Policing and Crime Bill

Lord Rosser Excerpts

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

Moved by

[Lord Rosser]

121: After Clause 11, insert the following new Clause—
“Statutory duty on flooding
The Secretary of State shall make provision for the fire and rescue services in England to lead and co-ordinate the emergency service response to—(a) rescue people trapped, or likely to become trapped, by water; and(b) protect people from serious harm, in the event of serious flooding.”

[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.

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[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, like the noble Lord, Lord Rosser, I recognise the sterling work and professionalism of the fire and rescue authorities in providing a brilliant service to the various communities during the significant number of flooding incidents, especially in December and January. The noble Lord talked about the Greater Manchester FRA, to which I pay full tribute. When I visited some of the affected areas, such as Rochdale, Salford and Bury over the new-year period, there was clearly effort from not just the community and police but the fire and rescue service. It provided fantastic input into what was a very successful operation in clearing up various areas.

It is clearly important that a timely and co-ordinated response is provided at these critical incidents. A number of agencies are involved generally in rescuing people from floods, particularly in coastal areas, including the Royal National Lifeboat Institution and the Maritime and Coastguard Agency, as well as fire and rescue authorities and the local charitable organisations that play a vital part in many communities. However, direction rests with local resilience forums for local responders to work out the arrangements that work best in their area. Often, this will be the fire and rescue authority but there may be many valid reasons—as the noble Lord, Lord Paddick, outlined—why they might choose a different responder in different circumstances and if that works locally. We do not want to reduce this flexibility with a one-size-fits-all approach as there may be good reasons why, in some areas and on some occasions, it makes more sense for a different responder to take the lead. The fact that two noble Lords have slightly different views on how that might be is proof of that.

I will give an example. During and in the direct aftermath of serious flooding, it has been vital for other agencies including voluntary groups to provide services to protect people from serious harm and to distribute clean water to those affected. Depending on the extent of the incident, it may be necessary for the Royal Air Force to take a major role, as with the flooding in 2007 when it deployed Sea King helicopters from as far afield as Cornwall, Anglesey and Yorkshire for the rescue of 120 people. There are advantages to a permissive, multi-agency regime where responders have broad powers and local discretion rather than a prescriptive duty for flooding or indeed any other type of critical incident we can identify. There is no question that fire and rescue authorities have the power they need to respond to floods. They have responded to all major flooding events and usually provide the most resources.

I welcome the scrutiny that this amendment provided of the arrangements for the emergency services’ response to flooding. To answer the brief question from the noble Earl, Lord Erroll, in terms of something being on a statutory footing, yes, it would necessitate a funding stream. However, for the reasons I have given and from the experiences I have had, I believe that the existing regime with broad, permissive powers gives both fire and rescue authorities and local resilience forums the flexibility they all need. On that note, I ask the noble Lord to withdraw his amendment.

[Lord Rosser]

I thank noble Lords who contributed to this short debate, and the Minister for her response. I think she said that the fire and rescue services did respond to all major flooding events, which is certainly my understanding of the situation.

It seems a little odd that even if there may be objections to the precise wording of our amendment, there is no willingness to write in a statutory duty and function in respect of flooding for our fire and rescue services. We know that they play a key role. If I understood the Minister correctly she indicated that, if this was on a statutory footing, the fire and rescue services would of course have to be provided with the resources to carry out that activity. Bearing in mind the issues that fire and rescue services face over resources, one has a suspicion that one reason for the reluctance of government to go down this road may be that it would require that commitment of resources, even though the Government have acknowledged that the fire and rescue services do respond to all major flooding events. Obviously, I am disappointed with the Government’s reply but at this stage I beg leave to withdraw the amendment.

Amendment 121 withdrawn.

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Moved by

[Lord Rosser]

131: After Clause 26, insert the following new Clause—
“Police complaints and the media
(1) Subject to subsection (3), the Prime Minister must commission an independent inquiry into the operation of the police complaints system in respect of relationships between the police and media.(2) The matters that are the subject of the inquiry shall include, but shall not be limited to—(a) how adequately police forces investigate complaints about police officers dealing with people working within, or connected to, media organisations;(b) the thoroughness of any reviews by police forces into complaints of the type referred to in paragraph (a);(c) in those cases where a complaint of the type referred to in paragraph (a) led to a criminal investigation, the conduct of prosecuting authorities in investigating the allegation;(d) whether any police officers took illegal payment to suppress investigations into complaints about relationships between police officers and people working within, or connected to, media organisations;(e) the implications of paragraphs (a) to (d) for the relationships between media organisations and the police, prosecuting authorities, and relevant regulatory bodies, and recommended actions.(3) The inquiry may only start once the Secretary of State is satisfied that it would not prejudice any relevant ongoing legal cases.”

[Lord Rosser]

My Lords, the amendment would provide for the Prime Minister to commission an independent inquiry into the operation of the police complaints system in respect of relationships between the police and media. It also states that the inquiry may start only once the Secretary of State is satisfied that it would not prejudice any relevant ongoing legal cases.

The objective of the proposed new clause set out in the amendment is to seek to hold the Government to their promise to the victims of press intrusion to hold a second stage of the Leveson inquiry to look at the culture of relations between the police and the press. In November 2012, the then Conservative Prime Minister reminded the victims of press intrusion that when he set up the Leveson inquiry he had also said there would be a second part to investigate wrongdoing in the press and the police, and that his Government remained committed to the inquiry as it was then established. He then went on to say:

“It is right that it should go ahead, and that is fully our intention”.—[Official Report, Commons, 29/11/12; col. 458.]

However, real doubts about the Government’s willingness to honour that promise have arisen. Ministers have subsequently used language that suggests it is no longer a question of when the inquiry will go ahead, but rather of whether it will go ahead.

Police-press relations is a significant area still to be addressed. We have yet to start to make changes to properly put right, once and for all, the kind of wrongs that have now come to light, for example, following the Hillsborough tragedy. Briefings by the police in the immediate aftermath of the tragedy had a profound adverse impact, not just on the families who had lost loved ones, but on thousands who had been at the match and returned home in a state of some trauma, only to read a few days later that the police were blaming them for the deaths of their friends and family. It surely cannot be right that a police force is able, unattributably or otherwise, to brief damning and unproven information to a newspaper. The extent and reasons for such practices, both previously and more recently, must be investigated independently and openly and those practices brought to an end.

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[Baroness Williams of Trafford]

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

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

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

[Lord Rosser]

The Minister referred to subsection (3) in the amendment, which states:

“The inquiry may only start once the Secretary of State is satisfied that it would not prejudice any relevant ongoing legal cases”.

She also made reference to Leveson 2. Is it the Government’s position that once ongoing cases have been determined, the second stage of Leveson will take place, or—as I think the Minister said on behalf of the Government—that once outstanding cases have been resolved, the Government will only consider whether to proceed with the second stage of Leveson? Can the Minister clarify what she said? Are the Government saying that once outstanding cases have been resolved, Leveson 2 will take place, or is the Minister simply confirming what now appears to be the Government’s stance—unlike the promise that was given—that they will only consider whether to move to the second stage of Leveson?

[Baroness Williams of Trafford]

It is the latter. We will make a decision on Leveson 2 once the outstanding cases have been concluded.

[Lord Rosser]

Can the Minister say why the position has changed from the very clear and specific commitment given by the previous Prime Minister that the second stage of Leveson would take place?

[Baroness Williams of Trafford]

My Lords, both the current Prime Minister and the previous Prime Minister were very clear that all the cases of Leveson 1 should be concluded before Leveson 2 is considered.

[Lord Rosser]

Is the Minister saying on behalf of the Government that the previous Prime Minister did not give a commitment that the second stage of Leveson would take place? Is she really saying on behalf of the Government that the previous Prime Minister gave a commitment only to consider whether the second stage of Leveson should take place?

[Baroness Williams of Trafford]

My Lords, I would have to look at the exact words that the previous Prime Minister used before I contradicted the noble Lord. I certainly do not want to contradict the noble Lord. In terms of the process, both the current Prime Minister and the previous Prime Minister were clear that Leveson 2 could not proceed until Leveson 1 was concluded.

[Lord Rosser]

I find the Government’s response most unsatisfactory but at least the Minister has confirmed that there has been a complete shift in the Government’s stance. I will say what I think: the Government have now gone back on the very clear undertaking that was given by the previous Prime Minister that the second stage of Leveson would take place.

[Baroness Williams of Trafford]

My Lords, I hope I did not make it clear that we have gone back on the decision but we will make a decision on Leveson 2 once those outstanding cases have been concluded, which is rather different from going back on what was said.

[Lord Rosser]

The promise that was given was that there would be a second stage of Leveson. If the Government are now saying that once the outstanding cases are concluded they will only consider whether they should move to a second stage of Leveson, that is going back on the promise that was given. It is no longer specific. Does the Minister not agree?

[Baroness Williams of Trafford]

I think we are going to have to agree to differ that we have not gone back but we will consider it once those cases have concluded.

[Lord Rosser]

I accept that the Committee will not want me to continue with an argument over the difference in wording, but I will simply restate my stance that for the Government now to say that they will only be considering a second stage of Leveson is not what the previous Prime Minister said in the promise he gave to the victims of press intrusion. I strongly regret the answer that we have received from the Government today, but nevertheless beg leave to withdraw the amendment.

Amendment 131 withdrawn.

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Moved by

[Lord Rosser]

154: Clause 32, page 51, line 32, after “the” insert “Independent”

[Lord Rosser]

Clause 32 provides for the current Independent Police Complaints Commission to continue in existence but to be renamed the Office for Police Conduct. The effect of this group of amendments would be to retain the word “Independent” in the title of the renamed organisation. On the face of it, this may seem a somewhat minor point. However, it is not, as the name that is chosen for an organisation can significantly determine how it is perceived by those who come into contact with it and by the wider public.

The Independent Police Complaints Commission has had the word “Independent” in its title for, I believe, some 14 years, and it sends an important message: it is meant to be independent. Removing it from the new name of the organisation will also be regarded, by the public generally but particularly by those with whom it has specific dealings, as sending a message about its status, and it is a message that is unlikely to be helpful—namely, that it is no longer meant to be independent, including in its relationship with the police.

Currently, the word “Police” is in the title, but so too is “Independent”. In future, under the provisions of the Bill only the word “Police” will be seen in the title by those who need to deal with the renamed organisation. As it is, at times there is already an issue of some public mistrust over the perception of the police investigating the police, and the proposed name change will certainly not help in that regard.

What are we to make of the title, Office for Police Conduct? Would not the natural assumption be that this was some police body, part of the organisation, accountable to the organisation and certainly not separate and independent from the police service? How will that assist in establishing the trust or securing the confidence of those with whom the organisation comes into contact? Not all of them will necessarily at the time of that contact have the highest regard for the police—the obvious example being a bereaved family in the early days of an investigation by the current IPCC.

I hope that the Government will reflect seriously on this point and on the significance of the removal of the word “Independent” from the title of the renamed organisation, and will accept the amendment. I beg to move.

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[Baroness Williams of Trafford]

I thank the noble Lords who have spoken so clearly on this amendment, particularly the noble Lord, Lord Bach. I will outline why the Government want to change the name. The aim is to ensure that the organisation has a corporate structure and governance arrangements that enable it to carry out efficiently and effectively its expanded role in the police complaints and discipline systems.

My noble friend Lord Attlee pointed out that not every independent body has the word “independent” in its title—he mentioned Ofgem and Ofcom, and Ofsted is another example.

I understand that the body’s constitution alone does not guarantee public trust in its independence, but neither necessarily does incorporating the word “independent” in its title. That said, I understand the contrary argument, put forward by the noble Lords, Lord Rosser and Lord Condon, that adding the word “independent” to the name might change some people’s perceptions and encourage them to come forward if they have concerns about police conduct. Therefore, although I remain to be persuaded of the case for the amendments, I will reflect between now and Report on the points that noble Lords made so well in this short debate. On that basis, I invite the noble Lord to withdraw his amendment.

[Lord Rosser]

I thank the Minister for her response and thank all noble Lords who participated in this short debate. I note that the Minister, on behalf of the Government, is not committing herself to agree to the change, but she agreed to reflect on the matter and on what has been said this afternoon and perhaps come back to it on Report. I thank her for that and beg leave to withdraw the amendment.

Amendment 154 withdrawn.

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Moved by

[Lord Rosser]

157: Clause 32, page 52, line 4, at end insert “, who must include at least four Regional Directors and one National Director for Wales, to be appointed by the Director General”

[Lord Rosser]

The effect of these amendments is to give the director-general of the Office for Police Conduct a power to create regional directors, including a national director for Wales, and that as a minimum four of the regional director positions should be excluded from having a former police background, with a similar bar on the national director for Wales.

The Bill provides a specific bar on the director-general having previously worked for the police and creates a power for him or her to apply that bar to certain specified roles. Currently, all the IPCC’s commissioners—who are both its governing board and its senior public-facing decision-makers—can never have worked for the police. That has delivered a diverse group of people with senior experience in other fields in those roles to complement the policing experience of other staff and senior managers. As I understand it, the IPCC’s clear view is that this should continue to be the case for those who, like commissioners, are the public face of the organisation in the regions and its senior decision-makers. Obviously, the point of tabling the amendment is to seek the reasons for the decisions the Government appear to have made on this point and which are enshrined in the Bill.

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[Lord Rosser]

Can I ask the Minister whether the Government accept that, under the Bill’s terms, as far as the public face of the organisation and its very senior decision-makers are concerned, we could end up with a situation where only one, namely the director-general, has not previously worked for the police?

[Baroness Williams of Trafford]

My Lords, I think what I outlined in my speech to noble Lords was that the director-general would need to outline how he proposes the board will work and his position in it. The Bill recognises the need for transparency, as the noble Lord pointed out. It places a requirement on the director-general to publish a statement of policy on the exercise of these particular powers of recruitment. I imagine that if he decided to have a board full of former police officers he would want to explain why, in his particular case, this was necessary.

[Baroness Hamwee]

Would the Minister accept that the bit the public will be aware of—like the change from an organisation with the term “independent” in its title—is the change from a board structure where there is a bar on all members of the board having been police officers or involved with the police service to a situation where there need not be, not the detail of the report of the director-general explaining the fine detail of their thinking? It is a much broader issue than the Government are acknowledging.

[Lord Rosser]

I thank noble Lords who have participated in the debate, and the Minister for her response setting out what the Government’s position is and the thinking behind the Government’s wording in the Bill. Issues have been highlighted in the debate about the potential implications and the extent to which one could end up in a situation where very few people indeed in the public face of the organisation and its senior decision-makers had not worked for the police, since the terms of the Bill do not preclude that happening. It precludes it only as far as the director-general is concerned.

[Baroness Williams of Trafford]

I profusely apologise for intervening, but I thought I would give the noble Lord the full information I have before me. There is a backstop power for the Secretary of State to set out in regulations restrictions on which posts can be held by former police. Perhaps that is a conversation to be had. It would be very unusual for the director-general to pack his or her board full of ex-police officers, but there is this backstop power for the Secretary of State. I apologise for intervening on the noble Lord.

[Lord Rosser]

Not at all. I am very grateful to the noble Baroness for that intervention, further clarifying the position as far as the Government are concerned. One might say that it is not entirely satisfactory that one would have to have a backstop power to prevent a situation arising where very few, if any, of those who are the public face of the organisation or its senior decision-makers are not people who have previously worked for the police. Some might feel that that should be better enshrined in the Bill itself.

Nevertheless, this short debate has highlighted quite an important issue. I hope the Government might be prepared to reflect on what has been said, and on the significance of the issue raised, in the context of the future role and perception of the Office for Police Conduct. In the meantime, I beg leave to withdraw the amendment.

Amendment 157 withdrawn.

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[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.

[Baroness Chisholm of Owlpen]

As the noble Baroness, Lady Jolly, has explained, this amendment seeks to put the service police within the remit and jurisdiction of the Independent Police Complaints Commission.

We do, of course, support the need for independent oversight and scrutiny of the Royal Navy Police, the Royal Military Police, and the Royal Air Force Police, including the key objective of having an independent mechanism to investigate complaints against them. I am also aware that Her Majesty’s Inspectorate of Constabulary has recommended that the Government should consider further whether the IPCC could be the appropriate mechanism.

The Government have given early consideration to this, including discussions with the IPCC. To bring the service police under the remit of the IPCC is potentially a major change. Although only a small number of cases may be involved, it could mark a significant shift for the IPCC far beyond its current operations in England and Wales. As the chair of the IPCC has said,

“There are inherent and significant differences between the remit and jurisdiction of the service police and those of the Home Office Police forces”.

In addition, the IPCC is currently part way through a major programme of expansion to build its capacity and capability to investigate all serious and sensitive allegations against civilian police forces. This Bill will further strengthen the IPCC’s remit and powers and, in light of its expanded role, the Bill also provides for the reform of the organisation’s corporate structure and governance to deliver a more capable and resilient organisation.

At this stage, the IPCC’s capacity for further change to its role is constrained. That is why the Government, led by the Ministry of Defence, are seeking alternative options. Recent work with the Ministry of Defence has been focused on the development of a common complaints procedure across the three service police forces. This procedure covers complaints made by serving and non-serving military personnel against a member of the service police carrying out a policing function, irrespective of location. There is now also a protocol between the service police forces to ensure that, where there may be a conflict of interest around the investigation of a complaint, one service police force may investigate another. The next phase of the Ministry of Defence’s work is to consider how best to introduce a mechanism that will provide for the independent oversight of these complaints, wherever in the world they are made.

I hope that the noble Baroness will understand that, in the light of the work being taken forward by the Ministry of Defence, and the risks that could arise if we sought to impose new responsibilities on the IPCC at a time when it is already going through a substantial reform programme, I cannot commend this amendment to the Committee. I accept, however, that the noble Baroness wants to see more progress towards finding a long-term solution to this issue. I can certainly undertake to write to the Armed Forces Minister to draw his attention to this debate, but for now I ask the noble Baroness to withdraw her amendment. Of course, I am more than happy to meet the noble Baroness.

Policing and Crime Bill

Lord Rosser Excerpts

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

Debate on whether Clause 37 should stand part of the Bill.

[Lord Rosser (Lab)]

Our key concerns about Clause 37 relate to the additional powers that could be given to police volunteers under this clause. I hope that in response the Government will set out in some detail the boundaries or limits of those powers that can be given.

Of course, the police could not do their job without a voluntary army, but a voluntary army should not do the job of the police. The Bill enables chief officers to designate a wider range of police powers to police volunteers. We are concerned that this measure may be a move by the Government to provide cut-price policing and we fundamentally oppose giving policing powers to volunteers to fill the gaps left by the drastic reduction in officer and staff numbers over the past five years. More than 40,000 policing jobs were lost between 2010 and 2015 as a result of government cuts to the police service: approximately a 30% cut in police community support officers; 20% fewer police staff jobs; and 13% fewer police officers. It is not appropriate that those people should be replaced by volunteers through the provisions in the Bill, particularly in roles that are clearly operational in nature.

As I understand it, there is a current agreement between the Home Office, the National Police Chiefs’ Council, the College of Policing and the police staff unions that police support volunteers should bring additionality to the police force, but the agreement goes on to say that they should under no circumstances replace or substitute for paid police staff.

Our police service has the power to use necessary proportionate force in appropriate circumstances. We do not want volunteers to be placed in roles that may require the use of force or restraint and which should be only for officers and members of police staff. Our police service has and needs the power to use force where necessary when carrying out its duty to protect the public. However, under our tradition of policing by consent the public also expect that there will also be accountability, proper training and high professional standards on the part of those who use force in appropriate circumstances. I suggest that those expectations can be met only by warranted police officers and, where appropriate, members of staff.

We are also concerned by the suggestion that there may be circumstances where volunteers will be placed in risky situations. Volunteers have an important role to play in supporting police, but should not place themselves in potentially dangerous situations. A police and crime commissioner for Northumbria has said:

“Rather than extending the role of volunteers, the Government needs to start funding police forces properly, to allow Chief Constables and Police & Crime Commissioners to recruit more police officers, who can go on the beat and serve local communities”.

To reiterate, we believe that the greater use of volunteers in the police service apparently envisaged under the Bill—we are not talking about special constables—is potentially dangerous, particularly in the context of the continuing cuts to police budgets. This year police services in England and Wales are facing real-terms cuts to their budgets which will not be backfilled by the local precept.

We believe it is dangerous to impose those cuts in the context of the provisions of the Bill, with the Government not saying precisely what the boundaries and limits are of what volunteers can and cannot do under the terms of the Bill. I hope that in responding the Government will now seek to remedy that and that the response will not reveal—as, going by the previous debate, I fear it will—that volunteers, rather than just bringing additionality to the police workforce, can in reality be used to replace or be substitutes for paid police staff because of the sheer range of operational and other roles they can be given under the terms of the Bill.

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[Lord Rosser]

I do not know whether I should have been declaring an interest throughout today’s proceedings but it is a bit of a shock to find that throughout them I have been clutching a pen on which is written: “Metropolitan Police Forensics—New Scotland Yard”, so I had better declare it now.

This has been an illuminating debate for me on some of the issues that confront the police over training, appointments and leadership under the present arrangements and organisational structure. If the noble Lord, Lord Blair of Boughton, wishes to discuss his amendment, I will be more than happy to do so. I can say only that I thought that we would find a significant conflict between the two sets of amendments, but now that I have listened to the debate, that does not appear to be the case. Perhaps the ideal would be if the noble Lords, Lord Dear, Lord Blair of Boughton and Lord Condon, produced an amendment with which all three of them could associate themselves if they wish to pursue the matter through to the next stage. Obviously, they will want to hear the Government’s response before seeking to make any decisions on that point. However I will leave it at that, and I certainly await with interest what the Minister has to say on behalf of the Government.

[Baroness Williams of Trafford]

My Lords, I almost hesitate to stand up given that I am surrounded by experts in this field—and I did not go to Oxbridge either. All noble Lords have said in different ways this evening that choosing our police leaders is of the utmost importance for the future of policing, and as the noble Lord, Lord Condon, said, we need to think about it now. We fully support initiatives to ensure that police leaders are drawn from different backgrounds. That is why the Government asked the College of Policing to carry out a leadership review for policing in 2014. We wanted to look at how we could open up policing to fresh perspectives, including by expanding external recruitment to the senior ranks in policing. The review also examined how we could encourage officers to gain experience outside policing before returning later in life and how we could open up senior ranks to candidates from different backgrounds.

The review, which was published in June 2015, was a landmark for policing, setting the agenda for change and for police workforce reform. Its impact is already being felt across policing, from the new qualifications and apprenticeships for those at the start of their careers to opening up police leadership through direct entry and senior secondments, as some noble Lords pointed out.

The review recommended that national standards for recruitment and promotion into all roles, ranks and grades should be established and that all vacancies are advertised nationally. Building on the qualities for professional policing which have been defined in the College of Policing’s new competency and values framework will help to ensure that there are clear and consistent standards for each rank. Advertising roles nationally will open recruitment and make it easier for officers and staff to apply for roles in other force areas—noble Lords mentioned that that does not happen as much as it should. The college has statutory powers to recommend that the Home Secretary makes regulations on a range of issues, including the qualifications for appointment and the promotion of police officers, thus ensuring that these are implemented across England and Wales.

As part of implementing the leadership review, the college is exploring how to improve the diversity of top teams by increasing the pool of candidates for chief officer posts and supporting police and crime commissioners in their selection processes and recruitment campaigns. They are also identifying development packages for those who are appointed from overseas or, as a result of the provisions in Part 1 of the Bill, from the fire service. To support this work, the college has led for policing by undertaking a survey of PCCs, as well as of chief constables and other senior police officers, to understand the issues around senior appointments and developing the talent pool.

It should be the norm that police leaders have a breadth of experience and that they have access to other professions and fields to harness new skills that they can apply in policing. We strongly believe that it is possible to learn from policing overseas, and that is why we have already given the College of Policing the power to approve overseas police forces from which senior police officers are eligible to be appointed as a chief constable in England and Wales or as the Commissioner of the Metropolitan Police. These are set out in the Appointment of Chief Officers of Police (Overseas Police Forces) Regulations 2014 and include forces from Australia, Canada, New Zealand and the United States.

