Police (Detention and Bail) Bill

Business of the House (Police (Detention and Bail) Bill) – in the House of Commons at 12:35 pm on 7th July 2011.

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Second Reading

Photo of Theresa May Theresa May Minister for Women and Equalities, The Secretary of State for the Home Department 12:36 pm, 7th July 2011

I beg to move, That the Bill be now read a Second time.

Since the Police and Criminal Evidence Act came into effect in January 1986, it has been widely recognised by the police and the courts that time spent on bail does not count towards the maximum permitted period of detention without charge. That is entirely right and proper. Being held in custody in a police cell is clearly not the same as being free on police bail, even with conditions attached.

For more than 25 years, the sensible interpretation of the law has enabled the police to investigate crimes and keep the public safe, but on 19 May, in a judicial review, Mr Justice McCombe gave an oral judgment that it was his view that a district judge—as we have just heard from Hazel Blears, Judge Feinstein—had been right to refuse a routine application for a warrant of further detention of Paul Hookway, a suspect in a murder investigation.

I should stress to the House that at the time of the oral judgment on 19 May, it was not at all clear what the implications of this case would be. Indeed, in his oral judgment, Mr Justice McCombe himself said that “the consequences” of this ruling

“are not as severe as might be feared in impeding police investigations in the vast majority of cases”.

At that time, it was not clear whether the ruling was restricted to the details of the Hookway case alone, whether it had a limited application or whether it was restricted to warrants of further detention beyond 36 hours. It was not until the complex written judgment was received on Friday 17 June— and considered in detail with the advice of counsel—that it began to become clear that this case had wider implications for police detention and bail.

Photo of Robert Halfon Robert Halfon Conservative, Harlow

I thank the Government for their speedy action on this issue. Does my right hon. Friend agree that the reason why we are here today is that judicial interpretation in recent years, as so often, has been in favour of the criminal rather than the victim? Does not this legislation shift the balance in the right direction?

Photo of Theresa May Theresa May Minister for Women and Equalities, The Secretary of State for the Home Department

I am grateful to my hon. Friend for his intervention, but he tries to tempt me down a path of discussion which I think is probably inappropriate for today’s debate, although I have been on record in this House in commenting on previous judicial decisions. I know that there are those who do indeed feel the way my hon. Friend does, but we had better not get into that in today’s debate.

Photo of Keith Vaz Keith Vaz Chair, Home Affairs Committee, Chair, Home Affairs Committee

I am grateful to the Home Secretary and thank her for giving evidence about this matter to the Select Committee on Tuesday. She mentioned the legal advice sought by the Association of Chief Police Officers. Has the Home Office sought its own independent legal advice? I see the Solicitor-General sitting beside the right hon. Lady. Presumably, the Home Office, independent of ACPO, is satisfied that everything is in order so far as the legal advice is concerned.

Photo of Theresa May Theresa May Minister for Women and Equalities, The Secretary of State for the Home Department

Given his experience, the right hon. Gentleman will know that Ministers never confirm or deny when asked what legal advice or opinion they have sought. However, I can tell him that the Home Office is satisfied that the legislation is necessary. If it were not, we would not be introducing it.

One hour and two minutes after the Home Office received ACPO’s professional, legal and operational advice on Thursday 30 June, the Minister for Policing and Criminal Justice delivered an oral statement to the House in which he announced our intention to introduce emergency legislation. The police’s professional and operational judgment, backed up by the legal expertise of two leading QCs, has guided the Government’s decision. Only fast-track primary legislation can give the police the necessary certainty and immediacy in restoring the law as it was understood to operate. As was pointed out by my right hon. Friend Sir Alan Beith, what we seek to do is return things to how they have been for the last 25 years.

Photo of Steve McCabe Steve McCabe Labour, Birmingham, Selly Oak

What many Opposition Members find difficult to deal with is the time scale. The Home Secretary says that the Government acted as speedily as possible, but Ministers did not meet representatives of ACPO until 24 June. The right hon. Lady could have read what was said by Michael Zander on 18 June, when he made it absolutely clear that we would need an appeal or emergency legislation. If she is the person in charge, why did she know nothing about that, and why did she not meet ACPO representatives until 24 June?

Photo of Theresa May Theresa May Minister for Women and Equalities, The Secretary of State for the Home Department

The hon. Gentleman asked me the same question earlier this week when I appeared before the Home Affairs Committee. The issue has also been raised by a number of other Opposition Members, who are doing their best to suggest that there was a delay. There was no delay. It was necessary for all the parties concerned to examine in detail the judgment that had been made available on 17 June. Professor Michael Zander is well respected in this field, in which he has considerable expertise, but I think that if I had come to the House and proposed to the Opposition that the Government introduce emergency legislation on the basis of an article that had appeared in a journal, the Opposition would have rightly told the Government that they should take a rather more professional approach.

The Supreme Court’s decision on Tuesday not to grant a stay in the case has made the legislation all the more vital and all the more urgent. I welcome the support for it that has been promised by Opposition Front Benchers, as well as the support given by the Chair of the Home Affairs Committee, Keith Vaz.

Photo of Mark Reckless Mark Reckless Conservative, Rochester and Strood

It is clear to me, at least, that the Government acted with alacrity, but perhaps the Home Secretary can help me by explaining earlier events involving Greater Manchester police. Why, despite the discussion following the judgment, did they not apply for a certificate for an appeal on 19 May, and why did it then take so long for that to happen? In particular, why was no reliable written note taken of the oral judgment?

Photo of Theresa May Theresa May Minister for Women and Equalities, The Secretary of State for the Home Department

The answer to the question about the written note is that we were waiting for the judge who had made the decision to produce his own written judgment, so that it would be absolutely clear to us what we would need to interpret. What Greater Manchester police were dealing with was the oral judgment that had been delivered on 19 May. As I have just said, Mr Justice McCombe himself indicated that he did not think that the consequences would be especially severe. Only after further consideration did Greater Manchester police conclude that it would be necessary to appeal against the judgment.

It is important to understand that it was not simply a question of looking at the legal judgment. It was for the police to consider, in operational terms, whether they were able to work within that judgment. When the written judgment was made available to them, the operational implications became clear. It is those operational implications that give cause for concern, and they are the reason for the Bill that we are introducing today.

