Only a few days to go: We’re raising £25,000 to keep TheyWorkForYou running and make sure people across the UK can hold their elected representatives to account.Donate to our crowdfunder
With the leave of the House, for which I am most grateful, I shall confine my remarks to the amendments that deal with the code of practice. The first amendment says that there should be no code of practice, and the second provides that, after the chief constable has drawn up the code of practice, it shall be brought back to the House.
It is right for us to have a proper discussion of the clause. As far as I am aware, proper consideration has never been given on the Floor of the House to what is an unprecedented clause in constitutional, apart from practical, terms. It originated with the West Midlands County Council Bill, now an Act. There was a great deal of petitioning against a clause in that legislation that would make it a criminal offence not to give notice of processions in the west midlands. There was a great deal of local concern, and petitions were drawn up against the clause. It was a 72-hour notice clause, unlike this clause. The subsection about a code of practice was put into the West Midlands County Council Act in an attempt to mitigate the effect of the criminal offence of failing to give notice and to reassure people who were worried about the effects on the right to demonstrate of this criminal offence of failing to give notice. I support the amendments because, in my opinion, the subsection, far from mitigating the effects of the original clause, makes matters worse.
I want to deal first with the status of the code of practice. If a code of practice is important, it should be a schedule to the Bill and subject to the same consideration as the rest of the Bill. We are accustomed to codes of practice in employment law. Industrial tribunals consider not only employment legislation but codes of practice approved by the Secretary of State under the legislation. What we are not familiar with—and, as far as I am aware, there is no precedent for—is the idea of a code of practice in relation to the criminal law. How will it be used in court? How are the magistrates courts to interpret a breach of the code of practice compared with a breach of the Act itself? There is no precedent. Magistrates will not know what weight to give to it. A code of practice is an unprecedented creature in criminal law. The idea of this creature being introduced in a local Bill is unsatisfactory constitutionally.
We are giving parliamentary authority to the chief constable to write bits of the criminal law, because the chief constable has responsibility to draw up the code of practice. The House has no business to delegate to a chief constable the power to draw up extra bits of the criminal law without any comeback from the House as to whether the bits that he adds to the code of practice are what we would approve. We should remember that we are talking about a code of practice that is issued under a provision that makes something a criminal offence.
The west midlands code of practice, which was drawn up under the West Midlands County Council Act, did not have wide circulation. Most people did not know about it, and they probably still do not know about it. We know that ignorance of the law is no excuse. If one breaks the law, one has to bear the consequences, whether or not one knew of the law. Is it the same here? Will ignorance of the code of practice be no excuse? Even if one has not managed to get a copy of the code of practice, and breaches one of its provisions, is one still transgressing the criminal law?
When I was working for the National Council for Civil Liberties and tried to get a copy for someone in the west midlands who wanted to know what the code of practice said, it was with the utmost difficulty that I managed to find a copy of the code of practice. We tried the police, the local library and local solicitors. The code of practice will be important in the courts, but it is quite inaccessible. That is a bad precedent.
Let us consider what we are asking the chief constable to do. He is to issue the code of practice. The provision does not say that he should consult the local police authority. It does not say that he should consult the local authority, let alone the Home Office or this House. We are giving the chief constable a power that is completely without local accountability. That is an extremely bad precedent.
We say that the chief constable can put into the code of practice "any matter that he deems to be relevant." It is extraordinary that anyone should say in a provision that could lead to a criminal conviction that the chief constable can draw up a code of practice, off his own bat, without consulting anybody, locally or nationally, in which he can put any matter that he deems to be relevant. It is an entirely subjective test.