We support the work of Chief Constable Andy Marsh, the National Police Chiefs’ Council’s lead on international policing, in establishing the Joint International Policing Hub to act as the single, recognised gateway for international policing assistance for domestic and global partners.

The amendments tabled by my noble friend Lord Attlee seek to open up recruitment to the senior ranks in policing. As I have set out, the Government are very supportive of initiatives to achieve this. However, we believe that this should be led by the College of Policing, as the professional body for policing, and that it already has the necessary powers to achieve this.

We deploy police officers overseas to pursue matters of interest to the UK and share our expertise. For example, we sent officers to France to work alongside the French police in dealing with football fans at the Euros.

The noble Lord, Lord Blair, clearly comes at this issue from a different perspective. Amendment 178A in his name seeks to enshrine in statute a presumption that all those who are appointed to chief officer rank must previously have served as a senior officer in a UK police force.

When we introduced police and crime commissioners in 2012, we wanted people to have a say in policing in their local community. We gave PCCs the power to appoint the chief constable because we recognised that this appointment was crucial to implementing the PCC’s policing and crime plan. PCCs understand what the local issues are and are best placed to understand the leadership requirements of their force. It should not be for the Home Secretary to give prior approval as to who is eligible to apply for each and every chief officer post that is advertised. That would not be practical or desirable. However, today I gave the noble Lord, Lord Blair, an undertaking—and I offer it to other noble Lords; I have such a field of expertise around me that I shall open it up—to have further discussions on this area. I would welcome them and would be very happy for them to take place before Report.

The College of Policing has the power to set standards for all police ranks and can introduce new measures as recruitment at senior ranks is opened up further. It has shown how successful it is at this with the introduction of the direct entry programme and the fact that talented people from other sectors are now working in policing. The college is now working to compare the skills, abilities and knowledge needed to be a chief constable with those of chief fire officers to develop a rigorous assessment and development package for those who are interested in the top jobs in policing as a result of the reforms in Part 1 of the Bill.

As I have indicated, the Government want the best people leading policing. We believe the best way to achieve that is to have open recruitment from a wide talent pool, national standards set by the professional body and local decision-making that reflects the needs of the force and the local community. I realise that we have gone past 10 pm, but I hope that the noble Earl will be content to withdraw his amendment.

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[Lord Paddick]

My Lords, my noble friend Lady Hamwee and I have given notice of our intention to oppose the proposition that Clause 48 stand part. The reason is that all officers of the federation hold public office. They are therefore all subject to the Nolan principles—the seven principles of public life. Can the Minister explain what is to be added by the clause, over and above the Nolan principles?

[Lord Rosser]

I will briefly make two points. I have a great deal of sympathy with the amendment that has been moved by my noble friend Lady Henig. I do not necessarily share the interpretation of the words “protect the public interest” that the noble Lord, Lord Wasserman, attached to them. I think that probably, under some of its other responsibilities to its members, the Police Federation would be entitled to pursue at least some of the issues to which he made reference.

Do the Government interpret this wording of “protect the public interest” to mean that the federation must put the interests of the public before the interests of the members of the police forces it is there to represent? Secondly, does this wording mean that legal proceedings or some other action can be taken against the Police Federation by someone who believes that it has not protected the public interest? If so, who can take such legal proceedings or such other action?

Policing and Crime Bill

Lord Rosser Excerpts

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

I acknowledge that huge progress has been made, but I remember talking at a conference held in the West Midlands where in the previous year police cells had been used as places of safety 4,000 times. After proper consideration of the issue along with dialogue between all the relevant agencies, in the year that I was there the incidence had dropped down to six times. That is what can be done given the will and the commitment. If we put an emphasis on this programme, the final part of it can be achieved, but in the meantime I worry that without proper protocols the default position is to use, for example, A&E departments as places of safety. They are totally the wrong environment for people in crisis and not the right place to make a proper assessment of their needs. There is also no clear view about what the next steps should be for those vulnerable people when they leave the A&E department. So we must and can do better by using liaison and diversion and street triage, along with the progress that has been made on places of safety as the building blocks to ensure comprehensive coverage in the period ahead. I hope that the Government will consider my proposal and be positive in their response. If they want to consider it further, we can discuss this again on Report.

[Lord Rosser (Lab)]

My Lords, as has been said, the Bill bans the use of police cells for those aged under 18 in a mental health crisis, and for those aged 18 and over it states that they may be held in a police station,

“only in circumstances specified in the regulations”,

made by the Secretary of State. As I understand it, in 2015-16, 43 children and some 2,100 adults in a mental health crisis and covered by Sections 135 and 136 of the Mental Health Act 1983 ended up in police cells rather than at an appropriate health-based place of safety.

Amendment 190 in the group provides that no person of any age in this situation should be held at a police station as a place of safety, and that is an objective with which no doubt there is widespread agreement. The question that has to be asked, though, is what would happen if the provision in line with this amendment was introduced relatively soon and there were still insufficient non-police-cell appropriate places of safety available and police cells could no longer be used. What would happen to the vulnerable people concerned in those circumstances?

The Bill’s objective in relation to children not being kept in police cells is clearly considered to be achievable by the Government, no doubt because, as I understand it, we are talking about fewer than 50 children. However, the figure for adults appears to be some 50 times higher. Can the Government say how the figure of 2,100 adults in police cells in 2015-16, or whatever alternative figure they have, compares with the total number of adults in a mental health crisis who were placed in an appropriate health-based place of safety? I believe that the noble Baroness, Lady Walmsley, mentioned the figure of some 28,000. Can the Government also say how quickly they estimate that the terms of Amendment 190 could be met through the provision of the necessary additional places of safety, what the costs would be, and within what timescale they currently intend to meet the objective of this amendment, since I assume that this is a Government objective too?

Why are there wide variations, as has been said, in the current extent of the use of police cells for people in a mental health crisis, and why do some areas appear not to need to use police cells at all in this situation, but others do? Is it due to poor management, the inadequate provision of suitable health-based places of safety, or a lack of suitably qualified staff? Can the Government also set out in what circumstances they expect to specify that an adult can be kept in a police station as a place of safety under the regulations that can be made by the Secretary of State under Clause 79(6) of the Bill? Finally, along with my noble friend Lord Bradley, I look forward to hearing the Minister’s response to the proposal put forward by my noble friend in relation to a fresh and independent review.

[Lord Thurlow (CB)]

My Lords, I rise to support the amendments tabled in the names of the noble Baronesses, Lady Walmsley and Lady Hamwee, and my noble friend Lady Howe. They mark important steps across the board to bring the treatment of mental ill-health in line with our 21st-century understanding of that arena. I have, perhaps regrettably, close personal experience of dealing with and attempting to cope with people suffering a mental health crisis. I bring to bear that experience as well as the advice offered by the Mental Health Alliance and specifically the charity Mind, both of which have been referred to, in my endorsement of these amendments.

The amendments regarding the use of police cells and homes as supposed places of safety—neither are appropriate, I agree—and concerning the period of detention in those places awaiting a mental health assessment are most important. I acknowledge the positive steps that this Bill in its original form recommended in both of these areas, but they do not go far enough. Perhaps I may reflect for a moment on who it is that these clauses are designed to protect. It is the vulnerable, the needy and those less able to help themselves. We have a special duty to those people in our society. These amendments are an important step of progress in improving their treatment at the hands of the police in times of crisis. That said, I am not criticising the police. I have seen at close quarters the awkward circumstances of the police having to enforce the rules. I admire the sensitivity and empathy I have seen displayed.

When a person is in a mental health crisis there is a very high risk of private anxiety, emotions of distress, confusion, aggression and perhaps threatening behaviour. What is required is probably support and compassion. Confinement in a cell is bound to add to this distress. Surroundings matter.

As we have heard, the Government have begun to dedicate funds to mental health services, improving the provision of suitable places of safety and achieving parity of esteem between mental and physical health. These are important steps and this work must continue. We must step up to this challenge on the behalf of those affected. This disadvantaged group, unlike most in our society, seldom makes its own case for better care. The reality is, of course, that they cannot—they are confused and they are not organised—but we can. They rely on us, and on the charities and other groups that work with them.

We must be sure to try our best to legislate so that the trend continues and relevant investment goes toward providing for those in need. The amendments tabled by the noble Baroness would do exactly that. This is legislation that will help bring the Mental Health Act 1983 into the 21st century. If we think for a minute, that Act was enacted more than 30 years ago. The quantum leaps of progress in medical understanding of mental health issues have been huge. Yet, the Act on the statute book is more than 30 years old. We must take every opportunity we can to improve the terms of the Act wherever we can.

I thank the noble Baronesses for their work in tabling the amendments and request that the Minister accepts them.

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[Lord Dear]

My Lords, I echo the words that we have just heard. I have considerable sympathy with the emotions and reasoning behind the amendment of the noble Baroness, Lady Walmsley. I make no comment about staffing in psychiatric wards—I have no knowledge of that—but as I speak against this amendment, we should remember that the Taser was introduced as an intermediate stage. It is intermediate between the use of batons, pepper sprays, CS gas and so on the one hand and firearms on the other. A Taser is not a firearm. It is something akin to it—it looks rather like one—but it is not a firearm within the definition of the Act. It does a different thing altogether. There is a violent interaction; of that, there can be no doubt. It brings immediate incapacity and some discomfort when it is fired but, as is sometimes said, in fact it knocks down the individual completely. That has to be the object of the exercise.

Perhaps I can give the Committee a circumstance which has already been alluded to. On a psychiatric ward a patient, for whatever reason, has become exceedingly violent and probably caused serious injury. They may even have caused death. The police are called; what are they going to do? If this amendment is passed into law, the police cannot use a Taser. They will use either the original, which is the pepper spray and so on, or a firearm. We need to remember that the use of a firearm in those extreme circumstances is justified in law, because there is a threat to life. By taking the Taser out we will in effect open the door, in extremis, to somebody being shot with a real lethal barrelled weapon.

I am all for looking at practice directions and reviewing the use of Tasers. Mission creep has been mentioned and perhaps there is mission creep—I do not know that and have not looked at the figures. However, to have something as extreme and prescriptive as this amendment within statute will certainly expose patients in psychiatric wards to the risk of death rather than anything else. In speaking against this, I am all for looking closely at the use of Tasers and for counselling officers using or thinking of using them to exercise extreme caution, but I would not go so far as the amendment stands.

[Lord Rosser]

My Lords, my name is attached to Amendment 194 and to a further amendment in this group, Amendment 201SB. As far as Amendment 194 is concerned, as has been said, it provides that a police officer may not use a Taser or electroshock weapon during deployment on a psychiatric ward. The purpose of adding my name to this amendment is to raise concerns that have been expressed to us about what is, in effect, a police response to what one might have thought was a clinical emergency but which has the potential effect of appearing to criminalise highly vulnerable people. I accept, though, that there could be very exceptional circumstances where a police officer might have to use a Taser during deployment on a psychiatric ward.

In response to this debate, perhaps the Government could provide figures on the extent of the use of Tasers or other devices by the police on psychiatric wards over the last 12-month period for which figures are available, and on the varying extent to which the trusts concerned called in the police and why there are such variations. The noble Baroness, Lady Walmsley, clearly has similar information to that which I have been given. I have been told that there are trusts which call in the police literally hundreds of times a year. It would be helpful if the Government could say in response whether they accept that that is true and why they think it happens. If the police are called in on frequent occasions, is the heart of the problem that results in them being called in in that way either inadequate numbers of staff on duty to cope with situations that arise, or is it due in any way to inadequate or insufficient training of staff?

The second amendment which I have in this group calls for a review of Tasers, including in places of custody, and the extent to which there is or is not a disproportionate use of Tasers against black and minority ethnic groups. Once again, this concern has been raised with us—hence the amendment—and it was highlighted following an incident which led to the death of a former well-known footballer. I simply ask: what procedures exist to ensure that there is transparency and scrutiny over the use of Tasers? What information is kept of the details of those against whom Tasers are deployed, including age, gender and ethnicity? What requirement is there for the use of Tasers to be reported immediately and to whom?

Like the noble Baroness, Lady Walmsley, I have just seen the letter sent yesterday to Charles Walker MP from the Minister of State for Policing and the Fire Service on the use of Tasers in mental health settings. No doubt in her response the Minister will seek to place on record in Hansard the thrust of the terms of that letter and the circular that has been sent to police and crime commissioners, chief constables and the chairs of local mental health crisis care concordat partnerships in England. Nevertheless, I hope that the Government will seek to respond to my questions insofar as they can, bearing in mind that the circular states that at present there are no reliable data on the frequency or scale of any Taser use in mental health settings.

[Lord Harris of Haringey (Lab)]

My Lords, I find myself in total agreement with the words expressed by the noble Viscount, Lord Hailsham, and the noble Lord, Lord Dear. When I first saw this amendment I could see what it was trying to achieve: a laudable objective, based on the fact that many mental health units are incapable of dealing effectively with some of the patients they have on their wards, and that the police are called to deal with incidents in an unacceptable number of instances. Quite frankly, I suspect that whatever is going on in some of those mental health settings, they are not finding all the appropriate ways of dealing with and de-escalating violence which one would expect their specialist training to deliver. The number of times that the police are called is of concern.

However, when I saw the amendment I thought it was a silly—fatuous was the word that first came to mind—response to what was proposed. The point is that if there is a very serious incident and a major crime of violence is being committed, the police have to be called. It is then a question of what the most appropriate response is. A few months ago, a mental health nurse was murdered by a patient in a Croydon mental health unit. Is the noble Baroness, Lady Walmsley, suggesting that it would have been inappropriate in the circumstances in which the police were called to that unit not to have found ways of restraining the patient concerned, given that it was necessary to deal with them? Then there was a mental health nursing assistant who was murdered by a patient in Gloucester in 2014, because the patient had returned from authorised leave with a 10-inch kitchen knife. These are serious incidents that require an appropriate and proportional response. What does the noble Baroness think should have been done in those incidents? The situation was that they had got out of hand in both instances and individuals died, presumably as a consequence of the mental health unit not being able to manage the incident. The effect of Amendment 194 would be that had there been a police officer equipped with a Taser in the immediate vicinity, he could not have discharged it. The noble Baroness may think that something other than a Taser should be used.

The argument about where Tasers sit in the spectrum of potential uses of force by the police is one which will no doubt continue. But although there have been instances where someone has died perhaps as a consequence of repeated Taser use, it is also the case that people have died because of the use of other forms of force. Hitting somebody across the side of the head with a baton is also potentially likely to cause death. Indeed, it may be better for the patient or individual concerned to be tasered.

The noble Baroness, Lady Walmsley, talked grandly about the UN saying that these were weapons of torture. The UN definition of the term “torture” is:

“any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official”.

I fail to see how that UN definition of torture could be applied to the circumstances we are talking about of an emergency in a mental health ward where the police have been called. I understand that the use of the word “torture” related to the particular way in which Tasers—I think we are supposed to call them conductive electric devices or something equally opaque—were issued in a particular unit of the Portuguese police force. I have no idea under what circumstances that particular unit of the Portuguese police force was planning to use Tasers, but I assume that the use of the word by the UN was very specific, bearing in mind its definition of torture.

If we pass this amendment, the only alternative when the police have been called because of a major incident—an assault, somebody at the risk of losing their life or somebody already having lost their life and a danger to others—when a Taser cannot be used would be the use of a real firearm, which would be likely to kill the individual concerned, or a baton, which can be just as damaging, particularly in restricted and difficult circumstances. I do not think that makes any sense at all.

Policing and Crime Bill

Lord Rosser Excerpts

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

Moved by

[Lord Rosser]

196A: Clause 82, page 106, line 8, at end insert—
“( ) The Secretary of State must, before making regulations under subsection (3)(g), consult such persons as the Secretary of State considers appropriate.”

[Lord Rosser (Lab)]

We have two amendments in this group to which I wish to speak. Clause 82 relates to the application of the maritime enforcement power and the designation of those law enforcement officers who may exercise that power. Clause 82(3) lists a number of persons who are law enforcement officers for the purposes of Chapter 5, while subsection (3)(g) designates as a law enforcement officer,

“a person of a description specified in regulations made by the Secretary of State”,

thus creating an unspecified category of person who can be designated as a law enforcement officer, but it leaves that further designation to secondary legislation. Why is this provision in Clause 82(3)(g) needed? What kind of currently unspecified category of person is the Government of the view may need to be designated as a law enforcement officer but cannot be so designated clearly and specifically on the face of the Bill?

The purpose of the first amendment in the group is to make sure that the Secretary of State will at least be required to consult prior to making such a regulation designating an as-yet unspecified person as a law enforcement officer who can exercise the maritime enforcement power. The second amendment is similar and refers to Clause 94, which also relates to the application of the maritime enforcement power and the designation of those law enforcement officers who may exercise the power. Subsection (3) lists a number of persons who are law enforcement officers for the purposes of Chapter 6. However, subsection (3)(e) designates as a law enforcement officer,

“a person of a description specified in regulations made by the Secretary of State”.

Again, why is this provision in Clause 94(3)(e) needed? What kind of currently unspecified category of person is the Government of the view may be needed to be designated as a law enforcement officer but cannot be so designated clearly and specifically on the face of the Bill? Clause 94 also has application in Scotland, but as currently worded contains no requirement for the Secretary of State to consult, for example, Scottish Parliament Ministers. Perhaps the Government could comment on that. The purpose of our second amendment in the group is again to make sure that the Secretary of State would at least be required to consult prior to making a regulation designating an as-yet unspecified person as a law enforcement officer who can exercise the maritime law enforcement power.

Perhaps I may also raise a question about the application of the maritime law enforcement powers by law enforcement officers or indeed by the Secretary of State. Clause 82 creates maritime enforcement powers in relation to, among other things, foreign ships in any waters, and Clause 86 gives law enforcement officers the power to,

“require the ship to be taken to a port in England and Wales or elsewhere and detained there”.

Why is the reference to “or elsewhere” included, which could cover anywhere else in the world? This power could presumably be used in cases involving foreign ships that are discovered, for example, within our territorial waters to contain or are suspected of containing refugees and others in need of international protection who may be in breach of immigration law. Those in need of international protection have a right not to be returned to situations in which they face a real risk of persecution or other ill treatment, and to have their claims for protection fairly determined before they can be returned. On the face of it, the power to which I have just referred could be used to override those rights. Will the Minister say why my analysis of how these powers could be used is incorrect, as I hope it is? I beg to move.

--- Later in debate ---

[Baroness Chisholm of Owlpen]

Well, my Lords, it just shows how marvellous this House is. We have experts who can always answer the questions for us, which is an enormous help.

As the noble Lord, Lord Rosser, explained, Amendments 196A and 200A relate to the power, by regulations, to add to the list of law enforcement officers who may exercise the new maritime enforcement powers in Chapters 5 and 6 of Part 4 of the Bill. Clause 82(3) defines “law enforcement officers” in England and Wales for the purpose of exercising the maritime powers. This includes provision for the Secretary of State to specify in regulations other categories of person who may be allowed to exercise these powers. Clause 94(3) makes equivalent provision for Scotland. The proposed amendments would require the Secretary of State to consult prior to making such regulations.

The noble Lord, Lord Rosser, mentioned foreign ports. Ports in foreign countries are included. Maritime powers can be exercised in international and foreign waters all over the globe. It is a practical and operational necessity that those exercising such powers should be able lawfully to divert a ship to a port and detain it there where the operation in question takes place hundreds or thousands of miles away from England and Wales. I can assure the noble Lord, Lord Rosser—

[Lord Rosser]

My concern was that “or elsewhere” might be used in cases involving foreign ships which are discovered within our territorial waters to contain, or are suspected to contain, refugees and others in need of international protection who might be in breach of immigration law but who nevertheless have certain rights which, on the face of it, could be overridden if there was a power to divert ships to a port elsewhere—indeed, anywhere in the world. It could mean them being sent back to a place where they would be in danger. It would also mean that they would not have had the right to have their claim for protection fairly determined before they could be returned. The question I was asking is, was my interpretation of the apparent power in the Bill for a law enforcement officer or the Secretary of State to be able to do that correct? If it was not correct—and I said I hoped it was not correct—will the Government explain to me why my analysis was not right?

[Baroness Chisholm of Owlpen]

My Lords, inspiration has appeared from over my left shoulder. The maritime provisions of the Bill are strictly intended to enable enforcement officers to prevent, detect, investigate and prosecute offences under the law of England and Wales. Any decision to divert a foreign ship that is not in UK territorial waters to a foreign port will require the authority of the Secretary of State. These powers are not intended to be used in a way which is contrary to the Human Rights Act, the 1951 refugee convention or the 1967 protocol.

I can assure the noble Lord, Lord Rosser, that the Home Secretary will consult appropriately before making any such regulations. Such consultation will certainly include any person or body to be specified in the regulations and, in relation to any regulations to be made under Clause 94, the Scottish Government. Indeed, there is an implied duty to consult the Scottish Government and more in Clause 94(6), which requires Scottish Ministers to consent to any regulations under Clause 94(3)(e), which makes devolved provision. Having stated our intention to consult on any such regulations, I hope the noble Lord will agree that it is not necessary to set this out in the Bill.

Amendments 196C, 196D, 197 and 198 relate to Clause 92, which imposes an obligation on the Secretary of State to provide a code of practice for law enforcement officers who use the power of arrest conferred by Clause 88. This code must provide guidance on the information—for example, procedural rights to be given to a person at the time of their arrest. Amendments 196C and 196D seek to amend Clause 92 to extend the scope of the code of practice so that it also addresses the matters which a law enforcement officer must have regard to when considering making an arrest under the maritime powers. We believe that the proper focus of the code is on the information that should be provided to a suspect at the point of arrest, including in relation to their procedural rights. Importantly, the provisions in the Bill in respect of the code of practice closely mirror those in the Modern Slavery Act 2015 and it would be confusing to law enforcement officers to adopt a different approach here.

The power of arrest, like other powers under the maritime provisions, is clearly set out in the Bill. For example, Clause 88 is clear that the power of arrest may be exercised where an enforcement officer has reasonable grounds to suspect that an offence under the law of England and Wales has been, or is being, committed. It will be down to the knowledge, experience and professionalism of the officers concerned as to whether the use of the power is both necessary and appropriate for the purpose of preventing, detecting, investigating and prosecuting offences. The priority for enforcement officers who have apprehended a person on a vessel at sea will be to bring them back to the UK, where they will be processed under PACE in the usual way.

Amendments 197 and 198 relate to the parliamentary procedure for bringing codes of practice into force. The Bill makes provision to bring a new code of practice into law through the affirmative procedure. However, Clause 92(9) provides a choice of procedure for any subsequent revisions to the code. This enables the right level of scrutiny to be provided, proportionate to the revisions being made to the code. For minor or consequential changes the affirmative procedure would, we believe, be disproportionate. Insisting on the affirmative procedure in all cases could cause unnecessary delays in revising the code, with the result that the code would remain out of date in operational terms for longer than necessary. Amendments 197 and 198 would remove this choice, requiring both the first draft of a new code of practice and any revisions to go through the affirmative procedure.

The Delegated Powers and Regulatory Reform Committee recommended in its report on the Bill of 13 July that when using Clause 92(9), the Minister should be,

“bound by the views of the House of Commons Home Affairs Select Committee”.

This is similar to the procedure used for revisions to codes of practice for the Police and Criminal Evidence Act 1984. My noble friend’s letter of 7 September to the noble Baroness, Lady Fookes, chair of the Delegated Powers Committee, accepted that recommendation, so the choice of procedure provided by Clause 92(9) will be exercised with reference to the views of the Home Affairs Select Committee. We believe that this will provide the best approach to ensuring that the appropriate level of scrutiny is provided for any changes to the code.

I hope I have been able to satisfy noble Lords that these amendments are not necessary and that accordingly the noble Lord, Lord Rosser, will be content to withdraw his amendment.