Photo of Yvette Cooper Yvette Cooper Shadow Home Secretary, Shadow Minister (Equalities Office) (Women and Equalities)

The Home Secretary has been dealing with issues relating to the emergency legislation. Will she tell us why the Attorney-General did not immediately join Greater Manchester police in applying for a stay of judgment as well as joining them in applying for an appeal?

Photo of Theresa May Theresa May Minister for Women and Equalities, The Secretary of State for the Home Department

The right hon. Lady has already raised a number of questions relating to this matter, including the question of the stay of judgment. She has claimed that there was a considerable delay before we came to the House, but, as I said earlier, one hour and two minutes after we received the formal and final judgment from ACPO on the basis of advice from the two QCs whom it had been consulting, my right hon. Friend the Minister for Policing and Criminal Justice made his statement here. As for her previous question about why the Home Office did not join the police in requesting a stay, the answer is simple: we had no locus standi. We were not part of the initial legal proceedings, and it was not open to us to be party to that request.

Let me add—just in case the right hon. Lady intends to ask about this—that she has implied in the past that if Greater Manchester police had applied for a stay earlier, a different decision would have been made and everything might have been okay. However, it is now clear, both from the decision that the Supreme Court issued earlier this week and from what has been said by leading legal commentators such as Joshua Rozenberg, that it is not even certain that the Supreme Court has the power to order a stay in relation to such an appeal.

Photo of Yvette Cooper Yvette Cooper Shadow Home Secretary, Shadow Minister (Equalities Office) (Women and Equalities)

Did the Attorney-General consider joining the case for both the appeal and the stay as soon as he was made aware of the position? In the end the Supreme Court asked him to do so, but did he consider doing so as soon as he was told, and when was he told?

Photo of Theresa May Theresa May Minister for Women and Equalities, The Secretary of State for the Home Department

I thought I had made the position clear to the right hon. Lady. Those who were party to the initial legal proceedings were able to grant a stay, and Greater Manchester police were able to make a decision—which they did at a certain point in the timetable—on whether to apply for one.

If the right hon. Lady is trying to play party-political games with the question of the application for a stay, she should consider the comments that have been made and the decision of the Supreme Court, which, as I have just said, suggests that there is considerable doubt not about the timetable for a stay, but whether the court even has the power to order one in this case. The right hon. Lady should think about that very carefully.

I think it important that the Home Affairs Committee has had an opportunity to scrutinise the Bill and also, fortuitously, an opportunity to ask me questions about it during the evidence session that I held with the Committee on Tuesday. I also note the support of leading legal figures such as Professor Michael Zander—who was mentioned earlier—and Liberty, which has said:

“Liberty supports the Government’s intention to amend the law as proposed. In our view the proposed reform is clarificatory and would do nothing more than return the law to the original intention of Parliament and the way in which it has been interpreted—by judges, prosecutors and defence lawyers—for the best part of 25 years.”

I could not agree more.

Photo of Paul Goggins Paul Goggins Labour, Wythenshawe and Sale East

I fully support the Bill, but may I take the Home Secretary back to the last session of Home Office questions and her surprisingly dismissive comments about the Joint Committee that had been considering her proposals for emergency legislation in relation to pre-charge detention? The Committee had described those proposals as unsatisfactory and unreliable.

In the light of the experience of the last few days, is the Home Secretary beginning to revisit her views on the role of emergency legislation in dealing with pressing and urgent issues? In particular, will she tell us what she would have done if all this had happened two or three weeks later, and the House had been in recess?

Photo of Theresa May Theresa May Minister for Women and Equalities, The Secretary of State for the Home Department

The premise of the right hon. Gentleman’s question is that I was dismissive of the Joint Committee’s views at Home Office questions, but I was not. Indeed, I have not been dismissive of its views because I have made it clear that we are accepting one of the points it raised on the emergency legislation, and I hardly think accepting one of its points can be described as being dismissive of its views.

The Bill seeks to restore the law on police detention to the position as it has been understood for the last 25 years. The Police and Criminal Evidence Act 1984 set out the rules governing detention and bail prior to charge.

Photo of Paul Goggins Paul Goggins Labour, Wythenshawe and Sale East

I am sorry to exasperate the Home Secretary, but I was rather hoping she would address the point I made at the end of my intervention: what would have happened if all this were taking place when we were in recess?

Photo of Theresa May Theresa May Minister for Women and Equalities, The Secretary of State for the Home Department

The right hon. Gentleman is trying to tempt me to debate hypothetical situations. It is right that we are introducing this legislation today, precisely so that it can be debated on the record and, we hope, receive Royal Assent before the House goes into recess. The right hon. Gentleman knows full well about the debates we have had on the emergency legislation for pre-charge detention and what would be applicable and possible for Parliament to do during a recess, and I am sure we will continue to have such debates. As I have said, I have accepted one of the Joint Committee’s points on this issue, and that can hardly be described as dismissing its views.

As I was saying, PACE set out the rules governing detention and bail prior to charge. It provides that once a person is arrested and brought to a police station, that person must not be detained for longer than 96 hours in total without being charged with an offence. Within the overall maximum permitted 96-hour period, continued detention must be authorised by a police officer of at least the rank of superintendent after the initial 24 hours, and by a magistrate after the initial 36 hours, with fresh warrants required at 36-hour intervals.

There are numerous other safeguards. For example, ongoing detention must be subject to periodic review, and an individual can challenge their detention at any time by bringing an action for habeas corpus in the High Court. The idea some have put forward that this judgment means the police should in some way just “work quicker” to gather evidence ignores the reality of policing and the necessity of the police being able to, for example, take forensics tests, and identify, contact and interview witnesses. The judgment effectively takes away police time in which to do such things.

The Bill seeks to reverse the effect of the High Court’s ruling, but it only seeks to reverse that. It amends PACE to make it explicit that in calculating any period—whether a time limit or a period of pre-charge detention—any periods spent on bail shall be disregarded. The Bill also amends PACE to make it clear that periods of police detention before and after a period of bail are to be treated as if they form a single continuous period. This is an important safeguard that the High Court judgment had overturned, and, again, it restores the position to what it has been understood to be for the past 25 years.

