Policing and Crime Bill

Viscount Hailsham Excerpts

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

[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.

[Lord Blair of Boughton]

I support the noble Viscount, Lord Hailsham, on that point. However, given that this is Report, I ask the Minister to bring back a government amendment that says that it is the coroner. We should not lose this opportunity. I support the noble Lord, Lord Rosser, in saying that we ought to have a process in which there is an equality of arms between the two sides. As I understand it, however—I stand to be corrected—the House can do that only if the Government bring forward an amendment on Third Reading which says what the noble Lord’s amendment does, but that it is not the police and crime commissioner; it is the coroner. I completely agree.

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As it is clear that the online system is some way away from being introduced, I therefore ask again when the Government are going to increase the fee for civilian firearm and shotgun certificates in the interim period, prior to the introduction of the online system, to a level that enables the police to recover the full costs of their role in administering applications and eliminates any apparent subsidy from the taxpayer. What is the problem with eliminating that subsidy now, and what is the justification for continuing with the apparent subsidy? Surely the answer is that there is none.

[Viscount Hailsham]

My Lords, I would like to make a declaration of interest, in that I hold a shotgun certificate and a firearm certificate, and to that extent I may be supposed to have a personal interest. Moreover, I have a declaration of personal responsibility to make too, in that after the Hungerford shooting way back at the end of the 1980s I was the Minister in the Home Office—subject, of course, to Douglas Hurd, now Lord Hurd of Westwell—responsible for the carriage of the firearms Act in 1988. I also have a long-standing interest in the law relating to firearms.

I am broadly in favour of Amendment 169A. Indeed, it is a response to my former Parliamentary Private Secretary, Mr Geoffrey Clifton-Brown—and all credit to him for tabling it in the House of Commons. However, I have one reservation about proposed new subsection (1)(b) in the amendment, which states,

“in the case of a rifle, the borrower is aged 17 or over”.

Contrary to what the noble Lord, Lord Rosser, said, I think that that threshold is far too high. I look back to my youth when I used to use a .22 carbine, shooting on the lawn under the very close supervision of my father, who was, I think, a fairly respectable Member of this House. We felt that there was nothing improper about that so long as the supervision was close. I think that the age 17 threshold is too high. Personally, I would rather see a lower one—14 or something close to it. I agree that there should be supervision but I do not agree with the threshold.

I am very much against Amendment 169B, which concerns the full recovery of costs. I think we need to keep in mind the basic proposition that if you give powers to officials, on occasion they will be abused. That is one of the great rules of politics. Therefore, one needs to watch very carefully the powers you give officials.

In Lincolnshire, the chief officer pursues a sensible firearms policy. However, I am conscious that there are forces not too distant from Lincolnshire in which the firearms officers are fairly aggressive, driving up the cost. You should have a restriction of the reasonable cost, not the full cost, because it is possible for chief officers and firearms officers, through an overaggressive use of their investigatory and inspection powers, to drive the cost up, either because they want to deter firearms use or simply because they have a fairly aggressive approach. Therefore, my strong preference is that the limit be confined to a reasonable cost and not the full cost.

In acknowledging my own failings in 1987, I will go a little wider. There are three areas relating to the possession of firearms to which I hope my noble friend will give consideration in the future—or perhaps even in this Bill. First, what happens when your guest leaves by accident his or her gun in your house? This has happened to me. One of my guests, a Member of your Lordships’ House, was shooting with me in Scotland and he managed to leave his shotgun accidently when he went a long way south, 200 or 300 miles away. The gun was in the gun cabinet and perfectly locked up, but the estate owner was not certificated to hold it. I asked myself whether I should take it down to him. I was not certificated to transport it. What does one do? I am not going to tell you what I did for obvious enforcement reasons, but it is a dilemma. What is the law where a gun is accidently left behind but is secure in a gun case? We need to have provision to cover such a situation.

Secondly, and rather similarly, if you go shooting some distance from your home you take your gun in the car. You travel along the motorway—no doubt with your wife or your partner—and when you stop at a service station, for obvious reasons, you leave your gun, generally speaking, in the car, with your wife in the car looking after it. However, in the normal run of events, she is not certificated. In my case I have taken precautions in that regard, but your wife or partner in the car is in possession of a gun for which she is not certificated. That is potentially an offence.

My final point—I am sorry to trespass on your Lordships’ patience—relates to the keys of gun cases. Some of your Lordships may know of the unfortunate case where a lady admitted to a police officer that she knew where the keys to the gun case were, and she was done for being in possession of the gun. That is a complete nonsense. I did not tackle these problems when I was the Minister in charge of this issue, but I like to think that my noble friend will be more sensible than I was.

In the old days, enforcement of gun laws was fairly relaxed. The chief officer would know that so and so was a reliable citizen. However, that is not the case now—probably rightly—and what I have described can give rise to serious sanctions and penalties. That alarms me. I like to think that my noble friend on the Front Bench will reflect on my shortcomings as the Minister responsible for the 1987 Act and perhaps remedy the deficiencies.

[Lord Paddick]

My Lords, I support Amendment 169B in the names of the noble Lords, Lord Rosser and Lord Kennedy of Southwark.

I accept the point made by the noble Viscount, Lord Hailsham, about reasonable cost as opposed to full cost recovery—or, at least, I could accept it if it was an approach the Government took across the board. However, in Committee I drew a parallel with the Immigration Act, where the Government proposed a philosophy of full cost recovery for visa applications and for the Immigration Service generally. I asked the Minister then, if she was not going to agree with amendments tabled to ensure full cost recovery for the issuing of firearm certificates, to explain why a different approach is being taken to the principle of full cost recovery when it comes to immigration. In particular, I asked her to refute the obvious allegation that the Government are discriminating against foreign nationals as against those who go hunting with guns for sport. I cannot recall the Minister specifically responding to that question; perhaps she could address it today.

Having apparently agreed in Committee to the principle of full cost recovery for firearms certificates, the Minister went on to say that there was a public consultation on these issues and that,

“there might be good reasons not to set fees at full cost recovery levels, either for a transitional period or for certain categories of licence holder”.—[Official Report, 9/11/16; col. 1163.]

There are very good reasons why visa applications and the like should not be set at full cost recovery levels, yet the Government appear determined that they should be, without any public consultation or a transitional period. Can the Minister explain why foreign nationals are being treated differently from those who possess firearms?

I asked the Minister in Committee what consultation there had been with groups that represent immigrants or those who might apply for visas before the Government implemented full cost recovery for immigration visas. Can the Minister please answer that question for the record, as she was unable to do so in Committee?

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To answer the question of the noble Lord, Lord Paddick, the Government’s position is that all fees should be set on the basis of full cost recovery, as set out in Treasury guidance. There is therefore no discrimination against any particular category of fee payers. I hope with those words of explanation—

[Viscount Hailsham]

My noble friend was good enough to say she would write to me and I am grateful. Would she include in her letter a response on what I would summarise as the service station point, and the point about when one’s wife or partner knows the whereabouts of the key to the gun safe?

[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.