[Lord Rosser]

I certainly will withdraw the amendment. Unless I was not paying as much attention as I should have been—and I accept that that is a genuine possibility, and I mean that—I am not sure that I got an answer to the question: what kind of current unspecified category of persons do the Government believe may need to be designated as a law enforcement officer that cannot be so designated clearly and specifically now in the Bill? That related to both Clause 82(3)(g) and Clause 94(3)(e).

The only other point I would ask for clarification on, which comes back to the question I raised about how the powers could, on the face of it, be used to override the rights of those in need of international protection, is whether in giving the Government’s response the Minister said that it was not intended that the powers be used to override the rights of those in need of international protection, or that they would not be used in that way. The latter is rather firmer than a statement of intent.

[Baroness Chisholm of Owlpen]

On the noble Lord’s first point, these powers are necessary to enable the categories of law enforcement officer who may exercise these maritime enforcement powers to be extended in the light of changing operational requirements. For example, both the Criminal Justice (International Co-operation) Act 1990 and the Modern Slavery Act 2015 confer powers on Armed Forces personnel and there may be an operational case for extending the powers in this Bill to such personnel in future.

[Lord Rosser]

Is there any clarification—or perhaps the Minister could write to me subsequently—of what was said in relation to the apparent ability to override the rights of those in need of international protection through the facility to divert a ship to a port elsewhere, or indeed anywhere in the world? Was the response that it was not intended that that power should be used to override those rights, or was it a clear statement that it would not be used to override those rights?

[Baroness Chisholm of Owlpen]

I will write to the noble Lord.

[Lord Rosser]

I thank the Minister very much indeed. I beg leave to withdraw the amendment.

Amendment 196A withdrawn.

--- Later in debate ---

Moved by

[Lord Rosser]

202: After Clause 110, insert the following new Clause—
“Police and crime commissioners: parity of funding at inquests
(1) When the police force for which a police and crime commissioner is responsible is an interested person for the purposes of an inquest into—(a) the death of a member of an individual family, or(b) the deaths of members of a group of families,under the Coroners and Justice Act 2009, the Commissioner has the duties set out in this section.(2) The police and crime commissioner must make recommendations to the Secretary of State as to whether the individual family or the group of families at the inquest require financial support to ensure parity of legal representation between parties to the inquest.(3) If a police and crime commissioner makes a recommendation under subsection (2) then the Secretary of State must provide financial assistance to the individual family or the group of families to ensure parity of funding between the individual family or the group of families and the other party to the inquest. (4) The individual family or the group of families may use funding authorised under this section solely for the purpose of funding legal representation at the inquest.(5) In this section, “interested person” has the same meaning as in section 47 of the Coroners and Justice Act 2009.”

[Lord Rosser]

My Lords, this amendment and its associated new clause seek to establish the principle of parity of legal funding for bereaved families at inquests involving the police, the lack of which and the associated injustice was highlighted by the sorry saga of the Hillsborough hearings and the extent to which the scales were weighted against the families of those who had lost their lives. But Hillsborough was not a one-off—it was simply that the proceedings received a lot of publicity. Many bereaved families can and do face a similar situation when they go to an inquest and find themselves in an adversarial and aggressive environment where they are not in a position to match the spending of the police or other parts of the public sector in what they spend on their own legal representation. At times, the families feel that they are being made to look like the perpetrators responsible for what happened, rather than the victims.

The public sector is in a position to spend taxpayers’ money on hiring the best lawyers to defend its reputation. Bereaved families have to find their own money, sometimes even to the extent of remortgaging their house, to have any sort of legal representation to mount a challenge. Public money should pay to establish the truth, and that surely means parity of arms. If the argument is that an inquest will get at the truth anyway, irrespective of the extent and quality of legal representation, why do the police and the public sector turn up at such inquests with their own array of lawyers?

Margaret Aspinall, who was the chair of the Hillsborough Family Support Group, has told of the lengths to which she and other members of the group had to go to raise money for the legal fund. It is surely not right, and surely not justice, when bereaved families trying to find out the truth, and who have not done anything wrong, find that taxpayers’ money is being used by the other side to paint a very different picture of events in a bid to destroy their credibility.

It might also help if we had inquisitorial rather than adversarial inquests. In the case of Hillsborough, the Lord Chief Justice made a specific ruling when he quashed the original inquest: he hoped that, given that the police had tainted the evidence, the new inquest would not degenerate into an adversarial battle. However, that is precisely what happened, and the lies and innuendo about Liverpool supporters at the match were repeated by a lawyer being financed at public expense and presumably acting under instructions from the public body involved.

I hope that the Government will be able to respond in a more helpful way than they did when this matter was debated during the Bill’s passage through the Commons. If there is to continue to be an adversarial battle at inquests involving the police, we should at least ensure that bereaved families have the same ability as the public sector to get their points and questions across and, in the light of what can currently happen, to defend themselves and the loved ones they have lost from attack, and, if necessary, to challenge the very way proceedings are being conducted. This is a bigger issue than simply Hillsborough: it relates to the situation that all too often happens to too many families, but without the same publicity as Hillsborough. We surely need to act now to change a process and procedure that appears at times to be geared more to trying to grind down bereaved families than to enabling them to get at the truth and obtain justice. I beg to move.

[Lord Paddick]

My Lords, I rise briefly to support the amendment to which I have added my name. I declare an interest: I gave evidence for the de Menezes family at the inquest into the death of Jean Charles de Menezes, whom noble Lords will remember was shot by accident by the police, suspecting him to be a suicide bomber. Sadly, I experienced the adversarial nature of inquests at first hand. Indeed, during the lunch break on the day that I gave evidence, the coroner had to warn the legal team for the Metropolitan Police and basically tell them to “cool it”.

A very adversarial system operates at the moment, whereas it should be an inquiry after the truth. Having experienced it first hand, I can say that it is absolutely necessary for the families of the bereaved to be as well represented as the police where there has been a death at the hands of the police, or a death in police custody, to use the technical term. For those reasons, I support the amendment.

--- Later in debate ---

[Baroness Williams of Trafford]

My Lords, the Government will see and respond to Bishop Jones’s review in due course. He is considering the terms of reference for his review with the families and intends to publish them shortly.

The noble Lord spoke of the suffering. He is absolutely right: it is not just the suffering of one person but the suffering of everybody associated with them, so I do not undermine the noble Lord’s point at all; in fact, I share his view. Let us see what Bishop Jones says and the Government will respond in due course.

[Lord Rosser]

I thank all noble Lords who have participated in this debate and the Minister for her response. I shall not pretend that the response was a tremendous shock, since it was not dissimilar to those given previously. I am not quite sure how the report by the bishop will necessarily address the issue of what could happen at inquests generally where the police are represented, as opposed to the rather special circumstances of Hillsborough. The point that I was trying to make—obviously to no avail—is that this issue is not about Hillsborough; it goes way beyond that to looking at inquests generally where the police are represented, where there is a distinct inequality of arms and the consequences that arise from that. I was disappointed to hear again the issue of the money being raised as a key point. Some might think that if spending that amount of money enabled us at long last to get at the truth over Hillsborough then maybe it was not money badly spent, but clearly the Government have a different view about that.

On the arguments about the technicalities of the amendments and on whether the wording is appropriate or a bit vague in certain areas, if the Government wanted to be serious about doing something they would not put that argument forward. They would say that there were issues with the amendments that my noble friend Lord Harris and I had put down, but that they accepted the principle of what we were trying to achieve and would come back on Report with an amendment of their own, or alternatively that they would have discussions about the appropriate wording. But that has not been the Government’s response.

Although I do not want to pretend that I am somehow shocked at the Government’s reply, since it is consistent with what has been said previously, I am disappointed with it, since I have not heard any guarantees that the report from the bishop will address the wider issue of inquests generally where the police are represented as opposed to what happened at Hillsborough. There was nothing in the Minister’s response to indicate that it would do that. In the meantime, I beg leave to withdraw the amendment. Obviously, we will have to consider whether to bring it back on Report.

Amendment 202 withdrawn.

Policing and Crime Bill

Lord Rosser Excerpts

Committee: 4th sitting (Hansard - part one): House of Lords
Wednesday 9th November 2016 Lords Chamber

Moved by

[Lord Rosser]

204: Clause 115, page 131, line 33, leave out from “specify” to end of line 34 and insert “that the fee charged must be equal to the full cost to the public purse of issuing the certificate.”

[Lord Rosser (Lab)]

My Lords, I will at least attempt to be concise. The Bill deals with relatively narrow issues around Home Office licensing fees for firearms, but I will also talk about police licence fees for guns. These amendments seek to ensure that the full costs of licensing are recovered. In the previous Parliament we argued for full cost recovery in the light of a current taxpayer subsidy for gun ownership of some £17 million a year. The police have estimated that the cost of licensing a firearm is nearly four times the fee charged. A higher fee was introduced just prior to the last general election following negotiations with the British Association for Shooting and Conservation—rather than following an independent review—but it was still less than half the cost of licensing a firearm based on the police figures. These amendments require the Secretary of State to set the cost of a licence fee for prohibited weapons, pistol clubs and museums at full cost to the taxpayer, but we expect the Government to extend this requirement of full cost recovery to Section 1 firearms and the police.

--- Later in debate ---

[Baroness Williams of Trafford]

May I write to the noble Lord on that? I do not have the answer on timing to hand. I apologise.

[Lord Rosser]

I seek clarification of one or two points. Did the Minister say that as far as Home Office licence holders are concerned, they will be paying the full cost of licensing from April of next year? As far as the police are concerned, there was no real commitment at all. I asked when the new online system would be introduced. I do not think that I got an answer. I asked whether the full costs of licensing would be charged from the day the new online system came in. I do not think that I got an answer. I also asked by how much the Government considered the fees for police licences would have to be increased to cover the full costs of licensing. I believe that the Minister referred to a review of police licences and costs in five years’ time. Is this suggesting that the new online system will not be coming in for five years? If the Minister is unable to give me a firm date as to when that online system will be operational, can she give a commitment that in the meantime those fees will be raised to cover the full costs and that we shall not be in a situation in which the police, who are already short of money, are in fact subsidising gun ownership in this country with money desperately needed for main police activities? Could I please have some answers? If they are not available now, I shall as always accept a subsequent letter responding to these questions.

[Baroness Williams of Trafford]

My Lords, in terms of the online system, the current fees are intended to cover the cost of the licencing once the online system is introduced. The police, supported by the Government, are currently developing the online system. An implementation date has not yet been determined. We plan to introduce the Section 5 fees and the increased fees for museums and clubs in April 2017, subject to the planned consultation. The level of fees will therefore be determined subject to that consultation. There is no suggestion that the new online system will take five years to implement. There will be an annual review of licence fees. I hope that I have not completely confused the noble Lord.

--- Later in debate ---

[Lord Rosser]

I do not know that the Minister has completely confused me. She has said that we do not know when the new online system is coming in, which presumably means that it has not reached the testing stage at which the Government know that it will actually deliver, yet the Government are adamant that it will not take five years. If the Government know that it will not take five years, they must be in a position to say now when they expect the system to come in. They can also say why in the meantime they will not increase the fees as far as the police licences are concerned to cover the full cost to the police. Not doing so means that the police, who are short of financial resources, are subsidising gun ownership.

[Baroness Williams of Trafford]

My Lords, the noble Lord is right in that the taxpayer should not subsidise gun ownership. The new fees will be subject to consultation, although that was not the question he asked. He asked whether it will take five years to implement the online system. I will write to him on how long we think implementation of the online system will take, if that is okay.

[Lord Rosser]

I thank the Minister for her response and other noble Lords, in particular the noble Lord, Lord Paddick, and my noble friend Lord Harris, who participated in this short debate. I am grateful to the Minister for saying that she will write to me on this, because the question of when the Government are gearing up to introduce the online system is crucial. I sense it will not be within the next few months—to put it bluntly, the Government do not know when it is coming in. They are not even prepared to give an estimate of the timescale, unless that will be in the letter that is to be sent. We will need to reflect further on this in the face, apparently, of a government stance that means they are quite happy, if the online system does not come in very shortly, to see the police subsidising gun ownership in this country, at a time when the police themselves are desperately short of financial resources. However, I beg leave to withdraw the amendment.

Amendment 204 withdrawn.

Policing and Crime Bill

Lord Rosser Excerpts

Committee: 4th sitting (Hansard - part two): House of Lords
Wednesday 9th November 2016 Lords Chamber

[Lord Brooke of Alverthorpe (Lab)]

My Lords, briefly, I am also one of the members of the Select Committee under the great guidance and wisdom of our chairman. I share the views that have been expressed and I shall not repeat them. Why was this particular area selected from the document on modernising the police? Why have a host of other amendments not been tabled to pick up the other recommendations that the police want to see implemented? There is almost enough here for a package rather than picking out individual bits. Why were other recommendations not acted on?

[Lord Rosser (Lab)]

The issue of the cumulative impact assessments was one that we pursued when the matter was discussed in the Commons. It is for the Government to say why they brought the amendments forward now. But, unless I am misreading the position, at least some of these amendments have some support. Unless I have misread the briefing from the Local Government Association, it supports Amendment 209C, which seeks to ensure that licensing authorities give regard to cumulative impact assessments, and Amendment 209D on late-night levy requirements.

[Baroness Chisholm of Owlpen]

My Lords, I thank all noble Lords who have taken part in this short debate. First, to answer my noble friend Lady McIntosh on whether there was any public consultation, in the summer of 2015 the Home Office held workshops with key partners. One workshop included the Local Government Association, the Institute of Licensing, licensing officers from several local authorities and representatives of the national policing lead on alcohol and the PCC lead on alcohol. The second workshop included industry partners such as the British Beer and Pub Association, the Association of Convenience Stores, the Wine and Spirit Trade Association and the Association of Licensed Multiple Retailers. A survey was sent to all licensing authorities. The Home Office received 32 responses, including one from the PCC working group on alcohol. There is no trade body that represents late-night refreshment providers.

We have heard today from many members of the committee. All I can do is reiterate what I said in my speech: we shall of course look carefully at the findings of the committee before coming to any final conclusions and before implementing the provisions. We will wait for the Select Committee’s report next March. As I said, these reforms were announced in the Government’s Modern Crime Prevention Strategy that was published this March, some two months before the Select Committee was established. The Government are keen to take the opportunity afforded by the Bill to legislate on these matters so that they can be enacted as soon as possible. But that does not change the fact that we shall wait for the findings of the Select Committee.

The 70:30 split was mentioned. This can be amended by secondary legislation, so there is no need to make provision in the Bill. As I have said, we will consider any recommendation the Select Committee may make on this issue.

The Government believe it is right to proceed with these amendments now, as alcohol provisions were included in the Bill on its introduction to the Commons in February—so this is an appropriate vehicle to legislate on the new measures. As the noble Lord, Lord Rosser, said, the Opposition tabled amendments on cumulative impact policies in the Commons and these government amendments respond, in part, to those Commons amendments.

--- Later in debate ---

[Lord Rosser]

I thank the noble Lord, Lord James of Blackheath, for his contribution. I do not go into betting shops, but he has confirmed that I have only a marginally smaller chance of winning than those who do. My noble friend Lord Beecham and the right reverend Prelate the Bishop of Salisbury in particular have already set out the background to and concerns behind this group of amendments: concerns about the increase in reported criminal offences linked to betting shops, which has coincided with the proliferation of fixed-odds betting terminals. These criminal offences relate both to violence towards staff and to damage to property arising from losses incurred from gambling on these terminals.

There is a link between the use of fixed-odds betting terminals and their anonymity for user and money laundering, with one major firm fined some £800,000 by the Gambling Commission this summer over inadequate protection against money laundering. At present, licensing authorities can lay down a series of conditions on betting premises to help ensure that the licensing objectives of preventing crime and protecting the vulnerable are delivered and maintained. However, licensing authorities cannot limit the number of machines below the maximum of four per betting premise, and neither can they lay down requirements for the operation of gaming machines including fixed-odds betting terminals.

This group of amendments would, among other things, achieve these objectives by allowing licensing authorities to place conditions which could limit the number of fixed-odds betting terminals permitted under a gambling premises licence. Fixed-odds betting terminals now contribute, as I understand it, well over 50% of the profits of high street betting shops. These amendments would also allow licensing authorities to place conditions on gambling premises which would restrict the operation of gaming machines including fixed-odds betting terminals to people who have established their identity with the gambling premises concerned. This would assist in addressing money laundering and also help to reduce the incidence of violent disorders, including aggression towards staff, and the risk of under-age gambling. In both instances the licensing authority would have to show why these conditions were necessary to ensure that the licensing objectives to which I have already referred were delivered.

A further amendment in this group would also mean that licensing authorities did not have to determine each licence application in isolation. Instead, the amendment would make it clear that such authorities could take account of the cumulative impact on a range of local factors in making a decision—factors such as social deprivation and local crime rates, the creation of a betting shop cluster and the proximity of local schools or centres for other groups of vulnerable people. Such a provision in the relevant amendment in this group would better enable licensing authorities to protect areas that they considered at real risk of gambling harm.

The purpose of these amendments—as has already been said, Amendment 214, the main amendment, has the support of the Local Government Association—is to give local authorities a much-needed wider range of measures to enforce the existing licensing objectives. I hope that the Government will respond favourably. Surely local authorities are in the best position to know what is and is not needed in their own community. They should now have the necessary powers to deliver the existing licensing objectives.

[Baroness Chisholm of Owlpen]

My Lords, as the noble Lord, Lord Beecham, and the right reverend Prelate explained, these amendments would have the effect of devolving power over licence conditions for gaming premises and gaming machines to local authorities. The number of gaming machines authorised under a gambling premises licence is regulated by the Gambling Act 2005. Licensing authorities do not currently have the power to change this limit, and cannot impose licence conditions on gaming machines that relate to stakes or prizes. However, they do have licensing powers in respect of gambling premises. These include powers to reject an application for a licence and powers to impose other conditions, for example around opening hours. They can also review and revoke licences. The Department for Communities and Local Government also brought in new planning laws last year that ensure that applications to change, for example, a disused shop into a bookmaker’s office will need planning consent.

In looking to introduce this new clause, the right reverend Prelate is seeking to limit the number of fixed-odds betting terminals in bookmakers and casinos. The Government understand the concern that such gaming machines could fuel problem gambling and are committed to reducing the risks of potential harms associated with such machines. Indeed, last year, we introduced new regulations to ensure that players staking over £50 on these machines either had to open an account or had to interact with staff. Evaluation shows that there has been a significant decrease in players staking above £50. The Gambling Commission also introduced new social responsibility requirements last year, including measures that force customers to make an active choice on whether to set time and money limits while playing these machines.

In addition, the noble Lord, Lord Beecham, is seeking to enable licensing authorities to impose minimum staffing levels on premises with such machines. The noble Lord may have in mind a number of tragic incidents in high street bookmakers over the last few years. The Association of British Bookmakers’ Safe Bet Alliance provides specific guidance on staffing security in bookmakers, which was drafted with the input of the Metropolitan Police. Members of the Association of British Bookmakers operate single staffing only when a risk assessment has been undertaken.

Sections 167 and 168 of the Gambling Act 2005 empower the Secretary of State for Culture, Media and Sport to set mandatory and default conditions on premises licences via secondary legislation, which could include a condition setting staffing levels. This would be the preferred route to make such a change. In addition, I must emphasise that the Government believe that the appropriate mechanism for reviewing stakes and prizes, and gaming machine numbers, is the review announced on 24 October by the Minister responsible for gambling, which will consider these issues in a more holistic and comprehensive context.

My noble friend Lord James mentioned statistics about roulette wheels. I have to say that I got slightly lost in all the various numbers, which is not surprising considering that I was unable to add the 45 minutes when it came to the lunchtime break—but I certainly take his point and I listened with interest.

The noble Lord, Lord Beecham, talked about the Sustainable Communities Act. The Government are engaging with the LGA on this issue. The review announced on 24 October is the right mechanism to consider all these issues, and the Government invite Newham Council to take part in that review.

The Government are alive to the concerns about the dangers posed by fixed-odds betting terminals. As I have set out, we have already taken steps to tighten the controls on these machines and have set out our plans for the review of gaming machines, gambling advertising and social responsibility, which will include stakes on fixed-odds betting terminals. I am sure that the right reverend Prelate, the noble Lord, Lord Beecham, and other noble Lords will want to contribute to that review, and I encourage them to do so. The review will include a close look at the issue of B2 gaming machines—more commonly known as fixed-odds betting terminals—and specific concerns about the harm that they cause, be that to the player or the community in which they are located. The call for evidence period will close on 4 December, following which the Government will consider proposals based on robust evidence provided to assist in our decisions.

Given that this process is in train, I invite the noble Lord, Lord Beecham, to withdraw the amendment.

--- Later in debate ---

He is right. Over the years, many British Olympic athletes—and I declare my interest of not only having competed in two Olympic Games, but having had the privilege of being the Chairman of the British Olympic Association during Beijing and London—have taken a firm and uncompromising stance that those guilty of cheating should never again be selected to represent their country. These amendments go nowhere near as far as that objective, but they signal a clear intention to clean athletes that Parliament will act and will act now.

[Lord Rosser]

My Lords, the noble Lord, Lord Moynihan, has explained the purpose of this amendment and the extent of its provisions. It is a very timely amendment: the Olympic Games in Rio were overshadowed by doping scandals. Russia was banned from the Paralympics, but did not receive a blanket ban from the main Olympics, despite the state-sponsored doping that had been exposed.

Now, a recent report from the World Anti-Doping Agency independent observers has highlighted failings in the anti-doping checks and procedures at Rio, which the report indicates put an almost unmanageable strain on drug testing during the Olympics. The result was that on Sundays, up to half of all drug tests did not take place because athletes could not be found at the athletes’ village or competition venues due to lack of support, training and information given to chaperones, whose job it was to notify athletes of testing.

Apart from management failings, the report also blamed the failings on budget and operational cutbacks. About 500 fewer drug tests were carried out at Rio than were planned, albeit failing a drugs test at the Games themselves suggests a competitor or their aides who are not particularly conversant with the ways of covering up the taking of drugs. In addition, more than a third of athletes competing in Rio were not subject to drugs testing before the Games in 2016, and of these, nearly 200 were competing in one of the 10 high- risk sports. Despite this report, the International Olympic Committee stated a day later that the report showed that it had been a successful Olympic Games with a successful anti-doping programme.

Doping issues are not, of course, confined to the Olympic Games. The Tour de France has not exactly been immune from them, and neither has tennis or football in this country, to give just three other examples. I suspect that most of us, including, not least, myself, just do not appreciate the full extent and breadth of prohibited substance-taking across different sports.

Prohibited substances, as the noble Lord, Lord Moynihan, has said, are taken to gain an advantage in sport over fellow competitors. They are taken to produce a false result which is not determined purely and solely by the skill and unaided effort of each competitor. That false result will at the very least be influenced—and at the worst determined—by the taking of a substance that improves performance unrelated to the skill or effort of the competitor concerned. It is a form of fraud. It is cheating—cheating not just fellow competitors but the public who paid to come watch the sporting event in the belief that they would see a fair competition with competitors competing on a level playing field.

The purpose of the amendment is, through a series of measures—including the creation, as in some other countries, of a criminal offence carrying, in exceptional circumstances, a custodial sentence—to throttle the deliberate and intentional use of drugs in sport by any person in this country or by any person in this country who,

“knowingly takes anywhere in the world a prohibited substance with the intention of enhancing his or her performance”;

or by any person, deliberately and intentionally, among other things, providing or administering to an athlete prohibited substances with a view to enhancing the performance of that athlete. The amendment also lays a responsibility on an organising committee.

The amendment would also require the Secretary of State to submit an annual report to Parliament which would include documenting the performance of the World Anti-Doping Agency in general in its effectiveness in preventing the offences provided for in the amendment, together with a requirement on the Secretary of State to determine whether the Government should remain a member of and continue to support the World Anti-Doping Agency.

The events before and during the Rio Olympics and the ever-increasing range of sports apparently affected by the use of prohibited substances suggest that doping in sport, including state-sponsored doping, is still not being taken sufficiently seriously by those at the most senior level who are in a position to stamp it out. The amendment is intended to toughen up our approach in this country to the serious problem of doping, including by people from this country competing, or assisting those competing, elsewhere in the world. We most certainly support it and hope that it will find favour with the Government.