Photo of Hazel Blears Hazel Blears Labour, Salford and Eccles

The Home Secretary clearly regards police bail as an important tool for bringing people to justice. It often applies to people accused of serious crimes, and they can be required to live at locations well away from their home address so that they do not mix with any associates who might be involved in crime. Will the Home Secretary therefore explain why in the terrorism Bill that has just left Committee she is proposing that the restrictions for those suspected of being involved in terrorism should be weaker than the restrictions in this Bill for people suspected of being involved in serious crime who are on police bail?

Photo of Theresa May Theresa May Minister for Women and Equalities, The Secretary of State for the Home Department

The right hon. Lady is asking me to talk about a Bill that is entirely separate from the one we are addressing today. As I think she knows, in replacing control orders with the terrorism prevention and investigation measures—TPIMs—we have put together a package that includes both the measure itself and increased funds available to the Security Service and the police for surveillance. That is the basis on which we are going forward with that measure and that Bill.

The Bill before us today provides that the amendments to PACE should have retrospective effect. That means that they are deemed always to have had effect, despite the High Court’s judgment in the Hookway case.

Photo of Julian Huppert Julian Huppert Liberal Democrat, Cambridge

I support the Bill, but the purist in me is slightly anxious about the concept of retrospective legislation. Will the Home Secretary say a little more about how normal that is and whether this step might be opening a door for rather more concerning retrospective legislation?

Photo of Theresa May Theresa May Minister for Women and Equalities, The Secretary of State for the Home Department

My hon. Friend sneaked in with his intervention as I was nearing the conclusion of my speech. Perhaps I use the term “retrospective” a little loosely. This is not retrospective legislation in that it merely corrects the decision that has recently been made and puts the situation back to what it had been understood to be. That is supported by Liberty, which has said:

“We do not believe that the proposals are retrospective in their nature as they do not seek retrospectively to create a criminal offence, sanction or other burden. They would, in our view, not fall foul of Article 7 of the European Convention on Human Rights or the common law rule against retrospective penalties.”

Photo of Frank Dobson Frank Dobson Labour, Holborn and St Pancras

Does the Home Office, any other part of Government or the Association of Chief Police Officers have any figures to show how many people have been on police bail for, let us say, more than six months and then are not charged?

Photo of Theresa May Theresa May Minister for Women and Equalities, The Secretary of State for the Home Department

I am not aware of such figures, but the right hon. Gentleman’s question gives me an opportunity to comment on remarks that some lawyers and others have made as to whether the original judgment is in some way a response to a problem that had been getting worse. I am not aware of such a problem. The rules that we are restoring are those that the police have been operating under for the past 25 years. I say to those who have suddenly raised this issue that if they did feel there was a problem they should have raised it sooner. I also say that this Bill is merely restoring the situation to what it been understood to be for the last 25 years, and that I do not think it is an appropriate vehicle for doing any more than that. We have a task to perform today. The Bill achieves that task, and it is right that it is restricted to that.

Photo of David Winnick David Winnick Labour, Walsall North

I am not necessarily opposed to restoring the position to what it was before the court judgment, but I am always anxious about our rushing through all the stages of a Bill, as we are doing today. The Home Secretary has been very dismissive of critics, but my view is that if there was more time, those critics, who may or may not have a very reasonable case, would be able to put their case to Members and there would be further deliberations before we rushed into making law. I have many hesitations in my mind because, as the Home Secretary herself has admitted, when we have previously rushed through legislation, it has not always proved to be useful.

Photo of Theresa May Theresa May Minister for Women and Equalities, The Secretary of State for the Home Department

I understand the point that there have in the past been occasions when emergency legislation has been felt to have had consequences other than what was intended. This is a different kind of emergency legislation however, in that it simply reinstates the situation to what it was understood to be for the past 25 years in terms of the operation of PACE and detention and bail. I say to the hon. Gentleman that the Government have done what we can to ensure that there has been an opportunity for the Bill to be considered. I made the draft Bill available to Members and others on Monday, and it was formally introduced on Tuesday. We therefore made it available early so that people would have an opportunity to look at it. It is a very short Bill, and it does not need to be more than a short Bill because, I repeat, it is simply reinstating the situation to what it has been for the past 25 years.

The judgment in the Hookway case significantly impairs the police’s ability to investigate offences and protect the public. I am not prepared to stand by and ask the police to fight crime with one arm tied behind their back. The Bill will restore vital powers to the police that they have operated under, without complaint from the courts, for the past 25 years. I commend this Bill to the House.

Photo of Yvette Cooper Yvette Cooper Shadow Home Secretary, Shadow Minister (Equalities Office) (Women and Equalities) 12:59 pm, 7th July 2011

We should take the opportunity to pay tribute to the victims of the 7/7 bombings and to their families, as the anniversary is today.

The Labour party supports this legislation, as it is needed to overturn the judgment made on 19 May in the case of Greater Manchester police and Paul Hookway. The Home Secretary has set out the judgment’s implications for policing practice and the difficulties of suddenly treating time spent on bail in the same way as time spent in custody, which was clearly not Parliament’s intention when the legislation was drawn up and is clearly not the intention of this House today. The judgment does cause serious problems for policing operations, for ongoing investigations and, potentially, for the delivery of justice and, most seriously of all, for the protection of victims and witnesses. We should pay tribute to the chief constables, the custody sergeants, the other officers and police staff, who are having to deal with this situation as the professionals that they are.

The situation does mean that the police are not able to recall people from police bail if they have been bailed for more than four days, unless they have new evidence that allows them to re-arrest. It also means that the police are constrained in enforcing bail conditions if the period of up to four days from the initial arrest has elapsed—that has serious implications, especially as 80,000 people are on police bail right now.

Currently, the police will routinely bail people in ongoing investigations but may need them to return to the police station for further interviews, even where there is no new evidence since the original arrest. They might need them to return for an identity parade or for clarification of a victim’s statement, pending advice from the Crown Prosecution Service. There are many such cases where, in practice, there is no new evidence since the time of the original arrest.

The situation also raises serious issues in terms of the application of bail conditions, particularly in domestic violence cases, as these conditions can include important protection for the victim. Such conditions could include someone being prohibited from going to their ex-wife’s workplace, to the family home or to their children’s school. Bail conditions are an extremely important part of protecting the safety of victims and witnesses, and if they cannot be enforced, protection is put at risk.

