Police and Criminal Evidence Act 1984 (Codes of Practice) (Revision of Codes A, B, C, D and H and New Code I) Order 2023

Lord Sharpe of Epsom Excerpts

Tuesday 12th December 2023 Grand Committee

Moved by

[Lord Sharpe of Epsom]

That the Grand Committee do consider the Police and Criminal Evidence Act 1984 (Codes of Practice) (Revision of Codes A, B, C, D and H and New Code I) Order 2023.

[The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom) (Con)]

My Lords, the Police and Criminal Evidence Act 1984 (Codes of Practice) (Revision of Codes A, B, C, D and H and New Code I) Order 2023 was laid before this House on 16 October 2023. This debate follows a debate that I took part in on 4 December regarding three instruments related to the National Security Act that were also laid on 16 October.

Turning to the order we are discussing today, Section 66 of the Police and Criminal Evidence Act 1984, or PACE, requires the Home Secretary to issue codes of practice which govern the use of police powers, including the associated rights and safeguards for suspects and the public in England and Wales. The revised and new codes of practice before us ensure that those codes reflect the provisions of both the National Security Act 2023 and the Public Order Act 2023.

Before getting into the detail of the changes, I begin by noting that, as per Section 67(4) of PACE, two separate consultations on these changes were carried out, one in relation to each of the new Acts. These were carried out from 20 July to 31 August this year. The responses were generally positive about the changes proposed and the Government considered and incorporated suggestions for further amendments to the codes of practice following these consultations. The full details of the consultations and the Government’s response can be found on GOV.UK.

I will now briefly outline the changes made through this order—first, those to PACE Code A required as a result of amendments to stop and search powers made in the Public Order Act 2023 and the Government’s commitment to streamline stop and search guidance. Following Royal Assent of the Public Order Act 2023, PACE Code A required modifications to emphasise that the suspicion-led stop and search power introduced in Section 10 of the Public Order Act is afforded the safeguards contained in Code A. The suspicionless powers in Section 11 of the same Act authorise the police to stop and search individuals and vehicles to find objects made, adapted or intended to be used in connection with protest-related offences.

We are also changing PACE Code A to include provisions to improve community relations and data collection as currently found in the Best Use of Stop and Search Scheme guidance. Communicating the use of suspicionless search powers such as Section 60 of the Criminal Justice and Public Order Act 1994 and Section 11 of the Public Order Act 2023, where it is operationally beneficial to do so, and embedding a data collection requirement within the code, will build on the existing trust and confidence between the police and the community they serve.

Finally, changes proposed to PACE Code A include an updated start date for the serious violence reduction order pilot, which commenced in April this year, and an update to the ethnicity list found in Annexe B to reflect the latest categories from the 2021 census.

The amendments related to the National Security Act concern PACE Codes A, B, C, D and H, along with a new PACE Code I. In summary, the amendments to Code A are required to govern how searches of individuals subject to prevention and investigation measures under Part 2 of the Act should be carried out. These changes mirror the existing provisions in Code A for the equivalent terrorism measures.

The amendments to Code B, which covers search, seizure and retention powers, are required to account for the new search and seizure powers introduced by Schedule 2 to the National Security Act. They largely replicate those already contained in Code B for similar powers.

The changes to PACE Codes C and D make it clear that those codes do not apply to relevant provisions in the National Security Act or Schedule 3 to the Counter-Terrorism and Border Security Act 2019, such as detention provisions. This is because separate codes—including the new PACE Code I—deal with those provisions.

Both Codes A and D are also amended to exempt an officer having to give their name in the case of inquiries linked to national security. This extends the approach currently taken towards terrorism investigations and provides a crucial change to protect the identities of police officers from state actors who may seek to do them harm.

The changes to Code H implement recommendations made by the Independent Reviewer of Terrorism Legislation, which the Government have accepted. They largely reflect amendments to Section 41 of the Terrorism Act 2000 made via the National Security Act—for example, making it clear that time spent in detention under certain other detention powers will be accounted for when calculating the maximum period of detention.

Finally, this order brings into operation a new PACE Code I to govern the detention, treatment and questioning of individuals arrested under Section 27 of the National Security Act. This code contains various operational procedural matters, such as how to arrange for an interpreter for the suspect, what information must be documented in the custody record, how to provide cautions and what to do with the detainee’s property upon arrest. The code is based very closely on PACE Code H, which provides guidance for the detention and treatment of persons arrested under terrorism legislation, including the updates I have just set out.