[Baroness Wheatcroft (Con)]

I support the amendment. I cannot claim to be an expert on sport, but my noble friend Lord Moynihan most certainly is. His sporting legacy to this country is extraordinary, not least the performance of our team in the London Olympics, which was engineered by his work as chairman of the British Olympic Association, but also the extraordinary performance of our team in Rio. At first glance, the amendment appeared to be radical but, having heard the argument, I understand that we are lagging behind on this important front. That is not the right position for this great sporting nation to be in.

Beyond that, I fear that by not taking strong action against the use of drugs in sport, we are sending the wrong message to our youngsters, who look on sport as a career opportunity and wonderful thing, and to those who play sport as their great heroes. If people are banned from sport for a year or two and then come back, that seems to be acceptable. A prison sentence would be in a different league. That would send a message to our youngsters that this is something that they should not tolerate, and certainly not toy with. That is a very important message for this House to send. I support the amendment.

Policing and Crime Bill

Lord Rosser Excerpts

Committee: 5th sitting (Hansard): House of Lords
Wednesday 16th November 2016 Lords Chamber

[Lord Faulks (Con)]

My Lords, I am most grateful to the noble Baroness, Lady Grender, for mentioning my small part in the acceptance of revenge porn as part of the list of criminal offences that the Government accepted ought to enter the calendar of criminal offences. The Government looked carefully at this and, in many ways, some of the conduct that was embraced within so-called revenge porn was probably covered by existing criminal offences. However, it was accepted that such was the need to identify specifically this sort of behaviour that it was appropriate to include it as part of the Criminal Justice and Courts Act 2015.

While I entirely accept what lies behind these amendments and the evil that they are directed against, I think that one has to bear in mind that we have had only a very short time for this legislation to bed down. I am glad that there have been prosecutions; it appears that there was a need and the prosecuting authorities have acted accordingly. But I am not sure that I am, at the moment, satisfied that there is a need to go further in terms of definition. For example, Amendment 217 talks about threats to disclose. The Minister will no doubt correct me, but all these areas are probably covered by existing criminal law—for example, blackmail, threatening behaviour, theft or other offences. A threat may be something substantial but it may be something very trivial and we do not want to have relatively trivial matters embraced in what is often a very serious offence.

As to Amendment 218, of course, on the face of it, it seems attractive that there should be some compensation. I am a little concerned, however, about a judge in a criminal case having to assess anxiety and the degree of anxiety in terms of the appropriate quantum of damages. How is he or she going to do that? Will there be evidence from somebody expressing how affected they were, and the degree of the affection—whether, for example, it caused them to go to a doctor? There is a slight danger that we could lose sight of what is really important—a criminal offence, rather than whether there should be compensation.

Quite apart from the questions of appeal raised by my noble friend Lord Hailsham, there is some work to be done on this. On the question of appeal, surely there would be an appeal from the magistrates’ court to the Crown Court as of right, and to the court of criminal appeal in appropriate, and possibly restrictive, circumstances. It may be that in due course there would be some informal tariff, perhaps involving the Sentencing Council—but I would not like it to be thought that the criminal prosecution of matters should be used as some proxy for obtaining compensation.

[Lord Rosser (Lab)]

My Lords, I will be brief. These amendments cover a serious and disturbing issue that has received considerable publicity in recent months. The purpose of the amendments, as I understand it, is to tighten and extend the reach and scope of the law in respect of disclosure of private sexual photographs and films without consent and with malicious intent. They include new clauses on compensation and anonymity for victims. At this stage we will listen with interest to the Government’s response, including the extent to which they consider that the law as it stands is sufficient—or, alternatively, needed—to deal with any or all of the issues addressed in the amendments.

[The Minister of State, Home Office (Baroness Williams of Trafford)]

My Lords, as the noble Lord, Lord Marks, has explained, this group of amendments all relate to what is commonly referred to as revenge porn, as provided for in Section 33 of the Criminal Justice and Courts Act 2015. Amendments 216 and 217 seek to extend significantly the scope of the offence, but the Government consider that the offence is working well. I am pleased to see my noble friend Lord Faulks in his seat; as he said, there have been more than 60 convictions for the offence since it came into force in April last year.

The offence is deliberately tightly drafted to target those individuals who have disclosed private and sexual images without consent, and with the intention of causing distress to the individual depicted. We are not persuaded that a sufficiently strong case has been made for broadening the scope of the offence, as proposed by the two amendments.

The general effect of Amendment 216 would be to significantly extend the range of material that could be considered private and sexual for the purpose of the offence. Currently, the offence is drafted to capture material that is sufficiently sexually explicit that its dissemination would be likely to cause real distress to those depicted. The offence also provides that images that are photoshopped—for example, so that a non-sexual image of an individual becomes sexual—should not be covered by the offence. This is because the disclosure of such an image, though still distressing, does not have the potential to cause the same degree of harm as the disclosure of an undoctored photograph showing images of the kind referred to in Section 35(3) of the 2015 Act. The noble Lord, Lord Pannick, made some interesting observations to that end. To alter the definition of “sexual” as proposed in Amendment 216 would, in our view, unjustifiably extend the scope of the offence.

Regarding the extension of the offence proposed by Amendment 217, we see no need to capture those who threaten to post such images. The offence, rightly, deals only with the act of actually disclosing private and sexual images, as it is the disclosure of the images that causes the harm which criminalising this behaviour seeks to prevent. As my noble friend Lord Faulks says, threats to disclose could, depending on the circumstances, be captured by existing offences that tackle harassment, malicious communications or, of course, blackmail. It is also difficult to see what would be gained by including an intention to cause fear or alarm to the victim, as distress is sufficiently broad a term for these purposes. Amendment 217 also seeks to make it possible for the offence to be committed recklessly as well as intentionally. The offence is targeted at those who deliberately seek to cause distress to victims through the dissemination of private and sexual material. This malicious intent—the revenge element of revenge porn, so to speak—is a key feature of the offence and we believe it would be wrong to dilute this by applying the offence to conduct that is the result of recklessness rather than a deliberately malicious act. Similarly, the proposal to extend the offence to those who,

“knowingly promote, solicit or profit”,

in relation to revenge porn material would shift the emphasis from those who disclose the relevant images with malicious intent, the mischief which this offence is intended to address.

--- Later in debate ---

[Lord Marks of Henley-on-Thames]

My Lords, I support the amendment, although there should of course be amendments to the drafting. I accept the point made by the noble Lord, Lord Pannick, about anonymity acting to the detriment of the accused without his consent. I suggest that consideration be given to redrafting the amendment to permit the accused to waive the right to anonymity. On reconsideration, I should add that I consider my earlier intervention on the noble Viscount, Lord Hailsham, to be ill advised: the amendment does not in fact cover communication privately by police officers and I accept that it should.

There has been widespread discussion in the press of the independent review by Sir Richard Henriques into the failure of Operation Midland, the reliance placed on accounts given by, in particular, one unreliable witness and baseless allegations that had been made. Those allegations were, as has been said, permitted to do untold harm to the reputations of a number of prominent men who had given their lives to public service.

The noble Lord, Lord Pannick, reminded us that Sir Richard makes the case for increased anonymity, but his recommendation is that there should be anonymity only pre-arrest. He draws back from recommending anonymity at all stages prior to charge. His reasoning, in paragraph 1.67 of his report, is as follows:

“I consider it most unlikely that a Government will protect the anonymity of suspects pre-charge. To do so would enrage the popular press whose circulation would suffer”.

If that is the reasoning behind his conclusion, I disagree. He goes on to say:

“Present arrangements, however, have caused the most dreadful unhappiness and distress to numerous suspects, their families, friends and supporters”.

In that, Sir Richard is plainly right.

The question of when anonymity should be lost is one of balance. For my part, I do not believe that protection ought to be lost at the date of arrest, when the arrest can be made—as the noble and learned Lord, Lord Judge, points out—on reasonable suspicion only. I accept that the consideration that comes into play is whether, as he suggests, anonymity should apply only to sexual offences, rather than more widely. In my view, the particular position relating to sexual offences justifies the difference when we weigh the balance. He is of course right to say that what needs to come into the balance is the risk of injustice flowing from anonymity, just as there may be—indeed, we know there is—a risk of injustice flowing from the exposure that comes from the lack of anonymity.

As we all know, suspicion—even reasonable suspicion sufficient to ground an arrest—can turn out to be entirely misplaced. There may be a reasonable and truthful explanation for the circumstances that give rise to the suspicion justifying an arrest. While those circumstances may demand that explanation, an arrest can legitimately take place before the suspect has had a chance to give the full explanation required. When a suspect is charged, however, it is on the basis of a different test and different circumstances. First, the police must have the evidence that they believe will sustain a prosecution and conviction, if not refuted. Secondly, the suspect will generally have had a full opportunity to give a considered explanation of the circumstances, if there is one. Public exposure damages a suspect’s family life, his privacy and his reputation—for we are talking about men predominantly. The damage is largely irreversible, even where allegations are later withdrawn or found to be baseless. Death has sometimes made the damage and injustice total.

When striking a balance between the right of a suspect to be protected from that damage and the right of the public to know, the balance tips, in my view, in favour of the public’s right to know at the point of charge, not at the point of arrest. I am not persuaded by the argument that pre-charge anonymity will prevent other victims coming forward altogether. It may be that there will be a delay in such victims coming forward and they will do so after charge, rather than after arrest. That gives some opportunity for witnesses to come forward—as in the case of the murder client of the noble and learned Lord, Lord Judge, which of course could happen in the case of a sexual offence client as well. There is delay to the stage at which anonymity is lost, but it is not lost for ever and there is no reason to suppose that others will not come forward at that stage. My noble friend Lady Brinton’s point, that there should be protection also for the victims from early disclosure until it is established by charge that there is going to be a case, is an important one. I agree with my noble friend Lord Beith that the point made by the noble Lord, Lord Pannick, on gossip and speculation, applies wherever there is going to be anonymity at any stage. The argument that we have to address is at what stage anonymity should be lost.

The only reasonable point that can be made against this amendment is that there may be cases where further witnesses might come forward with legitimate and admissible similar fact evidence which might justify the charge where otherwise no charge would be brought. However, for my part, I have concluded that such cases will be rare and that most can be met by the proviso included—though perhaps to be redrafted—in the amendment. It is a question of balance but, in my view, the possibility of similar fact evidence being lost and justice thereby being thwarted is of lesser weight than the inevitable damage caused by premature exposure of an innocent suspect’s identity.

[Lord Rosser]

My Lords, as we have seen from this debate, this issue raises strong feelings. I will say before I go any further that the overwhelming majority of those who have spoken so far will not be in agreement with what I have to say. It has not been our policy, as my noble friend Lord Campbell-Savours in effect said, to support anonymity for rape suspects before they are charged or indeed those suspected of other sexual offences. There are almost no cases, at least as I understand it, where suspects are specifically granted anonymity in this way in our legal system. I appreciate that the amendment enables a judge to remove the restriction on identifying the person concerned where they are satisfied that doing so would be in the public interest. But we have yet to be convinced that this test will not in reality lead to fewer prosecutions and fewer victims of sexual assault coming forward than is the case even now. Granting anonymity specifically for those suspected of sexual offences could imply that a person making a complaint in respect of such an offence was not to be believed in the same way as someone making a complaint involving another individual in relation to any other kind of offence, such as child cruelty.

During the passage of the Sexual Offences Act 2003, one reason we gave for not changing the law was precisely to avoid giving the impression that there is a presumption of doubt about the credibility of the complainant in sex offence cases, as well as the fact that naming a suspect in such cases can lead to other victims coming forward—as it did, for example, in the cases of Rolf Harris and Stuart Hall, and the case for a credible and successful prosecution was enhanced as a result. Many of Jimmy Savile’s victims said they thought they were the only ones, and doubted whether anyone would have believed them if they had come forward, bearing in mind the celebrity status of the offender. The position, and their approach, changed somewhat when they found out, through the absence of pre-charge anonymity, that they were not the only ones.

In the light of what has been said in the debate, perhaps it is worth stating that the victims of sexual offences have, of course, also had their lives darkened—not least when the sexual offences were committed by well- known public figures. Of course, the victims themselves rarely are well-known public figures.

I understand that the coalition floated plans to introduce anonymity for rape suspects in 2010, but after carrying out an assessment they concluded there was insufficient evidence to justify a change, and that a change would be likely to have a negative impact on justice for rape overall.

The argument is made that without anonymity, those suspected of sexual offences would suffer shame and harm to their reputation—usually as a result of how the media choose to report such cases even if the person has not been, and never is, charged with any offence. That may be quite true in some cases—more so if the police mishandle their investigation in the way highlighted in the report on the Metropolitan Police released a week or so ago. This argument would also apply, presumably, if someone were accused of murder, serious assault, child cruelty, major fraud or other forms of serious dishonesty and corruption—as we saw with the naming in the media of an alleged suspect, who had not committed the offence, in a particularly unpleasant murder case in Bristol a few years ago. The police have discretion over the naming of suspects, and should do so only when they have good reason to suspect that doing so might produce corroborating evidence that would increase the likelihood of a successful prosecution.

As for the concerns sometimes expressed about false allegations, I believe I am right in saying that the Crown Prosecution Service has found that the number of false allegations is no higher for sexual offences than for any other type of crime. Many would argue that the real problem is still the reluctance of victims to report rape and other sexual offences, and the reasons for that. It has been suggested—although I cannot vouch for this as the correct figure—that perhaps only 15% of rapes are ever reported to the police. Young people and children are targeted more than most by those who commit such offences, who are often repeat offenders. The report on child sexual abuse in Rotherham found that when offenders discovered, over time, that they could act with impunity and were unlikely to be challenged, they simply increased the scale and level of violence in their offending.

We understand why the approach called for in the amendment is being pursued. We do not argue that no case can be made for the amendment, but rather that the case that can and should be made against it is stronger and more powerful. Unless firm evidence can be produced that the terms of the amendment would not result in more perpetrators of sexual offences escaping prosecution because others who may have been the subject of similar assaults do not come forward—because they are unaware that the individual is being investigated, and instead feel that if they did come forward they would be on their own—the amendment cannot be supported.

--- Later in debate ---

[Baroness Brinton]

My Lords, 11 years ago, my life, and the lives of a number of my colleagues, friends and supporters, was turned upside down when we became the target of somebody who began by politically harassing us and then moved into criminal damage and on to stalking. It took more than three years before the case came to a satisfactory conclusion, when he pleaded guilty to five offences and asked for 68 other crimes to be taken into consideration. Eight and a half years on from his court hearing, I still find it difficult to talk about it, not least because when I arrived in court I was placed, along with the only other victim who had decided to come, within an arm’s length of the dock. It was the first time that I had seen the man since the police had charged him, although I had believed for some time before that it was him, and clearly I was right.

That unfortunate experience in my life pales into insignificance compared with the experience of many victims of domestic violence, stalking and coercive control, but it was my experience of harassment and stalking that made me join the parliamentary inquiry into stalking in 2011 and led to the amendments to the Protection of Freedoms Bill in 2012. In the House of Lords, when we were considering the Commons amendments, I cited the then Home Secretary, who had said that the amendments put forward by the Government,

“will widen the … offence to incorporate behaviour that causes the victim serious alarm or distress that has a substantial effect on his or her day-to-day life”.

When she addressed the Commons, she said that the legislation would be kept,

“under review. The last thing we want to do is to find that the legislation is being misinterpreted”.

She set out examples which were,

“to send a message to people that that is all they are”.—[Official Report, Commons, 19/3/12; cols. 546-47.]

At the time of the debate in your Lordships’ House, I and other noble Lords asked for strong evidence that the Home Office and the Ministry of Justice would ensure that the softer elements that are essential to provide victim support were put in place, such as training throughout the criminal justice system to recognise the needs of victims, not just for the police but in court, where assistants might place people, as happened in my case, in some of the situations that cause extreme difficulties for victims. I know that noble Lords who are lawyers are not surprised by delays, but there are many things that happen day-to-day in the criminal justice system that cause victims real distress. There seems often not be very much joining up of agencies, let alone police forces. The requests for training that we made in 2012 seem not to have been applied across the board. There is some good but patchy training—and it is not consistent.

The result of that is that many victims of these serious and intrusive crimes feel that their victimisation continues as the case progresses through the criminal justice system. That is despite progress in the victim personal statements scheme that arrived in 2001, witness care units, the Code of Practice for Victims of Crime, the victims’ fund, Victim Support and the restorative justice service. A number of sources, including the organisation Victim’s Voice Survey, made it clear that all these were having little positive impact on victims, who seem to be routinely failed and face revictimisation by the whole of the criminal justice system.

The hour is late and I will not go into much evidence, but there is plenty of it from these surveys and the number of cases highlighted to show the gap between these policies and the day-to-day administration of practice. Currently, some victims’ rights, though not all, are covered by entitlements in the victims’ code, which was designed to make the system more responsive and easier to navigate. The problem is that this is not legally enforceable. It is a code, not statutory guidance. It places discretionary accountability on the agencies. Victim feedback strongly suggests that agencies often fail to apply the code. Agencies which should be guided by it are aware that a failure to provide the service does not make a service provider liable in any legal proceedings.

The complaints and right to appeal process within the code is lengthy and very difficult to navigate. There is clear evidence the victims are deterred from engaging in the complaints procedures because of their complexity. This misses any opportunity to identify ongoing issues that victims are facing and to improve services.

The original victims’ code was clearly a well-intentioned document, but there was widespread agreement, including from the current Government, that it was not delivering all that had been hoped. The new code is similar to the original but makes it all the more difficult to see where improvement to services for victims might come from. There seems to be widespread failure to adhere to the guidance that the code offers, with lack of information and support for victims continuing to be a critical concern.

I should like to give an illustration. During the passage of the Protection of Freedoms Bill I spoke about Claire Waxman, who had at that point been the victim of stalking for considerably more than one decade. She reported that when, after 18 months of harassment, she first went to her local police force, the officer she met laughed at her and told her that she was making a fuss and should be flattered by the attention. She described how, in incident after incident, paperwork was missing for court and the CPS was ill-equipped to cross-examine the stalker in court because it had no idea what the case was about, as the prosecutor had received the files only a few minutes prior to the trial.

On one occasion she received a knock on the door at 10 pm from a uniformed police officer. He informed her that she was due in court the next day as a witness in the ongoing case. The court date had been moved and they realised very late at night that she had not been notified of this change. She was so shocked to be told that she was due in court the following morning that she had no time to prepare herself, or even to inform her work. However, she said that it showed her how much of an afterthought victims really are in this process.

That is a brief illustration of the evidence provided to a group of Peers at a seminar we held in October. A victims’ rights Bill introduced in the House of Commons last October by Sir Keir Starmer has all-party support. Many of the amendments that we are laying before your Lordships now are incorporated into the Private Member’s Bill. These amendments would create a balanced and fair justice system for all who participate, and should restore public confidence in the criminal justice system.

There is one other key point that I want to make. Many of the problems that victims face are due to inefficiencies in the system. If these alone were remedied, there would be a considerable saving to the costs of running the court system. I speak today for victims, but there is a much more important element here that would save the public purse an enormous sum.

We outline a statutory framework for victims’ rights. In summary, we believe that the right to information at every stage of the justice process should be natural, as should the right not to be discriminated against or prejudiced from accessing justice. There should be the natural right not to be subjected to any unnecessary delay and to challenge decisions that impact directly on the victim’s personal safety. There should be a revision of offences that can be appealed on the grounds of leniency. There is a separate amendment later on the non-disclosure of victims’ names to perpetrators in cases of serious sexual offences, where the perpetrator has targeted a stranger. There should be the right to attend and make representations to any pre-court hearing to determine the nature of the court proceedings.

I end on two incidents that were addressed at the hearing, which also set the context of why this is not just about inefficiencies in court. Alleged suspects have many rights once they are brought into a police station. They are entitled to meals, blankets, breaks, tea, coffee, doctors and, where necessary, alcohol and drug workers. All the victims at the seminar that day, when asked whether they had even an offer of tea or coffee when making their formal statements, reported that they had not.

Another incident was more about the police force involved absolutely abrogating its responsibility. A woman who was initially slapped by her husband, who had a history of domestic violence, was thrown on to the bed. He then violently raped her. Their eight year-old son came to the door and he assaulted him to get him out of the way. When the local police came to investigate, they decided that it had to be referred to three different branches of the police: to the CID for the initial slap; to the Sapphire unit for the rape; and to safeguarding for the child’s issue. The victim in this case—the mother of the child—had to make three separate statements and be kept updated with three separate sets of proceedings, and each time relive the experience.

While the victims’ code as it stands has the best of intentions, it is not good enough and we need to strengthen it. I beg to move.

[Lord Rosser]

I will be very brief, not only because of the lateness of the hour but because the noble Baroness, Lady Brinton, has already been through the case for these amendments.

The noble Baroness said that a victims’ rights Bill was introduced in the House of Commons last year by the then shadow Home Office Minister, Sir Keir Starmer, and it had all-party support. Currently, as we know, victims’ rights are for the most part covered by entitlements in the victims’ code and affected by various other initiatives in recent years. But that code is not legally enforceable and feedback from victims suggests, as has already been said, that agencies often fail to apply the code, perhaps because they are aware that a failure to provide the service does not make a service provider liable to any legal proceedings. Lack of information and support to victims are major areas of concern, with victims prioritising the right to information, protection, treatment and support as the highest priorities.

The purpose of these amendments is to place victims’ rights in a statutory framework, and the noble Baroness, Lady Brinton, has already referred to a number of those rights that are covered. The amendments also place a duty on the Secretary of State to publish and implement a strategy to provide training for all relevant professionals and agencies on the impact of crime on victims.

In essence, these amendments lay down what support should be offered to victims, how that support is managed, what training is necessary to put this into place and how complaints can be pursued. I, too, hope that the Government will feel able to give a favourable response.

--- Later in debate ---

[Earl Attlee]

My Lords, I have sympathy for the noble Baroness’s amendment regarding collection of ethnic minority data. I would like to pick up on the point about education. So long as we are not properly educating the Traveller community it will continue to be exceptionally difficult for it to engage exclusively in legitimate economic activity.

[Lord Rosser]

My Lords, I will add a few brief comments to what has been said, without seeking to repeat the arguments which have already been made. The noble Lord, Lord Alton, may have been quoting from a letter, dated 2 November, which the deputy chief constable of the Cheshire Constabulary, who is the NPCC lead for Gypsy, Roma and Traveller issues, wrote to Elizabeth Truss at the Ministry of Justice. In this, she drew attention to the amendments to the Bill which we are discussing tonight. I will give a further quotation from the letter. She says:

“It is my firm belief that the lack of robust and reliable data on the Gypsy and Traveller population is a major barrier to developing a coherent understanding of these communities and their social, economic, education and welfare needs. Updating the ethnicity monitoring systems in youth justice to include Gypsies and Irish Travellers would be an integral step in helping us to address the disproportionate number of Gypsy, Roma and Traveller children in both Secure Training Centres and Youth Offender Institutions”.

She concludes her letter to Elizabeth Truss by saying that:

“I hope you and your Department are able to support the amendments”.

I hope that when the Minister replies she may be able to tell us what Elizabeth Truss’s response is to that request from the NPCC lead for Gypsy, Roma and Traveller issues to support the amendments that we are discussing this evening.

I have also got a copy of a letter which the chairman of the Youth Justice Board for England and Wales sent very recently to Kate Green MP, in response to a letter that she had written to him about the collection of data on the number of Gypsy and Traveller young people in the justice system. He says in his reply that:

“The YJB currently records the ethnicity of young people in the youth justice system using the 2001 census categories, which does not include Gypsy, Traveller or Romany (GTR) as a category. Consideration has been given to changing information systems to capture the number of GTR young people but it is too costly at present to make the required changes to existing local and central case management systems to make this possible. This position will be reviewed as new IT systems are developed and implemented”.