Photo of Hazel Blears Hazel Blears Labour, Salford and Eccles

My right hon. Friend will have heard the response that I received from the Home Secretary. Does my right hon. Friend agree that, if conditions are appropriate to be applied to those suspected of involvement in serious crime, it is illogical and inconsistent if those same conditions are not at least to be considered and to be available to be applied to those suspected—to those “reasonably believed”, under the new test in legislation—to be involved in terrorism-related activity?

Photo of Yvette Cooper Yvette Cooper Shadow Home Secretary, Shadow Minister (Equalities Office) (Women and Equalities)

My right hon. Friend makes an extremely important point, as we are rightly discussing this measure because of the seriousness of the situation and the need to protect people. In police bail cases, that need often applies in respect of particular individuals—victims and witnesses. In the kinds of terrorism cases that she is talking about, the risk may be much wider and may involve a much wider group of people, so we would expect that additional and even greater protection might be needed. It raises concerns if the security services and police do not have the ability and the powers to provide that protection. She is right in what she says and I know that she is continuing to raise that issue as part of the debate on the other legislation.

Photo of Julian Huppert Julian Huppert Liberal Democrat, Cambridge

Does the right hon. Lady agree that the logical consequence of what Hazel Blears was just saying is that we should be trying to use police bail conditions to deal with terrorist cases, as far as is possible and given sufficient safeguards?

Photo of Yvette Cooper Yvette Cooper Shadow Home Secretary, Shadow Minister (Equalities Office) (Women and Equalities)

There are cases where police bail can, of course, be used and there ought to be cases where we should explore that. Our view remains that there are also cases where that is not possible, which is why we need control orders, the son of control orders or whatever we are calling these things now—we need some other kind of safeguard. Clearly, where more traditional aspects of the criminal justice system can be used instead, they should of course be used. Control orders are always a last resort and should be used only in those circumstances.

We have seen some worrying cases across the country, and this goes to the heart of why emergency legislation is needed now. Hon. Members are right to say that we should bring in emergency legislation only on the basis of very serious consideration; we should never do this lightly and there are always risks involved. However, Parliament also needs to balance the risks, and there are risks to the public and to the course of justice if we do not legislate now.

The National Association of Probation Officers has warned of a case where a suspect who is already on a 12-month suspended sentence for assault and who has five previous convictions for offences against the same partner was arrested again for assault. He was bailed while drugs found upon his person were sent off for analysis, but that may take a week and the 96 hours have expired. His victims are deemed at physical risk and it is hugely important, in those circumstances, that bail conditions should be able to apply. Another case involves the harassment of a former girlfriend by a suspect who has been arrested and released on bail. His phone and computer were taken for analysis, which takes time—far more time than 96 hours. He is not due back on bail until later this month, but his conditions are not enforceable if the current legal state of affairs persists. I have been told of other cases by police officers, including that of someone arrested as he was accused of sexual assault on women he was supposed to help in the course of his work. Further investigations are under way, but his bail conditions included a requirement that he should have no unsupervised contact with women in his professional capacity and, again, those conditions cannot now be enforced.

In many cases, bail conditions were used to give people a time and date for returning to the police station for further interview once further evidence was expected to be in place. Now, even though that further evidence might subsequently have been gathered, the police will still have to go out to look for the suspect and take that extra time to bring them in. So, in addition to the risks to justice and to the victims, this situation is placing considerable extra burdens on police time and resources, causing additional pressures for them, too.

Photo of David Winnick David Winnick Labour, Walsall North

My right hon. Friend is making a powerful case for the situation that existed prior to the court judgment, and I do not dispute what she is saying in any way, as public safety is absolutely essential and nobody in this House is going to challenge that view. We are dealing with the substance of the matter, so does she not have a concern about the amount of time that a person can be endlessly bailed for as they return to the police station and that happens again? Would it not be far better, as far as is possible, for charges to be brought as quickly as possible where there is sufficient evidence to do so?

Photo of Yvette Cooper Yvette Cooper Shadow Home Secretary, Shadow Minister (Equalities Office) (Women and Equalities)

We are talking about wider issues here and, if I may, I will deal with those later. If my hon. Friend wishes to intervene then, I will be happy to take a further intervention from him. I wish to finish the point that I am making and then deal with his point.

The case for rapid action to resolve the situation is extremely clear. Nevertheless, it is important that we set it out in the House to make it clear to the courts what our view and judgment are. The costs and administrative burdens for the police in trying to manage this interim situation should also not be underestimated. There is also a significant risk that clever defendants or defence lawyers might use that interim period as a way to get off on a technicality, which would mean that justice would not be done, the House and Parliament not having clarified the situation for the police and the courts.

It would be irresponsible for Parliament to wait longer to deal with the situation. It is not possible for Parliament to take the risk of waiting for the Supreme Court hearing on 25 July, as thousands of domestic violence victims alone need the protection of enforceable bail conditions right now, not in several weeks’ time. So we do support the legislation, as I explained in Parliament on a point of order within hours of learning about the issue eight days ago.

However, we should reflect on some genuine concerns. We have not proposed any amendments, even probing ones, because we think that the most important thing today is to get the legislation on to the statute book and to restore the position for the police and crime victims as soon as possible. However, the House should also have concerns about the possibility of the use of endless police bail. There are cases, and there have been cases, where people have been left on police bail, including with conditions, long after another suspect has confessed to the offence. There are other cases where investigations have run dry but action was not taken to end the bail arrangements. Long bail can sometimes mean that delays are allowed to develop, and they eventually become counter-productive in securing justice.

Therefore, we should, in due course, have a wider debate about the appropriateness and proportionality of different lengths of police bail and what safeguards are needed. If Parliament, the Government and the police do not have those debates about what we think is appropriate, we risk the courts making those decisions for us. It is important that the police have the powers and the flexibilities to pursue those investigations, but we need to give them support in doing that, and make sure that that is properly reflected in the arrangements that we have. There are issues to do with the fact that the Police and Criminal Evidence Act 1984 has been amended many times and clarity might be needed on wider matters, too. It would be helpful if the Home Office and ACPO considered more closely when, how and for how long police bail is used and whether the current framework is appropriate or needs amending.

In the meantime, the most important thing is to restore to the police the ability to operate in the way in which they have operated, and with the framework with which they have operated, for several decades.