I point out that the changes to these codes are supported by Counter Terrorism Policing and the Crown Prosecution Service. The Independent Reviewer of Terrorism Legislation has also specifically supported the changes to Code H.

I hope I have made it clear that changes made by this order are supportive of primary legislation that has already been agreed by Parliament. These revised codes promote the fundamental principles to be observed by the police and help preserve the effectiveness of, and public confidence in, the use of their legislative powers.

I very much hope noble Lords will support these revisions to the PACE codes of practice. I commend the order to the Committee, and I beg to move.

[Baroness Doocey (LD)]

My Lords, I thank the Minister for his introduction. As he said, the changes have already been debated at length and approved by Parliament, and we will not oppose them. However, I would like to make some specific points. Perhaps the Minister could address them in his summation.

We do, of course, understand the importance of ensuring, at a time of heightened and ongoing risk from hostile state actors, that the powers we give our police are a match for those people who seek to harm us. We also appreciate the need to give officers on the ground clear guidance, but there must be a balance between allowing the police to do their job and protecting civil liberties. We welcome attempts to keep the public informed about what the police are doing in relation to suspicionless stop and search. We hope this will go some way to re-establish trust among those citizens most commonly subjected to this practice, namely members of the black community.

We note concerns raised during the consultation process about when the public will be alerted to the use of suspicionless stop and search. The concern is that the term “operationally beneficial” is simply not clear enough to define when it will be in operation. Everyone recognises the importance of police operational autonomy, but can the Minister confirm that this particular concern has been taken into account?

We welcome the new data collection requirement in Code A, particularly given that the ethnicity of 20% of those subjected to stop and search in the year ending March 2022 remains unknown because it was not recorded. However, our key concern remains the extension of police powers to stop and search someone without reasonable grounds for suspicion. We have made our concerns clear that extending these powers now is fundamentally incompatible with the findings of the Casey review and the recent IOPC report, both of which found that progress in tackling racial disparity in stop and search still has a very long way to go.

In light of this, what signal are we sending to these communities in giving the police even greater leeway to carry on that practice, despite the well-documented racial bias still evident in it? Sadly, I suspect that, for many, it says that we are just not listening.

[Lord Coaker (Lab)]

My Lords, I thank the Minister for his introduction to these revisions to the PACE codes. He outlined the reasons for the changes, which reflect the various provisions of the National Security Act 2023 and the Public Order Act 2023. As such, the various rights and wrongs of the provisions have been debated, and they have been included in primary legislation. There is no need to rehearse these debates, but I will ask some questions about the resulting changes to the PACE codes.

PACE Code A is to be changed to include provisions to improve community relations and data collection. Given the importance, as we heard from the noble Baroness, of confidence and trust around suspicionless stop and search in particular, can the Minister say what these changes are and whether they help deal with issues such as disproportionality and the maintenance of community trust, which we all wish to see in the code? The changes say that they do that, so it would be interesting to know how.

More generally, is there any difference under these codes in the treatment of children or do they apply to everyone regardless of age? Some clarification on that would be helpful. Although the Minister said that these changes come from the National Security Act and the Public Order Act, given some of the questions around the use of stop and search, could other changes be made using this as a vehicle? One example mentioned here is strip-search. We have guidance for strip-search here, but we know what controversy there has been around it. I sometimes wonder whether the machine says, “We’ve had the National Security Act and the Public Order Act, so we need these changes to the PACE code that flow from that”, but there may be a missed opportunity to reflect more widely on some of the issues around what is sensible.

I think the Minister did so, but can he confirm that the stop and search powers in Sections 10 and 11 of the Public Order Act are now fully covered by these revised PACE codes?

The revised codes also include a date for the start of the serious violence reduction order pilot. When will this start and, given that it is a pilot, where will it take place? The Minister in the other place said that this was an updated start date. What caused the delay in the first place? I think the original intention, according to the statement of the Minister in the other place, was for it to start this April.

We support the various changes in the amended codes and the introduction of the new Code I, following the National Security Act 2023. As the Minister helpfully pointed out, the consultation showed that there was general support from not only the police and the CPS but the independent reviewer for the various revisions to the codes in terms of how persons are detained and treated when arrested under terrorism legislation.