I am not sure that that statement holds out a great deal of hope. Perhaps in her reply the Minister could say something about what the costs would be of making the required changes to the existing local and central case management systems to achieve the objective being sought, so that we can all form a view of whether that is too costly or not.

I also ask the Government to respond to one other thing. Since the position will, apparently, be reviewed as new IT systems are developed and implemented, are we talking about new systems that will be developed and implemented within the next six months, the next six years or the next 60 years? Once again, the letter does not make that clear. It is interesting that the letter from the chairman of the Youth Justice Board for England and Wales then goes on to assert that,

“it is not the case that no data exists in this area”.

He then refers to the fact that:

“The YJB and HM Inspectorate of Prisons publish an annual report, Children in Custody, based on surveys of children in Young Offender Institutions (YOIs) and Secure Training Centres (STCs)”.

That is an interesting observation since, as I understand it, certainly on at least one previous occasion the relevant Minister has expressed the view that, as not all young people return a completed survey, they cannot determine the actual number of GRT young people held in YOIs and STCs, or even know if the sample is representative. That would suggest that on previous occasions the Government have not regarded the data contained in Children in Custody—in those annual reports—as necessarily being particularly reliable or particularly helpful.

Like others, I very much hope that the Government will be able to give a helpful response to this amendment. If the argument is going to be all about the cost of doing it, we will really need to ask the Government for a full breakdown of those costs and when they expect to rectify the situation so that we can all form an assessment of the validity or otherwise of that particular argument.

Policing and Crime Bill

Lord Rosser Excerpts

Report: 1st sitting: House of Lords
Wednesday 30th November 2016 Lords Chamber

Moved by

[Lord Rosser]

4: Clause 6, leave out Clause 6

[Lord Rosser (Lab)]

My Lords, I will speak also to our other amendments in this group: Amendments 12, 14 and 18. First, I acknowledge that the Government have moved, through amendments of their own, to improve the very weak and, frankly, in parts non-existent consultation arrangements provided for in the Bill, where a police and crime commissioner seeks to become the fire and rescue authority. We welcome that there is now a requirement to consult with those representing employees affected by the proposals.

However, the Government have not gone far enough to ensure that consultation is meaningful and that gaps do not exist through which a maverick PCC could seek unjustifiably to restrict or curtail the process—and neither are all the considerations covered that a PCC should be required to address if they wish to become the fire and rescue authority. Accordingly, we have put down Amendments 12, 14 and 18 to government Amendments 11, 13 and 17, and we regard our amendments as being part of a single group.

Government Amendment 11 places a requirement on a police and crime commissioner to,

“publish, in such manner as the commissioner thinks appropriate, the commissioner’s response to the representations made or views expressed in response to those consultations”.

In reality, that means that the commissioner could publish very little about the nature of the representations made and views expressed to him or her under the consultation—perhaps not least by those with strong reservations about the PCC becoming the fire and rescue authority. In being required only to publish a response, the commissioner could be very brief and not actually respond to the specific points and arguments made under the consultation.

Our amendments provide for the commissioner to publish, among other things, copies of each representation made and a summary of views expressed under the consultation on the proposal to become the fire and rescue authority. The amendments also provide for the commissioner to set out why the benefits claimed by becoming the fire and rescue authority cannot be achieved by other forms of collaboration, bearing in mind the emphasis placed in the Bill on improving collaboration between services, which we support.

The government amendments provide that consultation on a proposal from the police and crime commissioner also to be the fire and rescue authority should be carried out in such manner as the relevant police and crime commissioner thinks appropriate. Our amendments seek to be a bit more specific, since there may well be very differing views among police and crime commissioners on what constitutes an appropriate manner in which to consult. Presumably there must be some minimum requirements, and our amendments provide for a period lasting not less than 56 days and a requirement before the start of consultation to produce a draft public proposal, a schedule of public meetings and an invitation to make written submissions.

The government amendments provide for the Secretary of State to publish the independent assessment of a proposal from a PCC to become the fire and rescue authority. Our amendment provides, in addition to what the government amendment says, that it should be published at least one month before an order under Section 4A is made, to make sure that it is published a reasonable period of time before the order is made rather than very close to or even after the order is made.

Of course, I hope that the Government will accept the amendments to which I have referred. However, in the event that that is not their intention, I very much hope that the Government, having heard the points I have made and the concerns that lie behind them, and thus the amendments we have put down, might be prepared to reflect further on this matter and consider whether they could at least come some of the way to addressing some, if not all, of the concerns we have raised by putting down further amendments of their own.

We still have Amendment 4, which seeks to delete the clause that enables a police and crime commissioner to be the fire and rescue authority. I want to make it clear that our opposition to this enabling power in the Bill still stands. I do not wish to detain the House longer than necessary by repeating in detail all the points that we made in Committee and that have led us to our view—but those points still stand. Included among them is the fact that fire and rescue service boundaries are not always in line with PCC areas, and the provision for PCCs to become the fire and rescue authorities assumes that the police organisational structure is, and will be in the future, the most appropriate for the fire and rescue service when already evidence exists that that is not considered to be the case in at least some areas. In our view, the emphasis should be on closer collaboration, which is provided for in the Bill, and not on potentially hostile takeovers.

However, what I want to raise in a bit more detail is the potential impact on fire and rescue service personnel and members of a police force if the PCC becomes the fire and rescue authority and, in particular, the implications if the single-employer model is introduced. I have been told—as opposed to knowing it for a fact myself—that the Staffordshire police and crime commissioner has already prepared a business case, at least in draft, for becoming the fire and rescue authority. As I understand it, that involves adopting the single-employer model and harmonising terms and conditions of service. Apparently, the target date for the takeover of responsibility for the relevant fire and rescue service in this case is April next year—namely, in just over four months’ time. If that is the target date, it immediately raises questions about the consultation process that is likely to be adopted—concerns which I have already sought to express in more generalised terms in what I have said so far.

The terms and conditions of service for firefighters are covered by a national agreement; national bargaining applies. Those terms and conditions are set out in what I believe is referred to as the Grey Book, and they cover not just issues relating to pay and hours but disciplinary arrangements and procedures, as well as pensions. What assurances can the Government give—either now or subsequently in correspondence—that, single-employer model or not, the terms and conditions for firefighters will continue to be determined through the current bargaining procedures and that they will continue to be national terms and conditions, including in a situation where the PCC is also the fire and rescue authority?

When the coalition Government presented their Bill providing for the introduction of police and crime commissioners, the key argument they advanced was that nobody knew who was on the then police authorities, what their responsibilities were or how to contact them. The Government argued that PCCs would be visible, accessible and accountable in a way that did not apply to police authorities. If the intention now is that PCCs who become the fire and rescue authority should be able, if they choose, to move away from national terms and conditions of employment under a single-employer model, that is not a power, role or responsibility which, as I recollect it, the Government cited when making their case for the introduction of PCCs.

I hope that the Minister, as well as giving what I hope will be a helpful response to the three amendments to which I referred earlier, will be able to clarify the position in relation to a PCC who becomes the fire and rescue authority—and, in particular, where they propose to set up a single-employer model, what the position will be in relation to the national conditions of service that currently apply for both firefighters and members of the police force.

--- Later in debate ---

[Baroness Williams of Trafford]

I hope I have outlined clearly that the Home Secretary would take a view on this issue and on all representations that have been received when making her decision.

[Lord Rosser]

I, likewise, ask the Minister for some clarification of what she has just said. Am I right in saying that under the single employer model and the harmonising of conditions—if there is to be such—we could end up with different rates of pay, different conditions of service and different disciplinary procedures for firefighters and members of police forces in different PCC areas: that there could no longer be national rates and national conditions of service? That is what I have read into the Minister’s response, because it depends on whether a PCC decides to continue to have conditions of employment determined by the national bargaining body, or whether the police and crime commissioner who has become the fire and rescue authority decides he or she wants to bargain with their own employees in the fire and rescue service and, presumably, the police service, if it is harmonising conditions. Is that a fair interpretation of what the Minister said?

[Baroness Williams of Trafford]

Before Third Reading I will write to the noble Lord and to all noble Lords who have taken part in the debate, and distribute that response to the House. What I said was the terms and conditions of firefighters and the control staff are negotiated on a UK-wide basis via the National Joint Council, but the NJC has no statutory basis and it is for the PCC-style FRAs to decide whether to remain members. I will write to the noble Lord before Third Reading to outline more detail on what that might look like.

[Lord Rosser]

I take it that the noble Baroness is going to write, and I am very grateful to her for saying that, if necessary, that means we could come back to this issue on Third Reading. I also ask, genuinely for clarification, and I am sorry I did not pick up the Minister’s response on Amendments 12, 14 and 18 first time, but on Amendment 12, which sets out a number of requirements relating to consultation over what documents should be published and why the benefits could not be achieved through other forms of collaboration, did I hear correctly the Minister say that those requirements would be included in guidance? I do not know whether that will be guidance or regulations.

[Baroness Williams of Trafford]

I did say guidance.

[Lord Rosser]

So what I have laid down in Amendment 12 will be included in guidance.

[Baroness Williams of Trafford]

I agreed that the matters that the noble Lord listed would be covered in guidance.

[Lord Rosser]

As I understood it, the Minister did not extend that to the items I covered in Amendments 14 and 18. I am seeking to clarify, not to pursue the argument again, that that statement of what would be covered in guidance relates to what I have in Amendment 12. As I understood what the Minister said, that did not extend to Amendments 14 and 18. I am simply trying to clarify what was said.

[Baroness Williams of Trafford]

I certainly gave that commitment on Amendment 12. I now have all my pages completely out of kilter, but I do not think I gave that commitment on—was it Amendment 14?

[Lord Rosser]

It was Amendments 14 and 18.

[Baroness Williams of Trafford]

Amendment 18 is a matter for the Home Secretary.

[Lord Rosser]

Am I also right—I am genuinely seeking clarification—that what the Minister helpfully said on Amendment 12 did not apply to Amendment 14?

[Baroness Williams of Trafford]

Unfortunately, I cannot find Amendment 14 here, but we have undertaken to work with the Association of PCCs to address in guidance the issues raised by the noble Lord in Amendment 12. Amendment 18 is a matter for the Home Secretary.

--- Later in debate ---

[Lord Rosser]

I would be more than happy if the Minister wishes to write to me to confirm. I am genuinely seeking clarification, rather than trying to reopen the debate.

[Baroness Williams of Trafford]

The issues raised in Amendments 12 and 14 will be addressed in guidance.

[Lord Rosser]

So there is an issue of a period over which consultation shall last. The other matters will be covered in guidance. Is that guidance that will go through this House in the form of regulations, or is this guidance that we will not see until it is published?

[Baroness Williams of Trafford]

I think that this may be one area of detail that I could discuss and correspond with the noble Lord over between now and Third Reading. He and I can meet before Third Reading.

[Lord Rosser]

That is a helpful response and I take it in the spirit in which it was said. I hope that the Minister will accept, bearing in mind that she has indicated—I do not want to make things difficult—that it appears to apply to Amendments 12 and 14. To put it bluntly, if that does not prove to be the case we can come back at Third Reading.

[Baroness Williams of Trafford]

Yes, and I hope that it would never be interpreted that I will not follow through on something I say at the Dispatch Box, because I most certainly will meet the noble Lord and discuss the finer detail of the guidance before Third Reading.

[Lord Rosser]

I assure the Minister that she is about the last person that I would ever suggest would appear at the Dispatch Box and make a statement that she did not mean or which was misleading.

In light of what has been said, I beg leave to withdraw the amendment.

Amendment 4 withdrawn.

--- Later in debate ---

[Lord Clinton-Davis (Lab)]

I speak following the very courageous and relevant speech that we have just heard. I do not think that there can be any possible objection to strengthening the law, which is what is proposed. There can be no dispute at all that corrupt relationships between the police and newspapers are highly damaging to both, and they are unacceptable to the public, who must be able to trust both. In a democratic society, which I hope we are, it is absolutely vital that there should be trust in both, and the amendment simply seeks to bolster that position. I can see no objection at all to the purpose of the amendment. I ask anybody here to say what damage it could do to the law. In fact, I think that strengthening the law in this way is absolutely vital, and there should be no question about that.

For many years I practised in the criminal courts. I came across decent police officers who did not bend the truth at all, but I also came across certain police officers who were quite prepared to do exactly that, and in our society that is absolutely unacceptable. I hope that the Minister will appreciate how strongly those of us who have experience in this field feel about this.

I am pretty old now but I still attend this House, although some, including my wife, have some reservations about that. But I was particularly concerned about this issue. Everything which concerns the police is relevant to a democratic society. In my view, it is an absolute necessity as far as this is concerned. There is a gap at the moment, or there may be, that ought to be cured. Many people who have experience in this area recognise that. There should be no question about it.

[Lord Rosser]

My Lords, I will not detain the House for too long. As has been said, the amendment would require the Prime Minister to commission an independent inquiry into the operation of the police complaints system in respect of allegations of corrupt relationships between the police and newspaper organisations. It also provides that the inquiry would proceed only once the Attorney-General has determined that the inquiry, if conducted effectively and fairly, would not be likely to prejudice any ongoing relevant criminal investigations or court proceedings cases.

As has already been pointed out, in November 2012 the then Prime Minister reminded the victims of press intrusion that when he set up the Leveson inquiry he had also said that there would be a second stage to investigate wrongdoing in the press and the police, and that the Government remained committed to the inquiry as it was first established. However, real doubts about the Government’s willingness to honour that promise have arisen—hence this amendment. Those doubts have been increased by the Government’s recent decision to consult, including on whether to stick by the promises previously given by the then Prime Minister that there would be a Leveson stage 2.

Police and press relations is a significant area still to be addressed. Briefings by the police in the immediate aftermath of the Hillsborough tragedy had a profound adverse impact on the families who had lost loved ones, and on the thousands who had been at the match and returned home in a state of some trauma, only to read a few days later that the police were blaming them for the deaths of their friends and family. The media were also manipulated in the case of the Shrewsbury 24, and part 1 of the Leveson inquiry found unhealthy links between senior Met police officers and newspaper executives—links which led to resignations. There is also, on occasion, an issue around the nature of relationships between the police and the press at a more local level, where sometimes prior information appears to have been provided about a particular person to be arrested or a particular search carried out.

Honouring a repeated undertaking given by a Government through a Prime Minister, to victims in particular, and with all-party support, is the issue that this amendment seeks to address. If, having heard the Government’s response, the noble Baroness, Lady O’Neill, decides to seek the opinion of the House, we shall be voting in favour of the amendment.

[Baroness Williams of Trafford]

My Lords, I thank the noble Baroness, Lady O’Neill, for explaining the purpose behind her amendment. I also thank the noble Lords, Lord Paddick and Lord Blair, who spoke of their own experiences around this issue. As the noble Baroness explained, Amendment 48 would require the Prime Minister to proceed with what is colloquially referred to as the Leveson 2 inquiry into the relationships between the police and the media.

It is of course vital that the police take seriously their role, both in maintaining their own reputation and integrity and in protecting the community that they are meant to serve. However, given the extent of the criminal investigations related to this issue that have taken place since the Leveson inquiry was established—as the noble Lord, Lord Blair, referred to —and given the implementation of the recommendations following part 1, including reforms within the police and the press, the Government must now consider whether proceeding with part 2 of the inquiry is appropriate, proportionate and in the public interest. The Government are therefore seeking the views of the public and interested parties, including those who have been the victims of press abuse, through the public consultation that commenced on 1 November. The consultation seeks views on whether proceeding with part 2 of the Leveson inquiry is still appropriate, proportionate and in the public interest. As the last of the relevant criminal cases has recently concluded, the Government believe that it is now time to take stock and seek views on the various options. Submissions received from this consultation will consequently help to inform the Government’s thinking. The consultation closes on 10 January. Given the ongoing consultation, I respectfully suggest to the noble Baroness that this is not an appropriate matter for further legislation.

The Government will reach a view on the way forward having regard to the views expressed in response to the consultation. If we conclude that the inquiry should go ahead in its current or a modified form, the Inquiries Act already provides the mechanism for this, so again this amendment is unnecessary.

Noble Lords will also want to take into consideration the fact that part 1 of the Leveson inquiry cost £5.4 million. We can expect part 2 of the inquiry, should it go ahead with its current terms of reference, to cost a similar amount, so this amendment has very real financial implications, as my noble friend Lord Hailsham said.

My noble friend Lord Deben talked about three issues—the promise, the necessity, and the power of the press and its closeness to the constabulary. In terms of the promise, the Government delivered the cross-party agreement by establishing the Press Recognition Panel by royal charter, and legislating for the incentives in the Crime and Courts Act 2013. The time is now right to consult further on these specific areas of part 2 of the inquiry and Section 40, given the time that has elapsed since the Leveson inquiry was set up and the changes that have taken place. It would not be fair to the victims of press intrusion to take a decision based on facts and a situation from five years ago without reflecting on the position today, to make sure that we get the right result and that there are the right protections. We will need to see what comes out of the consultation, as I have said, but ultimately, it is for the Government to take decisions on both matters.

Parliament will clearly need to be involved if the proposed way forward were to repeal Section 40, but we need to wait and see the responses to the consultation. On part 2 of the inquiry, we will of course consult the chair of the inquiry, Sir Brian Leveson, before any decision is made on the future of the process.

In conclusion—

--- Later in debate ---

[Lord Rosser]

My Lords, I do not wish to repeat all that has been said, but I would like to raise one or two points. The first refers to the statistics on the use of Section 136 of the Mental Health Act in 2015 and 2016 to which the noble Baroness, Lady Walmsley, has already referred. They show some surprising discrepancies between police force areas on Section 136 cases. For example, Hertfordshire and Merseyside are the two police force areas in which there has been zero use of police cells under Section 136. However, in Lincolnshire, police cells were used under the Section 136 powers on 173 occasions during 2015-16, in the context of a total usage under Section 136 on just 368 occasions. That is a staggeringly high percentage. Equally, one could go through the whole list and point to considerable discrepancies. Surprisingly, although one might have thought that the figure for the Metropolitan Police would be pretty high, the number of occasions in 2015-16 on which people were placed in police cells under the powers in Section 136 was apparently 17, in the context of a total figure of 3,693.

I cannot understand why we have these discrepancies, and I would appreciate it if the Minister commented on that. Is it really about suitable places being available in these areas, or a lack of co-ordination or willpower, or a lack of priority being given to avoiding the need to use police cells? Some response from the Government on that point would be extremely helpful, and extremely interesting.

I want to refer to the letter of 25 November 2016 that the noble Baroness, Lady Chisholm of Owlpen, sent to the noble Baroness, Lady Walmsley, to which the latter has already referred. It would be helpful—to me, at least—to have some clarification of what parts of the letter mean. It states:

“It is … our intention that the regulations make clear that certain situations, in and of themselves, do not justify use of a police station, for example, because there is no health based place of safety available at that time. Our expectation, which will be reinforced in the guidance that will support the regulations, is that there should be local plans in place to deal with this and other contingencies”.

What does the reference to,

“local plans in place to deal with this and other contingencies”,

mean? Does that mean that places have to be provided, or something else? The letter continues:

“A police station will only be used as a place of safety if it is considered to be the best and safest way to manage a particular individual in the interests of all concerned”.

But what happens if no health-based place of safety is available at that time? Does the sentence I quoted mean that in that situation, if no such place of safety is available, a police cell can be used? Other references in the letter suggest that that would not be the case, and that, in effect, a police cell could be used only when the individual was considered to be a danger to themselves or to others. Again, it would be very helpful to have some clarification.

I may not have heard the noble Baroness, Lady Walmsley, properly—I am afraid I am all too good at that—but I thought, and I may be doing her a disservice, that she said that the Government had indicated that they intend to reduce to zero the use of police cells. If so, may I have confirmation of that, because I do not think the letter of 25 November 2016 says that? Of course, the statement:

“A police station will only be used as a place of safety if it is considered to be the best and safest way to manage a particular individual in the interests of all concerned”,

still leaves open the possibility of using a police cell, and would not be consistent with the Government’s intention, if it is their intention, in the long term—one hopes in rather less than the long term—to reduce to zero the use of police cells.

I would like to raise two or three other points related to treating people in a situation of mental health crisis. Clause 80 would reduce the permitted period of detention in any place of safety—not just police cells—from 72 hours to 24 hours. Of course, one could argue that 24 hours is still quite a lengthy period for individuals to be detained prior to an assessment of their mental health, wherever they are detained. The proposals do provide for a further 12-hour extension of that detention period. As has already been pointed out, individuals with urgent mental health needs have just as much right to acute and emergency health care as anyone else. If any other forms of emergency health care were provided within a window of only 24 to 36 hours, it would probably provoke some highly adverse comment. Did the Government consider bringing the time limit down further, to 12 hours, say, with the possibility of extending detention by up to a further 12 hours on the authority of, for example, the registered medical practitioner responsible for the person in question’s examination under the Mental Health Act?

I want also to refer to the position—or lack of it—of independent mental health advocates. As I understand it, subject to other powers in the Mental Health Act, they are available to provide independent advocacy and advice to individuals such as those liable to psychiatric detention, or those who have received community treatment orders. Among other important functions, independent mental health advocates help individuals to obtain information about their detention or treatment, and support them in understanding what is happening to them. But as I understand it, individuals detained under Sections 135 and 136 of the Mental Health Act do not have a right to an independent mental health advocate. Surely, detention in any place of safety is a feature of the mental health regime, and one in which independent advocacy, advice and assistance are desirable, if not required. Why is it that individuals convicted of no crime but detained for their own safety can have no access to the independent advocacy and assistance to which they would be entitled during other mental health interventions but not under Sections 135 and 136? A related point is that the PACE codes of practice lay down a requirement to have access to an appropriate adult, but on too many occasions, this does not happen as the code of practice indicates it should.

Finally, for the purposes of the police and criminal evidence arrangements, a police intervention under Sections 135 and 136 is treated as an arrest, and any police involvement in taking a person to a place of safety generates information held by police as to that person’s mental health history, including the recording of a police intervention by way of Sections 135 or 136. The Disclosure and Barring Service provides a system whereby an individual’s criminal record may be checked and, where relevant, disclosed to prospective employers. Ordinary DBS checks result in cautions and convictions being revealed, where permitted, but under enhanced DBS checks, other information held by the police as to their involvement with that individual may be disclosed as well, where the officer responsible reasonably believes it to be relevant and that it ought to be disclosed. Police will hold information as to any arrest they conduct and any involvement they have in taking a person to a place of safety under Section 135 or Section 136. The mere fact of police intervention in response to a person’s mental health crisis is therefore liable to be disclosed. It could therefore have quite significant adverse consequences when it comes to seeking employment.

I understand that since August last year new guidelines have been enforced, requiring constables to disclose as part of such checks only records they reasonably believe to be relevant. There is guidance given relating to Section 135 that indicates that the fact of detention under Sections 135(1) and 136 of the Mental Health Act is unlikely in itself to be sufficient to justify disclosure. Sections 135 and 136 provide the police with powers to remove a person to a place of safety when the person is believed to be suffering from a mental disorder and in need of care or control. Such a detention under the Mental Health Act does not constitute a criminal investigation and should therefore be treated with great caution when considering relevance for disclosure. But, of course, police officers are not mental health professionals. There is nothing to require them to seek the advice of such professionals before making a decision as to the relevance of a person’s mental health.

There is surely a real danger that the police will continue to disclose mental health records. Where a person is processed through the criminal justice system, information relevant to criminal matters may be disclosed as part of an enhanced EBS check. However, the disclosure of an individual’s medical history is an entirely different matter. Will the Government impose a ban on the disclosure of Sections 135 and 136 detentions under criminal records checks? I hope the response to the points I have raised, if not available tonight, might be available subsequently.

[Baroness Chisholm of Owlpen]

My Lords, I am grateful to the noble Baroness, Lady Walmsley, for giving your Lordships’ House a further opportunity to debate the continued use of police stations as places of safety for adults. I think we all agree on the importance of taking someone experiencing a mental health crisis to a place of safety that will best meet their particular needs. We can also agree that, almost always, that should not be a police station, irrespective of the person’s age. But where we have not previously quite agreed is on removing outright the option of using a police station for an adult in those very rare cases where it is the judgment of the police officer on the scene that a police station is the safest place—at least initially—not just for the patient but for the public, health professionals or anyone else at risk from the extreme behaviour of the individual.