Photo of Steve McCabe Steve McCabe Labour, Birmingham, Selly Oak

I accept my right hon. Friend’s point about not tabling any amendments, but given what she has said about the application of bail conditions, is there not a persuasive argument for having a sunset clause in this emergency legislation so that we deal with the immediate problem but have proper time to debate the issues she mentions?

Photo of Yvette Cooper Yvette Cooper Shadow Home Secretary, Shadow Minister (Equalities Office) (Women and Equalities)

That would have been one way to do it. When the issue came to light last week, we suggested that one option might be to introduce emergency legislation with a sunset clause before considering the subject more widely. The most important thing, given the time we have available, is that the Government have proposed a way to restore the system, and the whole House should support it. I hope that the Government will have further discussions with ACPO about whether any other developments are needed.

As several hon. Members have said, we should never legislate lightly when it takes retrospective effect. Changing the law retrospectively is, in general, undesirable and creates great uncertainty. It threatens natural justice if people end up breaking a law when they did not know of its existence, when it did not exist at the time the act was committed and when they could not have been expected to know that it would exist.

I have thought very carefully about the question and I know that members of the Government have, too. I am clear that a retrospective clause is justified in this case. Indeed, I urged the Minister for Policing and Criminal Justice to include a retrospective clause when I discussed the issues with him last Thursday. In this case, we are simply restoring the law to what we in Parliament thought it was, to what we intended it to be and to that which the police, the CPS and others have been following in good faith for many years. We have made clear our intention and so in this period of uncertainty the police, suspects and others should know what Parliament intends. If we had not made our intentions clear, we would have opened the police and victims up to considerable uncertainty about the prospects for individual cases, especially those under investigation at the moment. It would be deeply wrong for a victim to be denied justice and for the offender to escape on a technicality simply because the crime was committed in the limbo period between 19 May and Royal Assent and the police interviews did not comply with the temporary legal position owing to any confusion.

An even more troubling possibility is that historic cases, in which the standard practice was followed in good faith by the police and CPS, could end up being overturned or dragged back through the courts because of the Hookway judgment. In such circumstances, we should legislate retrospectively but we should be clear that we are doing so because we have considered the seriousness of the issue and that we have made the judgment after serious consideration rather than lightly.

I have some concerns about the process and about why we are doing this now, in such a way. I am concerned about the initial judgment. My right hon. Friend Hazel Blears mentioned the judgment of the judge in Salford, which was confirmed by the High Court judge. Judges, not Parliament, interpret the law and it was the role of the High Court judge to come to a view on what the legislation meant. The fact that the judge came to a new view on the interpretation of the law or a different view from experts, such as Professor Zander QC, is still part of the judicial process. It is possible for us to disagree with the judge’s decision while respecting his constitutional role in making such decisions.

My greatest concern is about the final paragraph of the High Court judge’s judgment, which the Home Secretary quoted. He does not simply interpret the law but makes a practical assessment of the impact of his judgment:

“It seems to me however...the consequences are not as severe as might be feared in impeding police investigations in the vast majority of cases. This is simply because in the usual case a suspect returning on bail will either be released because the evidence is not sufficient to warrant a charge or he will be re-arrested under statutory powers because new evidence has come to light.”

I strongly disagree with that practical assessment and the evidence of cases that the police have to handle at the moment disproves it.

Photo of Michael Ellis Michael Ellis Conservative, Northampton North

That does not tally well with the right hon. Lady’s earlier suggestion that the Home Secretary and others have acted in a dilatory fashion, because the judge himself said in his oral judgment that he did not think that the judgment would have those consequences. Was it not right, therefore, to wait for the written judgment and find out what the consequences would be?

Photo of Yvette Cooper Yvette Cooper Shadow Home Secretary, Shadow Minister (Equalities Office) (Women and Equalities)

No, I disagree. I think that the judge was wrong in that aspect of his judgment. There are serious questions about the fact that there is no sign that he considered any extensive evidence on the practical application of his judgment and about why he did not consider making clear that the judgment should be stayed pending appeal and consideration of the wider evidence. However, that does not go to the heart of the role of the Home Office and the Home Secretary. The Home Office could have done considerable things between the oral statement and the written judgment, rather than simply hoping for the best, which is what it appears officials have done.

Let me turn to the Government’s response. The oral judgment was given on 19 May and Home Office officials were informed soon after that—certainly before the end of May. The Home Secretary and Michael Ellis have claimed that they had to wait for the written judgment, and of course the written judgment brings the decision into effect and can provide further clarity, but that does not mean that everybody has to suspend action and judgment until the written judgment is available. Given what Home Office officials should have known from the oral judgment, they should immediately have notified the CPS and the Attorney-General. The Home Secretary did not explain when she discussed the decision with the Attorney-General or at what point the Attorney-General was made aware of the seriousness of the case.

Photo of Michael Ellis Michael Ellis Conservative, Northampton North

Does the right hon. Lady not appreciate that, at the time of the oral judgment, it could have related only to the instant case before the judge in question? It was only clear later that it would have a wider-reaching effect.

Photo of Yvette Cooper Yvette Cooper Shadow Home Secretary, Shadow Minister (Equalities Office) (Women and Equalities)

The point is that the Home Office should have prepared. Immediately after the oral judgment was issued, it was possible that there would be concerns and Professor Zander knew enough about the judgment to write a considered view in Criminal Law and Justice Weekly on 17 June. He was clearly extremely worried and on that basis he was already offering advice. Home Office officials should have sought information and should have been concerned even on the basis of the oral judgment.

Photo of Theresa May Theresa May Minister for Women and Equalities, The Secretary of State for the Home Department

On a point of clarity, will the right hon. Lady confirm the time line? She just referred to Professor Michael Zander in a way that might give Members the impression that his article was written off the back of the oral judgment. Will she confirm that it was made available after the written judgment?

Photo of Yvette Cooper Yvette Cooper Shadow Home Secretary, Shadow Minister (Equalities Office) (Women and Equalities)

The article was published on 18 June, following the written judgment becoming available on 17 June. He will have needed time to write it, however, and to seek more information and details about the case; Home Office officials, however, chose not to do that—[ Interruption. ] Hon. Members on the Government Benches might think that this is amusing or a case for dismissing the argument, but they ought to consider the serious consequences for domestic violence victims and police operations across the country. Faced with such circumstances, Home Office officials are obliged to consider that risks are involved. They might not have known the final details until the written judgment arrived, but they should have been preparing, asking for further information from the judge and starting to work out options in case Home Office Ministers needed to act fast when the full information became available.

