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.

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[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.

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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.

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[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.