Let me make it plain that while the Government’s position is that it would be wrong and potentially very dangerous to ban outright the use of police stations as places of safety for adults, we have no intention of leaving police officers without support in making the judgment that a particular situation is of such severity that this would be the correct response. The regulation-making powers in Clause 79 will be used to set out factors relevant to the decision on whether circumstances merit the use of a police station. We envisage that these will cover a range of issues, such as how dangerous an individual’s behaviour is and how serious a risk of harm to themselves or others they represent. We will also look to include provisions to give the officer the opportunity to consult with mental health professionals if it is safe and practicable to do so.

Equally importantly, if the decision is made to use a police station, we must make sure that the individual receives all the appropriate healthcare and treatment they need while they are there. This, too, will be covered in the planned regulations. The regulations will further provide for a regular review of the individual’s condition so that they can be moved to a more appropriate place of safety if the circumstances change—for example, if their behaviour has moderated and the move is in their best interest and can be achieved without delaying the mental health assessment.

I expect that, once these provisions come into force, we will see a further substantial reduction in the use of police stations as a place of safety for adults. But it would be wrong, in our view, to assume that we can reach a point over the next few years when we can say with absolute certainty that there will never be circumstances where the use of a police station as a place of safety for an adult is an appropriate option because their extreme behaviour cannot safely be managed in an alternative place of safety. That being the case, we do not believe that the proposed new clause is an appropriate way forward. However, I want to reach the position whereby police stations are used as a place of safety only in specific, “exceptional” circumstances —and, when they are used, the person taken there must be given the right medical care.

Lots of points were raised during the debate. The noble Lord, Lord Rosser, asked why there were discrepancies in the use of police cells across police forces. There is a range of reasons why this happens. It may include different policies on accepting violent behaviour, but it is also about the fact that, as the noble Lord pointed out, in London, for instance, they are not used as widely as they are in Lincolnshire, which has seen a high rise in the use of police cells. Often that is because Lincolnshire is more rural and there are not so many places of safety available, whereas there are more in London. So there are several reasons why that could be the case.

[Lord Rosser]

Most people regard Dorset as quite rural, but the number of Section 136 detentions in police cells it had was just 10 out of a total of 429 uses of Section 136. Does that not rather knock on the head the argument that it is something to do with how rural an area is?

Policing and Crime Bill

Lord Rosser Excerpts

Report: 2nd sitting (Hansard): House of Lords
Wednesday 7th December 2016 Lords Chamber

[Baroness Chisholm of Owlpen]

My Lords, Chapter 7 of Part 4 of the Bill closes a gap in cross-border powers by providing for urgent cross-border powers of arrest by police and other law enforcement officers across the three UK jurisdictions. Amendments 138 and 140 extend these powers so that they are exercisable by immigration officers and officers of Revenue and Customs, as well as National Crime Agency officers and designated customs officials who have the powers of Revenue and Customs officers. Amendment 137 provides that the powers are exercisable by British Transport Police officers in respect of offences wherever committed in the UK.

Amendment 149 inserts a new clause to provide that all the cross-border powers of arrest will be exercisable by Revenue and Customs officers in relation to any of the functions of HMRC or Revenue and Customs officers. This means that the powers will be available in relation to both tax and customs matters, rather than being confined to tax matters as they are now. The amendments also clarify the meaning of key terms as they apply to the exercise of the cross-border powers by Revenue and Customs officers and immigration officers. These amendments further enhance the effectiveness of law enforcement across the UK, ensuring that criminals are not able to evade the law simply by crossing an internal border. I beg to move.

[Lord Rosser (Lab)]

I just raise one question on these amendments, although I readily accept that, perhaps if I had read everything sent to me, I would not be asking such questions. As the Minister said, this talks about an extension of powers to immigration officers, Revenue and Customs officers, the British Transport Police and others. Should these provisions have been included earlier in the Bill and it has just been realised that they were not there, hence these amendments being brought forward, or is this some completely new power? If so, what has been happening up to now? What have been the consequences of not having these powers? How detrimental has that been?

[Baroness Chisholm of Owlpen]

No, this is just closing the gap that we realised was there earlier on. It is not new.

--- Later in debate ---

Moved by

[Lord Rosser]

157: After Clause 110, insert the following new Clause—
“Police and crime commissioners: parity of funding at inquests
(1) Where the police force for which a police and crime commissioner is responsible is an interested person for the purposes of an inquest into—(a) the death of a member of an individual family, or(b) the deaths of members of a group of families,under the Coroners and Justice Act 2009, the commissioner has the duties set out in this section.(2) The police and crime commissioner must make recommendations to the Secretary of State as to whether the individual family or the group of families at the inquest require financial support to ensure parity of legal representation between parties to the inquest.(3) If a police and crime commissioner makes a recommendation for financial support under subsection (2), then the Secretary of State must provide financial assistance to the individual family or the group of families to ensure parity of funding between the individual family or the group of families and the other party to the inquest.(4) The individual family or the group of families may use funding authorised under this section solely for the purpose of funding legal representation at the inquest.(5) In this section, “interested person” has the same meaning as in section 47 of the Coroners and Justice Act 2009.”

[Lord Rosser]

My Lords, the purpose of this amendment and its associated new clause is to establish the principle of parity of legal funding for bereaved families at inquests involving the police. Of course, we debated this in Committee.

The lack of such funding and the associated injustice was highlighted by the somewhat sorry saga of the Hillsborough hearings, and the extent to which the scales were weighted against the families of those who had lost their lives. Publicity was given to the issue because of the high-profile nature of the Hillsborough tragedy and the steps that were taken in its aftermath to pin the blame for what had happened on supporters at the game, perhaps in an attempt to cover up where responsibility really lay, and which emerged only years later.

The other week, according to the media, the coroner dealing with the first pre-inquest hearing into the 21 victims of the 1974 Birmingham pub bombings backed applications for their bereaved families to get legal funding for proper representation. He commended the application, said he did not have the power to authorise funds and commented that for those families who wanted to be legally represented, there was a compelling case for proper legal representation. However, inquests at which the police are legally represented are not confined to major tragedies such as Hillsborough; numerically, they are more likely to cover the death of a member of an individual family.

Many bereaved families can find themselves in an adversarial and aggressive environment when they go to an inquest. They are not in a position to match the spending of the police or other parts of the public sector when it comes to their own legal representation. Bereaved families have to try, if possible, to find their own money to have any sort of legal representation. Public money should pay to establish the truth. It is surely not right, and surely not justice, when bereaved families trying to find out the truth—and who have done nothing wrong—find that taxpayers’ money is used by the other side, sometimes to paint a very different picture of events in a bid to destroy their credibility.

In the case of Hillsborough, the Lord Chief Justice made a specific ruling when he quashed the original inquest. He said he hoped that given that the police had tainted the evidence, the new inquest would not degenerate into an adversarial battle. However, that is precisely what happened. If there is to continue to be an adversarial battle at inquests involving the police, we should at least ensure that bereaved families have the same ability as the public sector to get their points and questions across—and frankly, in the light of what can currently happen, to defend themselves and their lost loved ones from attack and, if necessary, to challenge the very way in which proceedings are conducted. This is a bigger issue than simply Hillsborough, since it relates to the situation that all too often happens to many families but without the same publicity as Hillsborough.

In response in Committee, the Government accepted that all would sympathise with the intention of the amendment. They went on to say that the former Home Secretary had commissioned Bishop James Jones to compile a report on the experiences of the Hillsborough families, and that we should wait for his report before considering the issues further. Clearly, the coroner at the pre-inquest hearing into the 21 victims of the 1974 Birmingham pub bombings did not feel it necessary to wait for the Jones report before expressing his views on the application for funding for proper legal representation.

The Government were asked in Committee for clarity on the scope and terms of reference of Bishop Jones’s inquiry and whether it would look not only at the circumstances where large numbers of families are potentially involved but at situations where one bereaved family may be traumatised by what has happened to the victim, and faces the full panoply of legal representation by a police force that is an interested person for the purposes of an inquest into the death of a member of an individual family. The Government replied that they would see and respond to Bishop Jones’s review in due course, but added that he was still considering the terms of reference for his Hillsborough review with the families and intended to publish them shortly. That suggests that the outcome of the review is some way away and will be much orientated to Hillsborough, rather than to the issue of funding at inquests generally where the police are represented.

In Committee, the Government also said that the amendment would place a significant financial burden on the Secretary of State. That may not necessarily be the case since the requirement for parity of funding, where the police are represented at taxpayers’ expense, may lead to a harder look at the level and extent of representation required by a police force at an inquest, or indeed whether in some cases such legal representation is really needed at all. In any case, the lack of the terms of this amendment did not prevent the significant amount of funding that finally had to be provided in relation to Hillsborough—which I think the Government said amounted to £63.6 million. So even without this amendment, because of the way in which the situation was handled, that was apparently the amount that they ended up paying out.

The Government also raised what they themselves described as technical issues with the amendment, but accepted that those were detailed points and secondary—an acknowledgement, I suggest, that they could be addressed if necessary. We surely do not need further delay for the outcome of an inquiry where the terms of reference have apparently not even been finalised, where there is little likelihood of a speedy report and where the Government’s commitment is only to consider the review in due course. Despite the Government saying in Committee that all would sympathise with the intention of the amendment, there is no commitment even in principle to address the issue of inequality in funding for bereaved families at any time, yet alone within a credible and realistic timescale that shows that this is a matter of some priority. I suggest that we need to act now to change a process and procedure that appears at times to be geared more to trying to grind down bereaved families than to enabling them to get at the truth and obtain a feeling that justice has been done. I beg to move.

[Viscount Hailsham (Con)]

My Lords, I regret to say that I cannot support this proposed new clause, although I have a great deal of sympathy with the thinking behind it. I am quite sure that we should move to a situation where, in appropriate cases, there could be parity of funding. Where I differ from the noble Lord is in the suggestion in the proposed new clause that it should be the police commissioner who makes the recommendation. In my view, it should be the coroner. The truth is that we are dealing with a judicial process, and clearly some people will want to be represented, but whether or not what they have to contribute is relevant is something that only the person in charge of the judicial process can really determine, and that is the coroner. He alone can have a clear view of the issues and the relevance of the participation of the relevant parties. Also, we are really in the process of people making applications for funding that may themselves be resisted. There has to be a process whereby those submissions can be determined. It seems to me that that has to be the coroner.

I point out just two other considerations. I can conceive of circumstances in inquests where the police commissioner has a conflict of interest—either that he or she may be the subject of criticism in the course of the inquest, or that he or she might seek to take regulatory action against chief officers as a result of the inquest. That is a potential conflict of interest that we need to reflect upon.

Lastly, we need to entrust this process to an independent figure. The elected police commissioner is not an independent judicial figure; indeed, as he or she comes to the end of their elected term they may have every sort of personal reason to bump large wads of cash to people coming along to apply for it. It is not a happy situation. If the noble Lord, Lord Rosser, were to come forward with a proposal to the effect that the coroner should be in a position to make these recommendations, I would be happy to support it subject to any contrary argument. But as to the proposal that the police commissioner should trigger the recommendation, I absolutely cannot support it.

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[Baroness Williams of Trafford]

I am not disagreeing with anything that noble Lords have said. I have said that, in the light of the review by Bishop Jones, this is not the time to press the amendment. I hope, on that note, that the noble Lord will withdraw his amendment.

[Lord Rosser]

I thank all noble Lords who have spoken in this debate and will just make one or two comments on what the Minister had to say in reply. What is recorded in Hansard is that,

“the former Home Secretary commissioned Bishop James Jones to compile a report on the experiences of the Hillsborough families”.

It does not say there that he has been asked to compile a report on the much wider issue raised in this amendment. As far as the timescale is concerned, I can only repeat what the Government said in Committee not so long ago, on 2 November, which is that Bishop Jones has only reached the stage where:

“He is considering the terms of reference for his review with the families”—

presumably the Hillsborough families—

“and intends to publish them shortly”.

He must be some way from that, if it is going to be a detailed report looking at the situation as a whole, rather than just the Hillsborough situation. Certainly, if there is a suggestion that he is going to publish something within a very few months, it would suggest very much that it is going to be concentrated on what happened at Hillsborough and the experience of the Hillsborough families, and not on the much wider issue covered in this amendment of representation for bereaved families at inquests generally where the police are legally represented. The issue of costs has been raised by the Government, which must raise some further doubts. I refer again to what the Government said on 2 November, which is that the Government wish to,

“put on record that these amendments would place a significant financial burden on the Secretary of State … The cost of the legal representation for the 103 families at the fresh inquest into Hillsborough amounted to £63.6 million”.—[Official Report, 2/11/16; cols. 757-59.]

The Government incurred that cost without the terms of this amendment being in operation. But it is quite clear that cost is a major consideration as far as the Government are concerned, rather than the fundamental issue of principle—parity of funding—which is addressed in the amendment. We also of course have not had any commitment from the Government in principle to what is in this amendment, and there is a reference as well to it being considered in due course.

I will come on to the comments that were made. Because there has been no indication that we can bring this back at Third Reading, I believe that we are no longer in a position where we can come back then with an amendment to our amendment. But if the issue is that this should be decided by a coroner or through some sort of judicial decision, rather than by the police and crime commissioner, and if the Government were prepared to give a commitment to bring along an amendment of that nature, I am quite sure that we would support it. The issue for us is not whether it is the police and crime commissioner making the recommendation. The gut issue here is parity of support for bereaved families at inquests where the police are legally represented. Since I do not think I have had a sufficient response from the Government, I beg leave—

[Lord Mackay of Clashfern]

Before the noble Lord sits down, I draw attention to the fact that if in due course this amendment were passed in a form that specified the coroner, there would still be the question of the date on which it would come into force. It would certainly be possible for the Government, if they thought it right, to wait for Bishop Jones’s report before bringing it into force. On the other hand, as we know, there are occasions on which, if the Government think they have good reason, they sometimes do not bring things that they have an option to postpone into effect at all. So it would certainly be possible to make it clear that that is what could happen here.

I hope the Government will agree that the noble Lord can bring this back without agreeing a commitment as to what should happen. It would be extremely wise for this House to have the chance to consider the amendment with the coroner in instead of the police and crime commissioner, and I hope my noble friend’s discretion is sufficient to allow her to say that the Government would not object to the amendment being brought back. Ultimately it is the House rather than any party that decides whether or not an amendment can be brought back, but I hope we would not need to go into that kind of procedure here if the Government were kind enough to say that if the amendment came forward in the shape that I am suggesting, and which the noble Lord has made clear he would be happy with, it could be considered. That would not mean a commitment by the Government to accept such an amendment, but at least it could be considered at Third Reading.

[Lord Rosser]

I can only invite the Minister to say whether the Government will indicate that they accept that I can bring this matter back at Third Reading. Having heard the views of the House, I would certainly wish to do so in the kind of terms that the House has indicated might make the amendment more acceptable. But I do not think I can do that if I am not going to get any indication from the Minister that the Government will accept that I can bring it back at Third Reading. I think I am seeing her shake her head, which I take it means that the Government will not accept it and indeed are not prepared to say anything that would enable me to bring it back. I believe that I have understood the Minister correctly, and in the light of that I really have no option but to seek to test the opinion of the House.

--- Later in debate ---

[Baroness Mallalieu (Lab)]

My Lords, I too thank the Minister for introducing Amendment 169A on the lending of a firearm by someone who has a certificate. I am well aware that this has caused a great deal of confusion and uncertainty, and I very much hope that this clear amendment will receive publicity in both the farming and the sporting press, which will mean that that confusion goes. I declare an interest as president of the Countryside Alliance.

[Lord Rosser]

Before speaking to my Amendment 169B, I would like further clarification of government Amendment 169A and the extent to which the provisions are new or simply reiterate the existing position. I am grateful for the Minister’s letter to me of 6 December, but the fact that I raise further points indicates that I do not necessarily feel that I have found the answers within that letter. I make these points simply to ascertain the answers to the questions I raise, nothing more than that.

On the face of it, this amendment appears to say that it is acceptable for a 17 year-old who does not hold a certificate to borrow a rifle or a shotgun on private premises from a lender who is aged 18 and may have had a certificate under the Act for presumably a very short period of time. It will be helpful to know if that is an accurate interpretation or whether it shows a misunderstanding on my part. If it is basically correct, what checks have to be carried out on the 17 year-old—or on any other person—to make sure that they are a suitable person to borrow a rifle or a shotgun when they themselves do not hold a certificate under the Act? How will it be known whether they have, for example, a criminal record containing offences of violence or even illegal possession of a weapon? What check will there be on that, and who will undertake it before such a person is allowed to borrow a weapon? Will it be acceptable for a person with a criminal record to be able to borrow a rifle or a shotgun under the terms of this amendment or is that precluded anyway under the lender’s certificate, to which reference is made in the amendment?

The amendment states that the borrower must be in the presence of the lender during the period for which the rifle or shotgun is borrowed. As a serious question, is that literally the case, including—to put it bluntly—if they want to go to the toilet? Does,

“in the presence of the lender”,

mean that the borrower must at all times be within the sight of the lender? What will be the penalties if a rifle or shotgun is lent and the conditions referred to in the amendment are not adhered to, and if those conditions are breached, is there any statutory requirement to report such a breach to the police or any other authority?

I would be grateful for responses to those questions, and if they cannot be provided today, obviously it will be perfectly acceptable for them to be given in correspondence subsequently. It may be that I have so misunderstood the situation that there is a one-sentence answer to the points I have raised anyway.

On my amendment, which we discussed in Committee, the issue we raised was that the cost to the police of firearms licencing was much greater than the income coming in from the licence, which effectively meant that the issuing of such licences was being subsidised. The Government spoke in terms of being able to look at this issue following the introduction of the police’s online system for handling applications for civilian firearm and shotgun certificates. In Committee, I asked when the online system would be introduced, whether it would lead to the police recovering the full costs of their role in administering applications and whether the fees would be increased in the interim to cover the costs now being incurred. The Minister very kindly undertook to write to me and I thank her for the letter which I subsequently received. The letter states that the fees have now been set at a level that will enable the police to recover the costs of firearms licensing once an online system is in place. Therefore, I ask the Minister to confirm for the record in Hansard that, once the online system is in place, there will be no further subsidising by the taxpayer of the cost to the police of firearms licensing and that the fees will be set at a level that will enable the police to recover the full costs of their role in administering applications.

--- Later in debate ---

[Baroness Williams of Trafford]

I certainly will. I would be very careful before going to my noble friend’s house, given the guns and their placement in various cars and things. I hope Viscountess Hailsham will be careful, too. I will certainly write to my noble friend on all those points.

[Lord Rosser]

I am sure the Minister’s response was clear but I did not hear it properly: did she say that the Policing Minister would write on a particular issue concerning firearms? If so, could she repeat that as I am afraid I did not pick it up?

[Baroness Williams of Trafford]

I just pointed out that we are both frustrated about this matter and that the Policing Minister will write to the national policing lead for firearms for an update on progress.

--- Later in debate ---

[Lord Rosser]

We certainly support the objectives of these amendments. As there was in Committee, there have been plenty of examples of the damage that is currently being done through these terminals and of the problems that we now face.

When the matter was discussed in Committee, the Government said that they understood the concern that such gaming machines could fuel problem gambling and that they were committed to reducing the risks of potential harms associated with such machines. They did not express any enthusiasm for adopting the amendments in Committee and, as has already been mentioned, they said that there was already a review under way which had been announced on 24 October. One assumes that the Government will be looking for the review to make recommendations which will enable them to implement the commitment they said they had in Committee to,

“reducing the risks of potential harms associated with such machines”.—[Official Report, 9/11/16; col. 1231].

Perhaps the Minister could indicate that that is how they are looking at this review and expect it to produce recommendations which will enable them to stick to the commitment that they enunciated when the matter was discussed in Committee.

As has already been called for—and I would do the same—it would be helpful if the Government could indicate now what the timescale is. They said in Committee that the call for evidence period would close on 4 December, which has now passed. I shall not ask the Government on 7 December what their conclusions are from the call for evidence but it would be helpful to know by when they will have come to conclusions. They said in Committee that, following the close of the period of the call for evidence, they would consider proposals based on robust evidence provided to assist in their decisions.

[Baroness Chisholm of Owlpen]

My Lords, as the noble Lord, Lord Beecham, has explained, these amendments would have the effect of devolving power over licence conditions for gambling premises and gaming machines to local authorities. Such conditions would, among other things, enable licensing authorities to impose minimum staffing levels on premises with such machines. I thank the noble Lord and the right reverend Prelate the Bishop of Bristol for again bringing this important matter to your Lordships’ attention. Let me emphasise that the Government are alive to the concerns about the dangers that fixed-odds betting terminals can pose.

It is worth reiterating that, as we speak, the Government are holding a review into the regulation of gaming machines, gambling advertising and the effectiveness of social responsibility measures on gaming machines, with a specific look at potential harm caused to players and communities. As part of this, we are liaising closely with the Local Government Association, among others, and we have received submissions related to the devolution and/or creation of additional powers for local authorities which we will of course consider alongside other proposals and evidence received.

I emphasise in particular that, as part of the review, the Government and the regulator, the Gambling Commission, are carrying out a thorough process which will look at all aspects of gaming machine regulation, including categorisation, maximum stakes and prizes, location, number and the impact that they have on players and communities in relation to problem gambling and crime among other things. All of these factors are potentially relevant and interrelated, and all should be considered together when looking at whether changes could or should be made to current gambling entitlements. We believe that the correct mechanism for looking at these issues is in collaboration with the regulator, the Gambling Commission, drawing on the best evidence available and subject to open consultation.

In addition, before we take any decision on this issue, we would want to ensure that the following risks were properly considered and consulted on. Any local authority which sought to exercise a power to change the number of fixed-odds betting terminals allowed on licensed betting premises would be likely to find its decision the subject of legal challenge. If these legal challenges are considered robust enough, we may be in a position of devolving a power that could not be effectively deployed. Local authorities have had a number of high-profile legal challenges from bookmakers on planning matters and may be reticent about utilising additional powers if it led to costly and protracted legal cases. We would therefore want to consult with the Local Government Association and local authorities on this issue. Again, I reiterate that the current review process is the appropriate mechanism to assess this, rather than immediately launching into these amendments to the Gambling Act.

We are also mindful of the possibility that piecemeal reform could give rise to unanticipated consequences. For example, if a local authority decides to reduce the number of fixed-odds machines, it may have the effect of encouraging operators to seek to open additional premises, furthering the problem of clustering.

We have already taken steps to tighten the controls on these machines and we have set out our plans for the review of gaming machines, gambling advertising and social responsibility which will include a close look at the issues related to fixed-odds betting terminals. I emphasise that we are taking this very seriously and that the review is looking into all these issues. When the review was announced on 24 October, it was stated:

“The review will be considering robust evidence on the appropriate maximum stakes and prizes for gaming machines across all premises licensed under the Gambling Act 2005; the number and location of gaming machines across all licensed premises; and social responsibility measures to protect players from gambling-related harm (including whether there is evidence on the impacts of gambling advertising and whether the right rules are in place to protect children and vulnerable people).

The review will include a close look at the issue of B2 gaming machines … and specific concerns about the harm they cause, be that to the player or the communities in which they are located.

In launching this review I want to ensure that legislation strikes the right balance between allowing the industry to grow and contribute to the economy while ensuring consumers and communities are protected, including those who are just about managing”.—[Official Report, Commons, 24/10/16; col. 1WS]

On the timetable for the review, as noble Lords know, the call for evidence closed on 4 December. An enormous amount of evidence was generated and there was a great deal of interest from the general public as well as from a variety of interest groups, local authorities, trade bodies and industries, and we will be looking in depth at the evidence that was submitted before considering proposals, which we hope to announce next year.

Given that this process is in train and that we are taking it extremely seriously, I invite the noble Lord to withdraw his amendment.