Given that terrorism legislation is not devolved, but these PACE codes deal with England and Wales, will the Minister say what discussions have taken place with Northern Ireland—I presume with officials there—and Scotland, and how the PACE codes have been updated? The Minister spent some time talking about the welcome changes that were made to the PACE codes with respect to terrorism, but these codes refer to England and Wales and not to Scotland and Northern Ireland. How has that been dealt with? It would be interesting to hear from the Minister about what has happened there.

PACE Codes A and D are amended so that an officer does not have to give their name in the case of inquiries linked to national security. I understand that—it is for sensible and obvious reasons, as the Government said—but how would it work if somebody wanted to complain or get a review of their treatment? I appreciate that the name should not be given, but could a number be given, or is there some other method by which anonymity could be protected while recognising that sometimes issues arise and somebody may wish to complain or take forward something that has occurred in an interview? They may have been interviewed and perhaps even arrested and then released and wish to make some complaint about it. How will that be dealt with?

We accept these changes and recognise the importance of striking the balance between individual rights and security. Public confidence and trust are everything, even in challenging circumstances. I urge the Government to do everything in their power to ensure that we maintain that confidence and trust with respect to the implementation of this order. We do not oppose these important codes, but some clarifications would be helpful for us all.

[Lord Sharpe of Epsom (Con)]

My Lords, I thank both noble Lords for their contributions. I will do my best to deal with the points raised.

The noble Lord finished on the subject of whether it is proportionate, in effect, to allow police officers to not give their names in inquiries linked to national security, as per Codes A and D. The Government have amended Codes A and D to exempt officers from having to give their name in cases of inquiries linked to national security, which extends the approach currently taken towards terrorism investigations. It is a crucial change to protect police officers from being obliged to reveal their identity to state actors who may be highly trained and seek to use such knowledge to conduct harmful activity against them. It is difficult to see how an individual might write a complaint against an officer who is interfering with them, but I will look into it, and if I can find anything useful to enlighten the noble Lord, I will come back to him.

The noble Lord also asked whether we have been consulting the devolved Administrations. The answer is yes. We have been consulting them extensively. When PACE Northern Ireland will be published is a matter for the Northern Ireland Executive. However, they are undertaking a review of the PACE Northern Ireland codes of practice and are apparently about to revise them. As soon as I have those revisions, I will let the noble Lord know.

[Lord Coaker (Lab)]

Given that the Executive and the Assembly are not functioning, does he mean that officials are doing that?

[Lord Sharpe of Epsom (Con)]

I assume so, but I will find out and come back to the noble Lord.

The Government also obtained concurrence from the Lord Advocate for the part of this that applies to Scotland. We engaged with the Scottish Government and Scottish policing throughout the process of creating this code. I believe that one or two of the changes made reflect Scottish policing’s comments on it.

On disproportionality, which was raised by the noble Baroness, Lady Doocey, as well as the noble Lord, of course I understand the concerns around disproportionality and the impact of stop and search, particularly on members of the black community. Nobody should be targeted because of their race. Extensive safeguards such as statutory codes of practice and body-worn video exist to ensure this does not happen.

It is worth pointing out that, although disparities in the use of stop and search remain, it is positive that they have continued to decrease for the past four years. The proposals set out in these changes, such as the communication of the suspicionless stop and search authorisation will, in my view, improve the relationship between black and ethnic minority groups and the police. Of course, the phraseology behind that—“where operationally beneficial” in particular—was very carefully considered to sort out this issue.

It is also worth saying that the Home Office now publishes more data than ever before on police powers, including the use of stop and search. As part of the inclusive Britain strategy, the Home Office Race Disparity Unit and Office for National Statistics have worked to improve the way stop and search data is reported and to enable more accurate comparisons to be made between different police force areas. The proposed change on data in this updated code would reflect the power given to the Home Secretary under Section 44 of the Police Act 1996, but this data is collected and published online as part of a statistics bulletin.

The noble Lord, Lord Coaker, asked about protections for children. There are safeguards in this code as well. Children detained will have to have an appropriate adult assigned to represent their best interests.

The noble Lord also asked whether there was a delay—there was. It was supposed to be rolled out on 17 January this year but ended up commencing on 19 April. The reason for that was the difficulty of getting the training in place in time. The four pilot areas are the West Midlands, Thames Valley, Merseyside and Sussex.

With that, I think I have answered the questions that were asked of me. I reiterate that the updated and new PACE codes of practice will help the police to use their powers in a proportionate and consistent manner in accordance with the primary legislation. As such, I commend this order to the Committee and thank both noble Lords for their support.

Motion agreed.