to themselves, those newspapers which have invaded their privacy but are refusing to guarantee low-cost arbitration.
I hope that this amendment will encourage the Government to bring into effect law already passed by this House and the House of Commons in Section 40 of the Crime and Courts Act 2013. Amendment 18 replicates Section 40 of that Act in a limited way for claims made by victims of the interception of private communications—phone hacking—because only these claims are in the scope of this Bill. The consequential amendment to Clause 243 would have the effect of automatically commencing the provision immediately after Royal Assent to prevent government non-commencement, as has happened with Section 40. Of course, if the Government commence Section 40 forthwith, this amendment will be withdrawn. If the Government do not, this amendment would have the same effect as that law, at least for victims of phone hacking.
I am very grateful to noble Lords from across the House who are supporting these amendments, and for briefings and drafting assistance from Hacked Off, through which I have been introduced to many other victims of press abuse. I remind noble Lords that Lord Justice Leveson’s inquiry found that voluntary newspaper self-regulation by the Press Complaints Commission had failed appallingly and urged Parliament and the Government to ensure that any new regulator set up by the press would be accredited by an independent recognition panel to assure its independence and effectiveness. The idea was, and Parliament agreed, that the newspapers would have to join such a regulator and not be allowed to set up another version of the PCC. The terms of Section 40 of the Crime and Courts Act were agreed, somewhat reluctantly, by the Government to avoid defeat in both Houses in March 2013.
Section 40 was part of the cross-party agreement which included the royal charter, and was signed by the Prime Minister and the leaders of the Labour and Liberal Democrat parties. As a result of this agreement, the noble Lord, Lord Skidelsky, withdrew his amendment to the Enterprise Bill in March 2013 which would have implemented the Leveson-recommended recognition panel by statute. Ben Bradshaw MP and Simon Hughes MP similarly withdrew their amendments to the Crime and Courts Bill, which would have brought in a stronger and faster version of Section 40.
Section 40 provides protection from court costs in libel, harassment and privacy cases involving newspapers and has three policy aims. The first is to guarantee access to justice for claimants in libel and privacy cases against non-Leveson-regulated newspapers. The second is to protect investigative and public interest journalism at newspapers from court costs and thus from so-called “libel chill”. The third incentivises non-Leveson-regulated newspapers to join a Leveson-style self-regulator which has been accredited as independent and effective.
Section 40 would have to be commenced in the usual way provided in all Bills,
“on a day appointed by the Secretary of State”.
It was agreed, cross-party, that commencement of Section 40 would be well before the exemplary damages provision in Sections 34 to 39. Those sections, on exemplary damages, were to come into effect one year after the royal charter Press Recognition Panel had been set up, which should have been in November last year. This makes Section 40 well overdue. Ministers made multiple explicit commitments on the Floor of both Houses to bring in Section 40—I have a list of 25 such commitments. However, last October the Secretary of State announced at a meeting of newspaper editors, that he was “not minded” to commence the statute. Since then, despite being asked on a number of occasions, the Secretary of State has apparently failed to point to any precedent for such non-commencement of part of an Act of Parliament.
Lord Keen of Elie
I am obliged to the noble Baroness. It was raised by Scottish colleagues—Scottish colleagues with whom I do not agree—but I am quite happy to undertake to write to her. I should say it was raised by the Scottish Law Society, not the Scottish Bar.
Amendments 18 and 246 were spoken to very clearly by the noble Baronesses, Lady Hollins and Lady O’Neill, and the noble Lords, Lord Lipsey and Lord Oates. While I am quite happy to write on the matter of press regulation and the commencement of Section 40, press regulation is not the purpose of the Bill. I have to make that clear in this context because while I understand the points that are being made, they do not arise directly in the context of these amendments.
Moreover, the relevant amendments are not considered necessary. There is already a criminal offence where unlawful interception takes place on a public or private telecommunications system or a public postal service. There is also a cause of action which applies in a limited set of circumstances, where the criminal offence does not apply. Where there is an allegation that unlawful interception has taken place on behalf of a public authority, a person may seek recourse through the Investigatory Powers Tribunal, which has the power to provide redress, including awarding damages.
Where the conduct relates to an individual who does not belong to a public authority, there are other causes of action which may be applicable. I may have misunderstood the noble Baroness that the tort which currently exists in the Regulation of Investigatory Powers Act 2000—allowing an individual to take action against a person who has the right to control the use or operation of a private telecommunications system and who intercepts a communication on that system—has been added to the Bill by way of Clause 8, and that happened after the debate on the Bill in the other place. In these circumstances, we are not prepared to accept the amendments.
Turning to Amendments 20 and 21, Clauses 6(2) and 6(3) are important because they provide that where a public authority, or a telecommunications operator, is acting in accordance with a warrant properly obtained under the Bill, or the provisions of Clauses 42 to 50, they can be sure that they are not breaking any other law or required to obtain additional authorisations. This legal certainty is vital for those engaged in the essential work of keeping us safe.
The first amendment seeks to provide that future legislation could make that conduct unlawful for certain purposes. I understand the principle the noble Lords seek to achieve but I do not believe it is necessary. Nothing in the Bill prevents Parliament amending the legislation at a future date to make any of the activity unlawful or provide that some additional authorisation is required.
The second amendment seeks to amend subsection (3). The purpose of this subsection is to make clear that conduct undertaken in accordance with a warrant or which is authorised by any of Clauses 42 to 50 is to be treated as lawful. This is vital in providing companies with reassurance that by complying with a warrant they will not be acting unlawfully in relation to their regulatory obligations or other legislation. The effect of this amendment would be to provide that the conduct is lawful only for the purposes of the Bill. My concern, were we to accept this amendment, would be that we would remove the legal certainty that the companies and agencies rely on to do their job and to keep us safe. We therefore do not accept the amendment.
Amendment 84 relates to exceptions from the duty not to make unauthorised disclosures about warrants. It is absolutely right that the Secretary of State should be accountable to Parliament, even for the most sensitive decisions concerning the most sensitive powers. But when it comes to such matters, which necessarily must remain secret, it is absolutely right that Parliament provides a mechanism for the Secretary of State to be held to account, while at the same time doing nothing to jeopardise national security. That is the very reason for the existence of the Intelligence and Security Committee of Parliament.
To put beyond doubt that the Secretary of State is, and will continue to be, accountable to Parliament through the ISC for decisions relating to warrants, the Government amended Clause 54 and Clause 123 to make clear that the Secretary of State may disclose matters relating to warrants to the ISC. This will allow the ISC to carry out its statutory functions in holding the Government to account, while maintaining our security. It is right for the ISC to carry out this function and it would not be appropriate for disclosure to be made to Parliament as a whole. To do so would breach the long-standing principle of successive Governments to neither confirm nor deny matters relating to intelligence and security and could risk jeopardising our national security. Accordingly, I invite the noble Lords not to press their amendments.
Lord Paddick
Can the Minister clarify whether it is not then an offence for the Secretary of State to disclose the existence or content of a warrant to the ISC? That is not our understanding of the Bill.
Lord Keen of Elie
It may be then that we have to agree to disagree. It is my understanding of the Bill and it is our position that the Secretary of State is entitled to make disclosure to the ISC for the purposes of answering to the ISC in this context.