Photo of Keith Vaz Keith Vaz Chair, Home Affairs Committee, Chair, Home Affairs Committee

Evidence was given to the Select Committee on Home Affairs on Tuesday that a note was written by counsel for Greater Manchester police, which could have alerted officials to a possible issue, but my right hon. Friend would need to have the opportunity to read that note.

The point I wanted to make was that there is the Treasury Solicitor’s Department, which is headed by the Attorney-General and the Solicitor-General, so there are resources that could have allowed this issue to be looked at when ACPO was taking advice from Clare Montgomery and Steven Kovats. Does my right hon. Friend agree that that is relevant for the future and that, if alarm bells start ringing again, there is machinery in Government to allow the Home Secretary to have the kind of advice we are talking about?

Photo of Yvette Cooper Yvette Cooper Shadow Home Secretary, Shadow Minister (Equalities Office) (Women and Equalities)

My right hon. Friend is right. He makes his points diplomatically, but the complacency of Home Office Ministers is worrying. They seem to think that they have done everything right in this case, that there have been no delays and that everything has moved as rapidly as possible, but that clearly is not the case. I hope that they will learn lessons for the future from this incident because there clearly has not been rapid movement every step along the way. Whether that applies to what Home Office officials should have done when they received the note on this case, what work they should have done, or what further information they should have sought either from the judge in question or through legal advice at that point, it is their responsibility to prepare options for Ministers, so that Ministers can take rapid judgments, know what their options are and move very fast. That is especially true given the significant risks from this case to the operation of police work and to justice.

My right hon. Friend’s point about the role of the Treasury Solicitor’s Department is important. The point of having the Attorney-General and those solicitors is to be able to seek additional legal advice from them. The Home Secretary said that it is not normal practice for the Government to confirm whether and when they have sought legal advice, but in fact it is very common for Ministers to say that they have had legal advice from the Attorney-General or others. They might not reveal the detailed content of that advice but in this case the Home Secretary is not even confirming whether she has had or sought separate legal advice or whether the Attorney-General provided any such advice to set out options, so that the Government could move fast and deal with this matter considerably faster than has been the case.

Photo of Mark Reckless Mark Reckless Conservative, Rochester and Strood

Will the shadow Home Secretary accept that the Government and the Home Office were not parties in the proceedings? We can see from the judgment that counsel for Greater Manchester police were asked at the end of the oral judgment whether they would like to apply for a certificate in relation to an appeal. To the extent that questions have to be asked, surely they should be addressed to Greater Manchester police about why they did not apply to the judge for a stay or for a certificate despite having been specifically asked about doing so. We should be addressing those questions to Greater Manchester police, who are party to the case, rather than trying to twist this in relation to the Home Office.

Photo of Yvette Cooper Yvette Cooper Shadow Home Secretary, Shadow Minister (Equalities Office) (Women and Equalities)

The hon. Gentleman is right that there are issues for Greater Manchester police in terms of how fast they respond and react and whether they apply for appeals and stays, but the issue for the Home Office is that, in the end, it matters to the Home Office if policing practice and the protection of victims right across the country are jeopardised. His point goes to the heart of my concerns about the way in which the Home Office and Home Office Ministers have responded. There seems to be an attitude that “We’ll let Greater Manchester police and ACPO do their bit; we’ll just sit back and wait until it all comes to us.” Ministers finally acted only when ACPO said that emergency legislation was needed, rather than Ministers and the Attorney-General recognising that they would have to take responsibility for the consequences. Even if Greater Manchester police did not take the first steps, there was still a responsibility on the Home Office and the Attorney-General to go and talk to Greater Manchester police about whether they had applied for a stay of judgment or appeal. That is where there have been delays and, frankly, incompetence in the way the Home Office has responded.

Photo of Bob Stewart Bob Stewart Conservative, Beckenham

I have sat and listened very carefully to the debate. I am no lawyer but it strikes me that the Government have tried to act as fast as they can. We are having this emergency debate at speed because we have to make sure that when a judge makes a wrong decision we put the law right—first, to protect the public and, secondly, to allow the police to proceed properly. Does the right hon. Lady not agree?

Photo of Yvette Cooper Yvette Cooper Shadow Home Secretary, Shadow Minister (Equalities Office) (Women and Equalities)

We do have that responsibility, but my reason for continuing to press this point is that these things will come up again because that is the nature of home affairs and Home Office work. There will inevitably be judgments and other issues that cause problems and suddenly raise difficulties in the criminal justice system. We have dealt with them previously, sometimes through emergency legislation and sometimes through other responses. These things happen and the question is whether, when they happen, the response is fast enough or active enough. My concern is that, if the Home Office continues to be complacent about how it has responded, there will be further difficulties in future.

It is worth considering the time line. We are now seven weeks from the original judgment, three weeks since the written judgment was put in place and two weeks since Ministers were informed. That gap alone between Home Office officials’ being informed of the written judgment, the written judgment’s being published and Ministers’ being told puts Ministers in a deeply difficult position. I have considerable sympathy with the position they were put in when the written judgment came out and was commented on almost the same day by Professor Michael Zander, who said:

“This is a very unfortunate decision if it is not quickly overturned on appeal it will need to be speedily reversed by legislation.”

That criminal expert came out with that statement, the written judgment was published and it was still a week until Home Office Ministers were even told there was a problem. I think that is of concern and that the Home Office should recognise it is of concern.

Photo of David Winnick David Winnick Labour, Walsall North

Given that my right hon. Friend is giving her full support to the Government, is she at all surprised by how sensitive Conservative Members are to any form of criticism whatever?

Photo of Yvette Cooper Yvette Cooper Shadow Home Secretary, Shadow Minister (Equalities Office) (Women and Equalities)

My hon. Friend makes an extremely important point. Given the number of Back Benchers who have leapt up to mention, as part of their intervention, “the speedy action from Ministers” and “the fast response from Ministers”, one might think that a Whip’s note has gone around saying that that might be the phrase to put into every intervention, whatever the point might be.