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[Viscount Simon (Lab)]

My Lords, I will mention just a couple of things. First, in the Serious Organised Crime and Police Act all those years ago I got an amendment through on the evidence on roadside breath-testing, which will get the readings there and then, rather than two hours or so later at the police station. I would love to see this kit eventually approved by the Home Office. It has not been approved yet. Secondly, we are talking about having a glass of wine or whatever. I am teetotal so I would not have the slightest idea but I have been told that the glasses of wine in most restaurants and pubs have got bigger. Therefore, the chance of going above the limit has also increased.

[Lord Rosser]

Unfortunately, I was not able to get to the meeting that was organised yesterday but, bearing in mind that previously the Government’s stance has been not to go down the road of these amendments, it would be of some use if the Minister made it clear whether or not, in the light of what has been said in the debate, they are going to take any note of what does or does not emerge from what has happened in Scotland, which has already reduced the limit, and whether the Government themselves are going to initiate some sort of investigation into what the impact has been in Scotland. I think the Government’s argument has been that any change should be based on hard evidence. That is one obvious source of hard evidence. It would be a bit disappointing if there was any indication by the Government that they are not actually going to pay very much notice to what does or does not happen in Scotland as a result of the reduction in the limit.

[Baroness Williams of Trafford]

My Lords, I thank my noble friend Lady Berridge for explaining the reasoning behind these amendments. I thank her and other noble Lords who came to the meeting yesterday and the one that I held—it seems like a few weeks ago, but it was probably about one week ago. I thank them for being so engaged in this issue.

Amendments 174 and 175 look to lower the drink-driving limit in England and Wales from 80 milligrams to 50 milligrams of alcohol per 100 millilitres of blood, and further to 20 milligrams for novice and probationary drivers. In responding to these amendments, I start by posing a question: what does the number 80 mean to noble Lords or, indeed, anyone who enjoys a drink? Can any noble Lord in this Chamber effortlessly equate it to pints of beer or glasses of wine, taking into account metabolic rate, age, weight and what one has eaten for lunch? I suggest that it is unlikely. Instead, I would like to think that noble Lords in the Chamber today are sensible enough to drink very little, or indeed nothing at all, before driving. Noble Lords and most of society are part of the silent, self-regulating majority that makes our roads in Britain among the safest in the world.

However, the evidence shows that it is precisely such individuals that these amendments would affect. Those unlikely to commit a drink-driving offence in the first place would be put off drinking at all. Meanwhile, no evidence exists to support the notion that reducing the limit would have any deterrent effect whatever on the most dangerous group of individuals. The noble Lord, Lord Brooke of Alverthorpe, alluded to the sick and selfish types—the high-level frequent offenders who flout the current limit and would pay little regard to a new one.

The fact is that the pattern of alcohol levels in drivers is practically the same in most countries, irrespective of their limits, and our police resources are not limitless. If we stretch enforcement activity over a wider cohort of drivers, we will effectively lower the chance of the most dangerous being caught and taken off our roads. I therefore suggest that a lower limit is likely to be counterproductive. Evidence showed that this is exactly what happened in the Republic of Ireland, where the death rate on the roads increased by about 17% when the limit was reduced several years ago. The number of drink-drive arrests stayed pretty much the same. Instead, it is the view of the Government that we must prioritise the targeting of the selfish, dangerous minority who cannot be deterred by a change in the law which they are, in any event, totally disregarding.

The drink-driving limit for England and Wales strikes an important balance between safety and personal freedom. By retaining the present limit, we are not criminalising those who drink a small amount a long time before driving; we are pursuing the most dangerous individuals. Meanwhile, our advice remains unchanged: do not take the risk by driving after you have had a drink. I think we all share a common objective of wanting to see a reduction in the number of people killed and injured on our roads as a result of drink-driving. However, I put it to your Lordships that the most effective way to achieve this is not through these amendments but through the continued robust enforcement of the current law.

In response to my noble friend Lady Berridge and the noble Lord, Lord Rosser, we will review any new evidence that may emerge, including in relation to the change in the law in Scotland. We will naturally be interested in any reports produced by the Scottish Government or Police Scotland, or any other independent research. For the reasons I have set out, we remain unpersuaded of the case for changing the current drink-driving limit. We will, however, continue to look with interest at any new data or information emerging from Scotland. On that basis, I hope that my noble friend will withdraw her amendment.

--- Later in debate ---

[Lord Rosser]

The noble Lord, Lord Moynihan, referred to Her Majesty’s Opposition. I make it clear to him that he continues to have our full support in his objectives and in the amendment that he has tabled. There is certainly no change on that score. As he said, prohibited substances are taken to gain an advantage in sport over fellow competitors. They are taken to produce a false result that is not determined purely and solely by the unaided skill and effort of each competitor but one that will, at the very least, be influenced or, at worst, determined by the taking of a substance which improves performance and creates one unrelated to the skill or effort of the competitor concerned. It is a form of fraud. It is cheating not just fellow competitors but the public, who pay to come to watch the sporting event in the belief that they will see a fair competition with competitors competing on a level playing field. As the noble Lord, Lord Moynihan, pointed out, in recent years many countries have criminalised the use of performance-enhancing drugs in sport or enacted legislation that criminalises the trafficking of such drugs.

I am curtailing what I had intended to say, but I want to refer briefly to the Government’s response in Committee. The Minister said that,

“the Government believe that rather than tackling this through legislation, it should be a matter for sports bodies”.

That statement appears to indicate that the Government would never favour making a criminal offence, as provided for in this amendment. However, as the noble Lord, Lord Moynihan, said in Committee, one cannot say that leaving this to sports bodies has exactly been a staggering success up to now. It is precisely because it has not been a staggering success that we have the problem we do. As the noble Lord, Lord Moynihan, pointed out, a number of other nations have legislated. As he also pointed out, he has taken the example of the Germans, the Italians and the Dutch, who have focused on the fact—this is crucial—that it is not just the athlete but the entourage who need to be criminalised. It is the entourage we have to make sure we—to put it bluntly—get at because they are at the heart of the problem at least as much as the athlete. The noble Lord also indicated that the deterrent effect in those countries of putting legislation on the statute book has already been effective.

That is why I come back to the response that we got from the Government in Committee. We got a clear statement that,

“the Government believe that rather than tackling this through legislation, it should be a matter for sports bodies”.

Having said that, the Minister went on to say:

“In order to have that evidence base, the Department for Culture, Media and Sport is currently conducting a cross-government review of the existing anti-doping legislative framework and assessing whether stronger criminal sanctions are required”.—[Official Report, 9/11/16; col. 1240.]

If you want to give a clear indication of the direction in which you wish to go, how can you say at one moment that the Government believe that, rather than tackling this through legislation, it should be a matter for sports bodies and then, a little later in the same speech, say that a review is taking place to assess whether stronger criminal sanctions are required and that the review is expected to be published before the end of the year?

In giving their response, I hope that the Government will at least clarify whether they believe this is a matter that should be left to sports bodies or whether they accept that there may well be a need for criminal sanctions and going down the road of criminal offences, which is a key part of the amendment that the noble Lord, Lord Moynihan, has tabled. There is not much point in talking about a review if the Government have already made up their mind—as one could interpret from the speech in Committee—that this is a matter for the sports bodies and not the law. I hope, however, that the Government will make clear that they accept that criminal sanctions and the creation of new criminal offences may well be needed to address this problem, as the noble Lord, Lord Moynihan, said in his comments on his amendment.

[Baroness Chisholm of Owlpen]

My Lords, it is a great honour to be in the presence of two such world-renowned athletes. Their Lordships look so well that it has certainly given me great inspiration to go back to the gym as soon as possible.

I am grateful to my noble friend Lord Moynihan for again raising the important issue of tackling doping in sport. As the House will be aware, the Government are reviewing the issue of criminalisation. The review is now in its final stages and we hope we will soon be in a position to publish. In finalising the report, we will naturally want to take into account the views expressed by noble Lords in this debate.

Anti-doping is a technical area and it is important to stress here that undertaking a review requires a comprehensive evidence base before considering any possible legislative options. The Government are very much alive to the issues and are actively examining what more can be done to enhance our national approach to doping, including the possibility of criminal sanctions, to uphold the highest standards of integrity in sport. We recognise that the desire to dope can be driven financially, and financial penalties are likely to be as damaging to those who cheat as a ban. Until now the Government’s view has been that, rather than through legislation, this should be a matter for sports bodies to sanction. The central question for the current review, however, is whether this approach still holds good.

It is important to underline that serious doping is already covered under existing domestic criminal legislation. Under the Misuse of Drugs Act 1971 and the Medicines Act 1968, the trafficking and supply of many doping substances is a criminal offence, carrying a penalty of up to 14 years’ imprisonment. Tough sanctions are also already in place via the 2015 World Anti-Doping Code. The code includes automatic four-year bans for drug cheats and support staff who are found guilty of doping. Such a ban forms a significant part of an athlete’s relatively short career, and it would also mean they would miss an Olympic Games cycle.

The Sports Minister, Tracey Crouch, is member of the foundation board of the World Anti-Doping Agency and attended its November meeting, where there was acknowledgement from foundation board members that the current code would be subject to further revision in the near future. There was also a call to revisit the discussion around athletes convicted of doping offences being banned from the Olympic Games.

The Government remain committed to tackling doping in sport and we will continue to work with UK Anti-Doping and our sport stakeholders to ensure that our athletes can compete in a clean sport environment. If the evidence is clear that stronger sanctions are needed, we will take action. There is a process in train—indeed, nearing completion—to ascertain whether the evidence points in the direction advocated by my noble friend. I therefore respectfully suggest to him that until we have completed the review, it would be premature to legislate on this matter in the manner proposed in this amendment. My noble friend has suggested that the Government instead pursue a different course by taking a power to implement the review’s findings through regulations. This is a tempting offer, but I still believe that would be putting the cart before the horse, and the House and the Delegated Powers Committee would rightly chastise the Government for legislating on an important area of public policy through a wide-ranging delegated power.

I recognise that my noble friend has been pursuing this issue for a great many years. I think he suggested that the leadership of WADA is conflicted and that independence is needed. At the most recent meeting of the World Anti-Doping Agency governing foundation board, approval was given for a review of WADA’s governance. Furthermore, there will also be a review on non-compliance sanctions. As a regulator, WADA needs teeth, and we are supportive of such an approach. I understand my noble friend’s frustration; none the less I hope he will bear with us for a little while longer. The Minister for Sport, Tracey Crouch, would be very pleased to meet my noble friend next week. In the meantime, I hope he will agree to withdraw his amendment.

Policing and Crime Bill

Lord Rosser Excerpts

Report: 3rd sitting (Hansard): House of Lords
Monday 12th December 2016 Lords Chamber

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I will address a couple of points briefly. First, I will address the difference between Amendments 182 and 187 on the central question of whether it is right to extend pre-charge anonymity to all offences or to sexual offences only. I completely appreciate the logic of the position adopted by the noble Lord, Lord Marlesford, and the noble and learned Lord, Lord Mackay of Clashfern. However, I believe that there is a distinction to be drawn between sexual offences on the one hand and other offences on the other.

I believe that the noble and learned Baroness, Lady Butler-Sloss, was right about this. It seems to me that a particular stigma attaches to accusations of sexual offences, which is generally more difficult to rebut where such accusations are made than where an accusation is made of another offence against the person or of offences against property. It is often far more difficult in sexual offence cases to clear conclusively and for ever the name of a suspect who is not charged than it is in the case of other offences. As the noble and learned Baroness pointed out, there is also the interest of the press in sexual offence cases. I suggest that that is why so much publicity has been given to sexual offences, particularly historical offences, in this debate and in your Lordships’ House generally.

A further point is that the nature of the evidence in sexual offences tends to be historical and tends to involve pitting the word of the claimant against the word of the victim. In those circumstances, the no smoke without fire rubric gains currency. I see this as a question of balance in which the balance in the all-offences case mentioned by the noble Lord, Lord Marlesford, comes down against pre-charge anonymity, whereas it comes down in favour of it in respect of sexual offences. It is a case of the robustness and security that we as a society allow to the presumption of innocence.

The second question I wish to address is that of the stage at which anonymity should cease. I entirely take the point made by the noble and learned Lord, Lord Judge, that the arrest is part of the criminal process and therefore that there is, generally speaking, a public right to know because the liberty of the subject is being taken away at that early stage. However, I cannot get away from the central point that arrest can be effected by a police officer on reasonable suspicion only. That reasonable suspicion frequently arises when the suspect has been given no chance to offer a full explanation which, if he were offered that opportunity, might dispel the suspicion altogether—whereas, to justify a charge, it has to be shown that there is evidence which would, if it were accepted at a trial, lead to a conviction by a court of law. I believe that that distinction is important, and that again the balance is against lifting anonymity at arrest and keeping it therefore at charge.

I then come to the question of witnesses coming forward. I completely appreciate the concern that exists around the House and outside it that witnesses should not be deterred from coming forward. But I also agree with the point made by the noble Lord, Lord Lamont, that in most cases, if evidence from further witnesses is available, it will come forward after charge, so that forbidding pre-charge publicity will delay further evidence rather than prevent it coming to light altogether. There is nevertheless a concern, raised by the noble Lords, Lord Faulks and Lord Pannick, about the possibility of pre-charge anonymity preventing genuine witnesses—notably other victims—coming forward with allegations that might lead to a suspect being charged when he would otherwise escape justice altogether. That is why the detail of the proviso inserted in the amendment of my noble friend Lord Paddick addresses this point precisely, and it is very different from the amendment that was presented in Committee.

Under this amendment a judge is entitled to say that he is,

“satisfied that it is in the interests of justice to remove or vary a restriction provided for”,

and to,

“direct that the restriction shall be lifted or shall be limited to such extent and on such terms as the judge considers the interests of justice require”.

The amendment further states:

“In considering an application … the judge shall have particular regard to the possibility that further witnesses might volunteer evidence relating to sexual offences allegedly committed by the person”.

I believe that that is the best we can do in striking a balance between encouraging witnesses to come forward and enabling them to know about allegations in appropriate cases, and protecting suspects from unjust publicity that causes the dreadful consequences of which we have all heard.

It is all a question of balance and I appreciate that it is a very difficult balance to strike. But I suggest to your Lordships’ House that the amendment proposed by my noble friend Lord Paddick strikes that balance accurately and should be supported.

[Lord Rosser (Lab)]

My Lords, I note that the noble Lord, Lord Marks of Henley-on-Thames, concluded his comments by saying that it is a matter of balance. I would concur with that view, but the balance concerned depends on which side of the fence you feel you might fall. I do not intend to detain the House for too long, since we have already had a number of Members expressing a desire to hear from the Minister. Nevertheless, I do intend to set out our position.

We do not support either of these amendments. Amendment 182 provides for pre-charge anonymity in all cases, including sexual offences, except where a magistrates’ court decides otherwise. Amendment 187 provides for pre-charge anonymity where a person has been accused of committing a sexual offence unless a judge decides otherwise. I am not a lawyer, and it may well be that my lack of knowledge of the law will be displayed in what I have got to say. But at present, as I understand it, there is an assumption of anonymity before the point of charge, except where the police decide to use their discretion in cases where they believe that disclosure of the identity of the person suspected but not charged is likely, for example, to lead to further evidence coming forward which will enable a stronger case to be made, which will enhance the likelihood of a successful prosecution.

We had a lengthy debate in Committee on the issue of pre-charge anonymity. We on this side acknowledged that a case could be made for going down this road. However, we also referred to the reality that there is evidence—for example, in sexual offence cases, where disclosing the name of the person alleged to have committed such offences has led to other victims coming forward and to a stronger case being able to be made against the accused to secure a successful prosecution. We have evidence that victims of sexual offences are often reluctant to come forward because of feelings that they will not be believed if it is their word alone against that of the alleged perpetrator. This is particularly so where that individual is a well-known and respected—at least, respected at that time—figure. We know too that there are sometimes feelings of shame about such offences, or feelings that such offences have to be tolerated, and a desire not to talk about it. These are feelings that are being expressed now with respect to the rapidly emerging scandal of sexual offences against young people in the football world—people are coming forward now that they know they are not alone.

We know too that the reporting of and convictions for sexual abuse cases are very low. Perhaps we should be spending some time considering why that is the case. We also need to take into account the fact that victims of sexual abuse—innocent people in spades—have had their lives darkened, including when the sexual offences were committed by well-known public figures. Of course, the victims themselves are rarely well-known public figures. During the passage of the Sexual Offences Act 2003, one reason we gave for not changing the law was precisely to avoid giving the impression that there is a presumption of doubt about the credibility of the complainant in sexual offence cases. I am afraid I do not wholeheartedly agree with what I think the noble Lord, Lord Paddick, was saying. Frankly, granting anonymity specifically for those suspected of sexual offences could imply that a person making a complaint in respect of such an offence was not to be believed in the same way as someone making a complaint involving another individual in relation to any other kind of serious offence, such as murder, fraud or, yes, child cruelty.

--- Later in debate ---

[Lord Paddick]

My Lords, I strongly support the amendment. While I accept what the noble Viscount, Lord Hailsham, said about overcrowding, we need to differentiate between many offences that do not deserve a custodial sentence, and in fact would be more effectively dealt with by a non-custodial sentence, and those that really need long custodial sentences, for the very reasons that the noble and learned Lord has just articulated. These are offences where, particularly in the case of repeat offences, a longer custodial sentence is needed. That is why we will support the noble Baroness should she decide to divide the House.

[Lord Rosser]

I will be brief. As the noble Lord, Lord Paddick, has indicated on behalf of the Liberal Democrats, if, having heard the Government’s reply, my noble friend Lady Royall decides to test the opinion of the House, we too shall be supporting her amendment in the Division Lobby.

I will not go through all her points but my noble friend has referred, as have others, to the issue of repeat offences. She referred to why the maximum sentence is five years at present. She referred to the level of cross-party support that there has been on this issue, and to the relationship of the maximum sentence for this offence with other offences that have a maximum of 10 years. She also made reference to the stalking orders and the Government’s announcement there, which was welcome, but of course it does not address the issue of what the appropriate maximum length of the sentence is. My noble friend also stressed that stalking costs lives in certain circumstances, and causes psychological harm. I think she has made an extremely powerful case. As I said, if she decides, having heard the Government’s response, to test the opinion of the House, we shall be with her in the Division Lobby.

[Baroness Williams of Trafford]

My Lords, I pay tribute to the work that the noble Baroness, Lady Royall, carries out as a trustee of Paladin to support and give a voice to victims of stalking.

Obviously it would be wrong of me as a Minister to comment on individual cases, particularly on sentences imposed in those cases. However, I want to express my sympathy for the victims of these crimes, which can have significant effects on their lives. It is important to consider the evidence of how sentencers are using the range of penalties available to them today. It is very rare that sentences are given that are near to the current maximum. In 2015 only three people received sentences of over three years for the Section 4A offence, and the average custodial sentence was 14.1 months. The evidence therefore suggests that judges are finding their current sentencing powers for this offence sufficient.

We must also bear in mind that, in addition to this specific stalking offence, this type of offending can be charged under other offences such as assault, criminal damage and grievous bodily harm with intent. When an offender is convicted for one of those offences, they will face a maximum penalty of 10 years for criminal damage or life imprisonment for GBH with intent.

I reassure noble Lords that the Government are taking steps to ensure that stalking is dealt with seriously. As the noble Baroness acknowledged, last Wednesday we announced plans to introduce a new stalking protection order aimed at ensuring that pre-charge options are available to the police to protect victims of stranger-stalking to the same level as victims of domestic violence and abuse. Breaches of these orders will be a criminal offence carrying a maximum penalty of five years’ imprisonment.

Alongside the work of government, the independent Sentencing Council is currently considering sentencing guidelines for intimidatory offences, including the stalking offence covered by the noble Baroness’s amendment. The council aims for its definitive guidelines to come into force in early 2018, following a consultation on the draft guidelines early next year. I encourage the noble Baroness and others to respond to the consultation.

We are also looking at the wider picture of how stalking offences are dealt with and prosecuted. Her Majesty’s Inspectorate of Constabulary and Her Majesty’s Crown Prosecution Service Inspectorate are currently carrying out a joint inspection on the effectiveness of the police and CPS response to cases involving stalking and harassment, and to examine the service received by victims.

In setting maximum penalties, we must also consider the penalties available for other, related offences. These include the other offences under Sections 2 and 4 of the Protection from Harassment Act, which can cover similar offending behaviour. We should consider carefully the potential impacts of creating such a large difference between the maximum penalties for the Section 4 and 4A offences, as the amendment proposes. Other relevant offences include assault occasioning actual bodily harm or grievous bodily harm, for which the statutory maximum penalty is five years’ imprisonment. To increase the maximum penalty for stalking offences causing fear of violence would mean that the penalty for causing fear of violence would be higher than that for causing the violence itself.

We recognise that it is often the case that raising the maximum penalty appears to be a straightforward solution to a problem. I do not think it is a straightforward solution in this case. It may be necessary in due course but, before moving to raise the maximum, we should give careful consideration to the implications for other related offences and avoid creating anomalies in the criminal law.

However, I recognise the strength of feeling about this issue and the harm that can be caused by the most serious stalking cases. The Government will therefore review the operation of the Section 4A stalking offence and related offences. We will consider the maximum custodial sentences available to the court and, in addition, consider mental health sentences to consider how best to identify and address the underlying issues that are present in the most serious cases. The review will supplement the work being done by the Home Office to prevent stalking by looking at the ultimate sanctions available for those who continue to commit offences. I hope this review will also provide further material for the Sentencing Council to draw on as it produces sentencing guidelines for stalking and related offences. Given this commitment to review the operation of Section 4A, I hope the noble Baroness will feel able to withdraw her amendment.

--- Later in debate ---

We believe that the time for hoping for reviews to come in future is clearly over. Time is late, but I have other case studies, some of which we heard in Committee. There is substantial opinion out there from victims and many parts of the criminal justice system that the treatment that victims get at the moment is just not acceptable and it is time to strengthen the legislation to make it a duty to enforce the code. I beg to move.

[Lord Rosser]

I will be brief, but my name is attached to most of the amendments which we are now addressing. A victims’ rights Bill was introduced in the other place last year by the then shadow Home Office Minister, Sir Keir Starmer, and it had all-party support. As the noble Baroness, Lady Brinton, has said, victims’ rights are largely covered by entitlements in the victims’ code and affected by various other initiatives in recent years. However, the key thing is that the code is not legally enforceable and feedback from victims suggests that it is not applied by the relevant agencies. Maybe that is because they are aware that a failure to provide the service does not make a service provider liable to any legal proceedings. Lack of information and support to victims are the major areas of concern, with victims prioritising the right to information, protection, treatment and support as the highest priorities. These amendments place victims’ rights in a statutory framework and place a statutory duty on the Secretary of State to publish and implement a strategy to provide training for all relevant professionals and agencies on the impact of crime on victims. In essence, these amendments lay down what support should be offered to victims, how that support is managed, what training is necessary to put it into place and how complaints can be pursued. These amendments have our support.

[Baroness Hamwee]

My Lords, I hope that my noble friend will understand that, given the further business to which the House has to attend tonight, I will confine myself to saying that we on these Benches enthusiastically support her amendments.

Policing and Crime Bill

Lord Rosser Excerpts

3rd reading (Hansard): House of Lords
Monday 19th December 2016 Lords Chamber

Moved by

[Lord Rosser]

12: Schedule 1, page 232, line 28, at end insert—
“(1A) Material published under sub-paragraph (1)(d) must include— (a) copies of each document provided by the commissioner;(b) copies of each representation made for the purposes of sub-paragraph (1);(c) a summary of the views expressed to the commissioner for the purposes of sub-paragraph (1);(d) the commissioner’s response to those representations and views;(e) the commissioner’s representation of why the benefits of a proposal under paragraph 1 cannot be achieved by other forms of collaboration.(1B) The consultation period must last for at least 56 days.(1C) Before the start of the consultation period the commissioner must—(a) produce a draft public proposal for the purposes of paragraph 1;(b) schedule public meetings with reasonable publicity;(c) invite written submissions.”