Our first concern is about the initial delay before the Home Office got the written judgment. I am very clear that more work should have been done between the oral judgment and the written judgment. Then, once the written judgment arrived, there should have been very fast advice to the Home Secretary and the Minister for Policing and Criminal Justice about the risks in this case. Instead, the Home Office seems to have sat on this for a week before Ministers were informed. Once they were informed, it was then important for them to accelerate action because the Home Office clearly had not been acting fast enough before then.

What did happen once Ministers were informed? We still do not know when the Home Secretary discussed the matter with the Attorney-General and we still do not know why it has taken so long for there to be support via the Attorney-General, working with Greater Manchester police and the Supreme Court, to get an expedited hearing for a stay of judgment. I recognise the point that the Home Secretary made about the stay of judgment. Clearly, a series of different issues are relevant, some of which the Supreme Court has raised in relation to its powers. The Court also raised the issue of timeliness because by the time it was considering a stay of judgment, that judgment had been in place for many weeks. Timeliness is always a factor when the Supreme Court takes decisions and those delays might well have made it harder for the Court to bring in that stay of judgment.

Photo of Yvette Cooper Yvette Cooper Shadow Home Secretary, Shadow Minister (Equalities Office) (Women and Equalities)

I shall give way to the hon. Lady, who I am sure will say something about how speedily the Home Office has acted.

Photo of Eleanor Laing Eleanor Laing Conservative, Epping Forest

No, indeed—I have no Whip’s note or other briefing on this matter whatever. The right hon. Lady was statesmanlike in her opening remarks in supporting what the Government and Parliament are now doing out of necessity and—I am not going to say speedily—as soon as it could be done in Parliament, and the whole House agrees that the Bill must be passed today. Might I point out, however, that whereas the right hon. Lady was statesmanlike in her tackling of the issue, she is now grovelling around looking for party political points to make, which can sometimes be unseemly?

Photo of Yvette Cooper Yvette Cooper Shadow Home Secretary, Shadow Minister (Equalities Office) (Women and Equalities)

The hon. Lady might think that the speed with which the Home Office has responded is okay, but I think it demonstrates a worrying level of complacency that might cause problems in future. The reason for making that important point about the delays we have seen is that such delays cause risks for victims and the judicial process. At the heart of the matter is the question of whether the Home Office is prepared to take responsibility for justice in this way, or whether it will just sit back and leave it to the police and ACPO.

The Policing Minister has told us that the Home Office waited for ACPO to conclude that emergency legislation was needed. When he responds, will he state at what point Ministers asked for draft legislation to be prepared, even if only on a contingency basis, because that is important? Ministers should have commissioned emergency legislation on a draft basis as soon as they were informed of the problem and saw the clear advice from Professor Zander that emergency legislation might be needed. Instead, they appear to have waited for ACPO to commission legal advice twice, but it is not just a matter for ACPO. Inevitably, ACPO will always try to make existing legislation work—they are the police and that is their job—but the job of the Home Secretary’s officials was to contingency plan and get emergency legislation on stand-by, yet there is no sign that they did that. Also, they appear to have made no effort to start discussions with the Opposition through the usual channels on how we could get the legislation in as fast as possible. After the Home Secretary was made aware of the situation, it took her a week to raise it with the Opposition and ask whether we would support emergency legislation if needed. The usual channels could have started making contingency plans a week before and we could have had this debate earlier. In the end, the reason for making this point is that in these cases every day matters, because the risks to people who rely on bail protection are considerable and persistent. Therefore, every day matters in how fast we can get this legislation in place.

We support this legislation, will give it a fair wind through the House today and hope that it gets through the House of Lords as rapidly as possible, but I must say to the Home Secretary that it is important when things go wrong and she has to respond that lessons are learnt so that the same mistakes are not made again. There have been a catalogue of delays at every stage of the process, things could have been done faster and we could have moved to resolve this earlier. Unless the Government recognise those delays, I worry that we will see further problems and risks. The Home Secretary cannot always pretend that everything in her Department is perfect; it will not be, and we all know that. A little more recognition when failings take place and learning from them would help us to have a more effective Home Office and a better criminal justice system for the future.

Photo of Lorraine Fullbrook Lorraine Fullbrook Conservative, South Ribble 1:33 pm, 7th July 2011

I am delighted to have caught your eye for a second time in the past hour, Mr Deputy Speaker.

We are debating this emergency legislation today because accepted police practice of more than a quarter of a century has been challenged. The legislation is not only vital, but urgent for maintaining the ability of our police forces across the country to do their job of catching criminals and protecting the public they serve. The ruling by High Court judge Mr Justice McCombe on 17 June—that time spent on police bail over any period should count towards the maximum 96-hour limit for pre-charge detention—has destabilised our police and the very heart of our criminal justice system. In the words of the chief constable of West Yorkshire police, this has left officers

“running around like headless chickens... wondering what this means to the nature of justice.”

As a Member of the Home Affairs Committee, I was fortunate to hear from some of the most senior police officers in the country about the negative effects that this ruling has on the police and the criminal justice system. A staggering 80,000 people in pre-charge bail cases would be affected by the ruling. In Lancashire, where my constituency is, 2,227 suspects would be affected on pre-charge bail. This Tuesday the Committee heard from Steve Bloomfield, a Metropolitan police commander and the lead in the fallout of this case, and Jim Barker-McCardle, the chief constable of Essex police and the ACPO lead in this area. These professionals, who are truly eminent in their field, outlined the detrimental effects of suspects who would normally be released on bail being detained for longer. They were asked whether the police would have sufficient cell capacity as a consequence of the judgment? Chief Constable Barker-McCardle said that they would have the capacity in the short term—for the next few weeks—but that over a period of months they would cope but with some difficulty.

Photo of Mel Stride Mel Stride Conservative, Central Devon

On that point, does my hon. Friend also accept that in the case of mass demonstrations and the arrests that accompany them, it is often physically impossible to detain everyone necessary?

Photo of Lorraine Fullbrook Lorraine Fullbrook Conservative, South Ribble

My hon. Friend is absolutely right that the fallout from the judgment would be exacerbated by mass arrests resulting from public order incidents. Without this urgent and necessary legislation, we will need more cells than we currently have. Otherwise, suspected criminals will be set free until they commit a further crime. As my hon. Friend has said, the fallout from mass arrests as a result of public order incidents would increase.