[Lord Rosser (Lab)]

My Lords, Amendment 12 is in essence the same as our Amendments 12 and 14 on Report, which we withdrew in the light of the Minister’s response. In accordance with that response, I have since received a letter from the Minister that covers guidance on a PCC’s business case and consultation arrangements, and on the terms and conditions of fire personnel transferring to PCC fire and rescue authorities and to chief officers under the single-employer model.

My purpose in tabling this amendment at Third Reading is to ask the Minister to cover the content of her letter to me in her response today so that it is on the record in Hansard. The letter said that government Amendment 11 on Report meant that,

“the PCC would always be required to publish a response to their consultation, regardless of whether they have local agreement or not”,

and, crucially, that,

“the guidance will fully reflect the issues covered by your amendments 12 and 14”,

on Report, which are now reiterated in Amendment 12, which we are now discussing at Third Reading. The letter also said:

“Whilst this guidance will be owned and issued by APACE”—

the Association of Policing and Crime Chief Executives—

“Home Office officials are part of an advisory group that has been set up to steer the development of the guidance and are working closely with the authors to ensure that it reflects Government’s expectations”.

In other words, the guidance reflecting the Government’s expectations will fully reflect issues covered by our Amendments 12 and 14 on Report, which are repeated now in Amendment 12, which we are now discussing at Third Reading.

If the Minister can place on record in Hansard the key parts of the letter that she sent me following Report, then from my perspective that would achieve the purpose of this amendment. In particular, confirmation of the points that I have just made, and which are referred to in the letter, about the guidance fully reflecting the issues covered by my Amendments 12 and 14 on Report, and the fact that the guidance will reflect the Government’s expectations, would be extremely helpful.

[Baroness Hamwee]

My Lords, I am glad that the noble Lord has dealt with the matter as he has and has sought to have the points put on record. I wonder whether, in replying, the Minister can confirm that in paragraph 3(d), the requirement on the commissioner to publish,

“in such manner as the commissioner thinks appropriate”,

is consistent with the description that the noble Lord has just given—and that, within statute, one cannot think something “appropriate” without it also being “reasonable”.

[Baroness Williams of Trafford]

My Lords, the noble Lord, Lord Rosser, has explained his amendment and the reasoning behind it. I am very happy to repeat the assurances that I laid out in my letter so that they now appear in Hansard.

I recognise the important principles behind the amendment and I agree that it is imperative that PCCs afford sufficient time during the consultation process to allow people properly to express their views and to provide sufficient material for them to form a proper opinion. However, it would not be appropriate to prescribe how PCCs should go about their consultation in the Bill; nor would it be appropriate for the Home Office to issue guidance on such matters. PCCs are locally accountable, and it would not be appropriate for Whitehall to dictate matters or fetter local flexibility.

I hope that the noble Lord would therefore agree with me that the points he has raised are properly a matter for guidance rather than for primary legislation—I think that was clear from what he said. As I set out on Report, the circumstances of each local consultation will be different, so we should not unduly fetter local flexibility to put in place proportionate arrangements that recognise the nature of each local business case. The amendment, while well intentioned, risks cutting across the local accountability of PCCs and risks Whitehall dictating matters that should rightly be left to local leaders.

In response to the noble Lord’s important concerns, I can, however, be very clear about the Government’s expectation that the PCC’s consultation will be undertaken in an appropriate manner and of an appropriate duration to allow local people to express their views and for the PCC to have taken them into account. There is plenty of case law relating to consultations of the kind that PCCs will be undertaking on their local business cases, and to discharge their formal statutory duty, PCCs will need to have regard to proper principles of consultation. We would expect PCCs to secure local legal advice prior to commencing a local consultation to ensure that their plans comply with the legal requirements set down by existing case law. On the point made by the noble Baroness, Lady Hamwee, about consistency, I reiterate what I said privately: I think there is consistency.

To further strengthen the advice available to PCCs, we are also working with the Association of Policing and Crime Chief Executives to ensure that its practice guidance on fire governance business cases covers the points that the noble Lord has listed in his amendment today and his previous Amendments 12 and 14. This includes comprehensive guidance on the duty to consult, the manner in which consultation should be carried out, its duration, and what arrangements PCCs should make to publish their response to the consultation.

The Government expect the guidance to address the matters to be covered in the PCC’s business case. By its nature, this must set out the PCC’s assessment of why he or she considers that it would either be in the interests of economy, efficiency and effectiveness, or in the interests of public safety, for a Section 4A order to be made. If the PCC’s proposal is based on the first limb of this test, it would follow that the business case needs to address why other forms of collaboration, outside of a governance transfer, cannot deliver the same benefits in terms of improved economy, efficiency and effectiveness.

The guidance is currently being drafted by a working group that includes representations from fire and rescue authorities and the Local Government Association. The Association of Policing and Crime Chief Executives is aiming to publish the first version in January 2017, shortly after Royal Assent. The document will continue to be updated to reflect the lessons learned from the first PCCs to develop and consult on their proposals. As it will be sector guidance, it will not be subject to any parliamentary procedure but, as I have just explained, it will be in line with the Government’s expectations. I commit also to sharing a copy of the guidance once it is finalised.

I hope that in light of these further assurances the noble Lord will feel content to withdraw his amendment.

[Lord Rosser]

I thank the Minister for her reply. I take it from what she has said that the guidance will reflect the Government’s expectations, which are that the guidance will fully reflect the issues covered by our Amendments 12 and 14 on Report and our Amendment 12 at Third Reading. Will the Minister confirm that once again?

[Baroness Williams of Trafford]

I apologise for being slightly distracted by the last thing the noble Lord said, so could he repeat it?

[Lord Rosser]

I understand that the Minister confirmed, as stated in the letter that she sent to me, that the guidance will reflect the Government’s expectations and included in those expectations are that the guidance will fully reflect the issues covered by our Amendments 12 and 14 on Report and now repeated in Amendment 12, which we are discussing, at Third Reading. If the Minister will confirm that that is the correct interpretation, I would be very grateful.

[Baroness Williams of Trafford]

I did just say, but perhaps not very clearly, that it will be both in line with the Government’s expectations and with the points made in the noble Lord’s Amendments 12 and 14—now Amendment 12. I am happy to reissue that reassurance.

While I am on my feet I wonder whether the noble Lord will indulge me because there is one aspect in the points made by the noble Baroness, Lady Hamwee, on reasonableness that I did not address. PCCs would be expected to act reasonably when determining how to consult locally on their proposal and we would expect them to have regard to relevant case law and to practise the guidance issued by the Association of Policing and Crime Chief Executives. If there is a view that the PCC has acted unreasonably when determining what appropriate local arrangements should be, there would be an option to challenge the decision via the local consultation process or ultimately through legal challenge.

[Lord Rosser]

I thank the Minister for repeating that reassurance. We have taken this matter as far as we can, and in light of her reply, I beg leave to withdraw the amendment.

Amendment 12 withdrawn.

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Moved by

[Lord Rosser]

14: In the Title, line 18, after “areas;” insert “to make provision about financial support for families at inquests in which a police force is an interested person;”

[Lord Rosser]

The House agreed to Amendment 157 on Report on the parity of funding at inquests, which does not appear to be covered by the existing Long Title. Accordingly, this amendment is to cover Amendment 157, and comes within the Third Reading principal purposes as tidying up the Bill. I trust the Government will feel able to accept the amendment in the light of the decision of this House on Amendment 157 on Report.

My name is also attached to Amendment 16 in this group. The noble Baroness, Lady Brinton, cannot be in the House today, but the House agreed to Amendments 188 to 193 on Report on support for victims and victims’ rights, which do not appear to be covered by the existing Long Title. Once again, this amendment to the Long Title is to cover Amendments 188 to 193 and comes within the Third Reading principal purposes as tidying up the Bill. I trust that the Government will feel able to accept the amendment in the light of the House’s decision on those amendments on Report. I beg to move.

[Baroness Royall of Blaisdon (Lab)]

My Lords, Amendment 15 is a tidying amendment to the Long Title and consequential to stalking offences. When I moved the amendment that was adopted by this House last week, I regret that I was not aware that it was encompassed by the Long Title, so I apologise for any inconvenience caused. I take this opportunity to say that I very much hope that the Prime Minister will look at this amendment. She has been terrific on violence against women and girls and, if she had a look at it personally, she might agree to accept it.

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Moved by

[Lord Rosser]

16: In the Title, line 29, after “detention;” insert “to make provision about victims’ rights;”

--- Later in debate ---

[Baroness Williams of Trafford]

In moving that the Bill do now pass, I shall not detain the House for long. I have felt the Bill to be a very constructive process, and in particular I thank the noble Lords, Lord Rosser, Lord Kennedy and Lord Paddick, and the noble Baroness, Lady Hamwee, as well as the genius of the noble Lord, Lord Pannick. If I ever need representation, I know where to go, as long as I have a lot of money! I particularly thank the officials, because they are not just from the Home Office; there are officials on the Bill from the Department for Transport, the Department for Culture, Media and Sport and the Ministries of Justice and Defence and the Department of Health. Last but not least, I thank my noble friend Lady Chisholm, without whom I could not have got through the Bill in such a cheerful manner. She has kept me upright sometimes late into the night and has worked so seamlessly with me. It has been an absolute joy. I wish her well. I know that she is not retiring—she is just taking life a bit more sensibly—but I shall desperately miss her by my side in the next Bill that I do.

[Lord Rosser]

I shall be very brief, but I take this opportunity to thank the Minister and the noble Baroness, Lady Chisholm of Owlpen, for the courteous and open way in which they have listened to and sought to address, within government policy constraints, the issues raised during the passage of the Bill. I seem to have received a deluge of letters, for which I am genuinely very grateful, but it rather tests the statement that somebody, somewhere is waiting for a letter—that may no longer be the case in this instance. Actually, the number of letters that we have received in the light of the debates that have taken place is a reflection that the issues have been raised, considered and responded to, and I am very grateful for that. I thank the members of the Bill team for their help. I also thank all my noble friends, especially my noble friend Lord Kennedy of Southwark, and other Members of this House who have contributed to the debates. We too wish the noble Baroness, Lady Chisholm of Owlpen, a very successful time, presumably on the Back Benches, from where I am sure she will continue to make her views known.

[Lord Paddick (LD)]

My Lords, I too thank the noble Baronesses—the Ministers—for the way in which they have conducted proceedings on the Bill, and the members of the Bill team for the help and co-operation that we have received from them. My next offer of thanks is rather controversial and probably not in accordance with protocol but I also thank the noble Lords, Lord Rosser and Lord Kennedy, for the way in which we have discussed matters, which has helped the Bill’s passage

Policing and Crime Bill

Lord Rosser Excerpts

Ping Pong (Hansard): House of Lords
Wednesday 18th January 2017 Lords Chamber

[Lord Paddick (LD)]

My Lords, I support the remarks of the noble Baroness, Lady O’Neill of Bengarve. If anybody is in any doubt about the need for Leveson 2, which was intended to be an inquiry into the potential for corrupt practice between the police and the press, let me say that, with the former Prime Minister, David Cameron, the then leader of the Opposition, Ed Miliband, and the former Deputy Prime Minister, Nick Clegg, I met with the family of Milly Dowler. The Sunday before that series of meetings took place, Mr Dowler received a phone call from Surrey Police to tell him that the News of the World had told Surrey Police at the time of Milly Dowler’s disappearance that it had hacked into Milly Dowler’s voicemail and retrieved information from it. Surrey Police did nothing at all to prosecute the News of the World over that issue, and it was only the day before that series of meetings that Surrey Police told Mr Dowler that it had known all along that the News of the World had hacked into Milly Dowler’s voicemail. This is the sort of matter that we have not got to the bottom of yet, and Leveson 2 should be held in order to establish what happened.

On financial privilege, I agree with the noble Baroness, Lady O’Neill of Bengarve. Parliament has already committed to the expenditure for Leveson 2; the amendment simply says that it is Parliament itself that should decide that that money should not be spent. The amendment would not involve additional money which has not previously been committed.

However, there is an issue with the wording of the amendment. Our reading of the amendment, if correct, suggests that as the chair of the inquiry, Lord Justice Leveson could override the view of both Houses of Parliament, in that if both Houses voted not to hold Leveson 2 but Lord Justice Leveson himself disagreed with that, the inquiry would still go ahead. We feel that that is a defect in the amendment. Clearly, there will be an opportunity for that to be corrected if we support the amendment today and it goes to the other end, but I hope that the noble Baroness will consider that carefully in considering whether we are on firm enough ground to divide the House on the amendment.

I cannot stress strongly enough from our side how important we think Leveson 2 is and how it needs to take place. We will take every opportunity we are offered to ensure that the Government hold the Leveson 2 inquiry.

[Lord Rosser (Lab)]

Like, I imagine, many other Members of this House, I have received an email from Margaret Aspinall in her capacity as chairwoman of the Hillsborough Family Support Group, asking me to support this amendment. I will not repeat the terms of the email, which I believe has been widely circulated, but it is an indication of the widespread and heartfelt concern that Leveson part 2 might not proceed.

The Leveson inquiry was set up with cross-party agreement and firm commitments from the then Conservative Prime Minister that Leveson part 2 would take place. Let us be clear: Leveson part 2 was in the agreed terms of reference of the Leveson inquiry. The words in the terms of reference for part 2 conclude with:

“In the light of these inquiries, to consider the implications for the relationships between newspaper organisations and the police, prosecuting authorities, and relevant regulatory bodies—and to recommend what actions, if any, should be taken”.


When the Lords amendment on Leveson part 2 was considered in the Commons last week, the Government said that,

“given the extent of the criminal investigations into phone hacking and other illegal practices by the press that have taken place since the Leveson inquiry was established, and given the implementation of the recommendations following part 1, including reforms within the police and the press, the Government must consider whether proceeding with part 2 of the inquiry is appropriate, proportionate and in the public interest”.—[Official Report, Commons, 10/1/17; col. 247.]

Those are words with which we are uncomfortable. They sound like the words of a Government who have already decided they do not wish to proceed with part 2 and are looking for their public consultation, which has now concluded, to give them a cloak of respectability for going back on previous firm pledges that part 2 of Leveson would take place.

The inquiries under the terms of reference of Leveson part 2 have not taken place, and thus neither have we had, nor, I would suggest, if this Government think they can get away with it, will we have the considered implications, in the light of those inquiries, for the relationships between newspaper organisations and the police, prosecuting authorities and relevant regulatory bodies with recommendations on what actions, if any, should be taken, called for and provided for under the terms of reference of Leveson part 2.

The Government appear in effect to have decided that they already know what would emerge from the Leveson part 2 inquiries and, likewise, what the recommendations would be without those inquiries taking place and recommendations being made. Frankly, it begins to look as though some powerful individuals and organisations behind the scenes know that they have something to hide and are determined to stop Leveson part 2 and, with it, the prospect of it all coming out into the open.

When the Lords amendment on Leveson part 2 was considered in the Commons, the Speaker certified it as engaging financial privilege, and that is the reason the Commons has given for disagreeing with it. Whether the amendment before us today would likewise be deemed as engaging financial privilege is not something on which I have any standing. However the amendment, which I saw for the first time only at a very late stage, does say that Leveson part 2 proceeds unless both Houses of Parliament and the chairman of the inquiry agree that it should not.

We are thus in a situation where, if both Houses decided that Leveson part 2 should not proceed—I sincerely hope they would not so decide—that decision would mean nothing if the chairman of the inquiry was not of the same view. I think that however strongly we may feel that Leveson part 2 should proceed, we are in difficult territory if basically we say that the view of the chairman of an inquiry that Leveson part 2 should proceed can override a decision by both Houses of Parliament that it should not proceed, particularly when at heart the issue is whether a clear and unambiguous promise made by a Conservative Prime Minister, with cross-party agreement, that Leveson part 2 would proceed can be tossed aside. That is the kind of issue that Parliament has to address and determine.

We feel very strongly that Leveson part 2 should proceed and that cross-party agreements and associated prime ministerial promises should be honoured and not ditched by this Government. We are unhappy with the wording of the amendment. However, whatever the outcome, we will continue to pursue all credible opportunities to ensure that the pressure is maintained and that Leveson part 2 takes place.

[Baroness Hollins (CB)]

My Lords, many victims of phone hacking, harassment and press intrusion are relying on part 2 of Leveson to proceed and to provide answers to suspicions of corruption between the press and public officials, including the police. Many noble Lords will have received correspondence from the Hillsborough Family Support Group and from Jacqui Hames. Those letters are quite concerning and show the need for further understanding of what happened and what went wrong so that we can appreciate whether adequate measures are in place to ensure that that kind of activity does not happen again.

My family has an interest in part 2 being carried through, as promised by our previous Prime Minister. Dozens of other families and individuals have been affected and also want answers. It does seem fair that we have the inquiry. The misinformation by some newspapers leading up to the close of the consultation may indeed have led to a very large number of formulaic responses. I hope that Her Majesty’s Government will have the wisdom and moral courage to stand up for what is right in this situation and to go through with part 2. I find it very difficult to believe that financial privilege is really the reason for the current caution in this matter. I support the amendment.

--- Later in debate ---

[Baroness Williams of Trafford]

My Lords, when we last debated what is now Amendment 96 on Report in December, I pointed to its potentially significant financial implications. The House of Commons has disagreed with the amendment on the basis of financial privilege. Given the normal conventions of your Lordships’ House, I trust that noble Lords will not insist on it.

However, let me assure noble Lords that this is by no means the end of the matter. While, in the usual way, the House of Commons has cited financial privilege as the only reason for disagreeing with the amendment, it has never been our contention that this is the sole ground for our believing that the new clause should not be added to the Bill. The Government’s view remains that the amendment is premature in that it pre-empts the outcome of the review by Bishop James Jones into the experience of the Hillsborough families and the Government’s subsequent consideration of Bishop Jones’s findings.

The noble Lord, Lord Rosser, and others have argued that the issue goes wider than Hillsborough. We do not dispute that, but the experience of the Hillsborough families, which will include the issue of legal representation at the original and subsequent inquests, is highly relevant to the broader question and it is right therefore that we take Bishop Jones’s current review into account in deciding this question.

As noble Lords may have seen, the review’s terms of reference were published earlier today. They state:

“The Review and Report will cover the history of the Hillsborough families’ experiences throughout the whole period, ranging from the conduct of past police investigations, through their engagement with public authorities, to the current investigations”.


The report will therefore cover a wide range of issues, including, as I have said, the families’ experiences of the various legal proceedings. Bishop James Jones will present his final report to the Home Secretary, including any points of learning that he may choose to highlight for the Home Secretary’s consideration.

It is envisaged that Bishop Jones will complete his review and produce his report in the spring of this year. I can assure the House that the Government will then give very careful consideration to his conclusions and any points of learning contained in his report.

In the knowledge that this issue remains firmly on the Government’s agenda and that there will, I am sure, be opportunities to debate it further in the light of the report, I invite the House to agree to Motion B. I beg to move.

[Lord Rosser]

I accept that the Commons Speaker has also certified the Lords amendment on this issue of parity of funding as engaging financial privilege and that the Commons reason for disagreeing with the amendment is that it would involve a charge on public funds. I want nevertheless to raise one or two points with the Government in light of what the Minister has said.

During consideration of the amendment in the Commons last week, the Minister there referred to the report by Bishop James Jones and said:

“Our view remains that we should await the report, expected this spring, from Bishop James Jones on the experiences of the Hillsborough families. The Opposition have argued that this issue goes beyond Hillsborough. I do not dispute that, but the experiences of the Hillsborough families will have significant relevance for other families facing different tragic circumstances, and the issue of legal representation at inquests will undoubtedly be one aspect of those experiences. Bishop James’s report will provide learning that could be of general application, so it is entirely right that we do not now seek to pre-empt his review, but instead consider this issue in the light of his conclusions”.—[Official Report, Commons, 10/1/17; col. 249.]


Those words make it pretty clear that Bishop James Jones has not been asked to look at the general issue of representation and funding at inquests where the police are represented, which was the subject of the Lords amendment. He has been asked to look at the experiences of the Hillsborough families. The Minister in the Commons stated that the report would provide learning that could be of general application.

Will the Minister say quite clearly one way or the other whether the Government consider that the terms of reference which Bishop James Jones has been given require him also to look at the issue of representation and funding at inquests generally where the police are represented? Alternatively, if the Government consider the terms of reference to be ambiguous on this point, has Bishop James Jones now been asked by the Government to address in his review the issue of representation and funding for families generally and not confine himself to the experiences of the Hillsborough families? Bearing in mind the way the Government have used the existence of the Bishop James Jones review and the forthcoming report as an argument for not going down the road of the amendment that was passed in this House, which deals with the position at inquests generally, I think there will be some concern if, when the report comes out, it is clear that it relates only to the experiences of the Hillsborough families and that the issue of whether it should or could have wider implications for representation and funding for families at inquests generally has not been considered. I would be grateful for some very clear and specific answers from the Government to all the questions I have just asked.

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[Lord Pearson of Rannoch (UKIP)]

My Lords, I notice that in Amendment 134A the proposal is to increase the penalty from seven to 14 years for what is described as an offence,

“which consists of a racially or religiously aggravated offence under section 4 … of the Protection from Harassment Act 1997”.

Before we agree to this increase in the penalty, will the Minister enlighten us about what, particularly, a religiously motivated offence might be? Specifically—and I have asked this before in Written Questions and had unsatisfactory Answers from the Government—could such an offence be caused by a Christian preaching the supreme divinity of Christ and therefore denying the supremacy of Muhammad? Would various assembled Muslims be free to regard that as a religiously aggravated offence under this section?

[Lord Rosser]

I shall be very brief and say that, unlike, apparently, some noble Lords, we welcome the Commons Amendment.

[Baroness Afshar (CB)]

My Lords, I shall make a clarification. Muslims accept all religions that preceded Islam and accept all the texts that preceded it. Therefore, there would be no likelihood of such an event occurring.

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[Lord Paddick]

My Lords, I rise to support my noble friend Lady Brinton and associate those on our Benches with her remarks on Jill Saward. The Minister acknowledged in her remarks that there are legitimate concerns about the victims’ code, and that is why there was a Conservative Party manifesto commitment for a new victims’ law to ensure that the victims’ code is given effect. That is what my noble friend is trying to achieve through the amendment. We trust that the Government’s review will result in more effective protection for victims and more compliance by the police and the other agencies with the victims’ code. If the Minister can give that commitment, we will be prepared to accept the Government’s intention to ensure that the victims’ code is not simply a matter of words but will have some effect and that victims will be better cared for by those agencies in the criminal justice system.

[Lord Rosser]

My Lords, we, too, support the objectives behind the amendment that was moved so eloquently by the noble Baroness, Lady Brinton, for the reasons that she herself set out. We also associate ourselves with the comments made by the noble Baroness about Jill Saward.

The issue is that the current victims’ code is not legally enforceable and there is clear evidence that it is not being applied and acted on by the relevant agencies to the extent that was clearly intended—to the detriment of the victims it was intended to help. The amendment provides for victims’ rights to be placed on a statutory footing and for the Secretary of State to address the issue of training for all relevant professionals and agencies on the impact of crime on victims.

I share the view that the Government, in the statement made by the Minister today, have been considerably more helpful and constructive in their response than they were during consideration of the Lords amendment in the Commons last week.

Finally, I, too, express my thanks to the Minister for her willingness to meet us. I hope that we have reached a stage at which there will be some accord on this issue.

[Baroness Williams of Trafford]

My Lords, I do not think that there was a lack of accord. In fact the whole way through these discussions I felt that we were seeking the same ends; it was just a matter of how we got there. I add my tribute to that of the noble Baroness to Jill Saward. I read about her the other day, and what she went through was absolutely heart-breaking as well as devastating while her father and then fiancé were downstairs. How she gathered the strength to not only waive her right to anonymity but help so many other people is quite inspiring and not something that everybody would feel able to do.

Following discussions today, yesterday and previously, we have reached a consensus on this and I hope that the words that I read out have given noble Lords confidence as we move forward to publishing this strategy within the next 12 months. I thank all noble Lords for their part in this debate.