This judgment also puts victims of crime and the general public at greater risk. Chief Constable Barker-McCardle was asked by the Home Affairs Committee whether this was an issue of public safety, to which he responded that it undoubtedly was. He said, “unhesitatingly, unqualified –yes”.

I was astounded to hear that under the judgment a situation could arise in which a perpetrator of domestic violence would be perfectly able to revisit the home of the initial crime, breaching a bail order, and the police would not be allowed to detain such a person for the breach unless a new offence was committed. Under these circumstances, the perpetrator cannot be detained until a further violent incident occurs. We have a responsibility to victims of domestic violence to ensure that this madness is not allowed to continue and that we allow the police to do their job and protect the public from crime.

I am glad that the Bill is retrospective, which will prevent people taking action in the courts. The judgment prevents the police doing their job and puts victims at greater risk. I am delighted that the Government have introduced the Bill so speedily and with such urgency. I am sure that it will be supported by Members on both sides of the House.

The judgment by Mr Justice McCombe has upset the balance in our criminal justice system. For 25 years the police have been relied upon to catch criminals and we entrust the courts to ensure that justice is served. This emergency legislation redresses that balance by giving the police the assurance that they can continue to operate in the way they have for many years—protecting the public. I am sure that the House will give the police that assurance today by passing the bill, which is essential to put things right.

Photo of Steve McCabe Steve McCabe Labour, Birmingham, Selly Oak 1:38 pm, 7th July 2011

I, too, will support the emergency legislation, but two questions seem to have been raised: first, what happened; and secondly, what are the implications of the legislation itself? On the question of what happened, there seem to be two different versions of events. The Government version suggests that they acted within one hour and two minutes, and we have heard a lot of support for that view, with Members telling us about the speed of events. Another version suggests that the clock started ticking on this issue on 5 April, when the judgment was made in the Salford court, and that it has been going on for three months. There has been a crucial judgment, albeit after a 25-year gap, about the interpretation of a piece of parliamentary legislation that identifies a drafting error that no one appears to have spotted in 25 years, which I find slightly strange.

Photo of Steve McCabe Steve McCabe Labour, Birmingham, Selly Oak

I will in just a second.

I understand that the Government need to deal with the immediate situation, but I find it slightly strange that we are going to do so by simply sweeping the matter under the carpet, because it is worth holding a debate in the future about how the situation could have occurred.

Photo of Steve McCabe Steve McCabe Labour, Birmingham, Selly Oak

They are queuing up for me, but I will go first to Michael Ellis.

Photo of Michael Ellis Michael Ellis Conservative, Northampton North

Does the hon. Gentleman not realise that the alleged drafting error in the 25-year-old Bail Act has been referred to before in learned texts, and that other judges have used common sense in applying the law as they thought Parliament intended? That is where there has been a departure by the judge in the instant case.

Photo of Steve McCabe Steve McCabe Labour, Birmingham, Selly Oak

All judgments depend on what the judge thinks Parliament intended; that is the point. We have someone who was able to draw a different conclusion, however, and as we have reached this position I am happy to deal with the legislation today, but it would be useful if the Government gave us a further opportunity to debate the implications of the situation.

Photo of Robert Buckland Robert Buckland Conservative, South Swindon

I was going to try to help the hon. Gentleman by saying that the matter had never been ruled upon—it had never been a matter of controversy. Practitioners and everybody involved in the system had assumed that the clock would stop on release from custody, but, for the first time in 25 years, that particular decision was taken and it confounded everybody who has experience of the criminal justice system.

Photo of Steve McCabe Steve McCabe Labour, Birmingham, Selly Oak

That is largely the same point as Bob Stewart still wish to intervene?

Photo of Bob Stewart Bob Stewart Conservative, Beckenham

I was going to make just one point—about whether the public have been put at more risk because it has taken some time to bring in this legislation, and about whether the police have been able to manage the situation. It seems that no one has really suffered apart from the police, who have had to manage the situation, and that now we require to put the matter right. If the public have not been put at risk, that is great, and if the police have been able to manage, that is good, too, so let us get the legislation through as fast as we can.

Photo of Steve McCabe Steve McCabe Labour, Birmingham, Selly Oak

We agree on getting the emergency legislation through; that is why we are here. But it is a little premature to say that no one has been harmed by what has happened, because that remains to be seen.

It can be argued that what happened on 5 April led to people thinking that they were dealing with a little local difficulty, because that is a perfectly reasonable conclusion to draw, but it is reasonable also to say that, when the judgment was made on 19 May, people should have started to think that it had wider implications and alarm bells should have started to ring. It appears, however, that at that point no alarm bells whatever rang in the Home Office.

On 24 June, by which time the written judgment was available, no one thought it sufficiently important to be dealt with on the Friday afternoon. The Home Office received it on 24 June and waited until the Monday—the whole weekend—before starting to consider its implications.

The Home Secretary was dismissive of my comments on Michael Zander’s article, but here was a respected legal expert giving a clear warning on his concerns about the judgment. I do not know whether the Home Secretary knows, and I am quite happy to table a parliamentary question, but I should be really interested to find out whether the Home Office takes that journal, Criminal Law and Justice Weekly . I imagine that it does, and I therefore presume that somebody whom the Home Secretary employs reads it, so we should not be quite as dismissive of Michael Zander’s piece as she suggests.

Photo of Mel Stride Mel Stride Conservative, Central Devon

Does the hon. Gentleman not accept, however, that the article was published after the written judgment? That is the critical point.

Photo of Steve McCabe Steve McCabe Labour, Birmingham, Selly Oak

Presumably, one reason why that guy is one of the country’s leading legal experts is that he, rather remarkably, anticipated such a judgment and was able to give some advice and guidance on what might be necessary if it were so. I am not therefore too concerned with that point.

Are we seriously being asked to believe that Ministers and officials sit in the Home Office and wait to see whether the police have any concerns, and that if the police do have concerns, they e-mail, phone or send a carrier pigeon to the Home Office at which point Ministers suddenly start to take their responsibilities seriously? If that is what we are being asked to believe, I have a suggestion for the Home Secretary: why does she not make some cuts by sacking some of her useless officials, rather than police officers? It sounds as if they are not serving her particularly well.

The hon. Member for Beckenham, who has left his place, asked whether it was true that no one had been harmed as a result of the judgment. We do know, as the Minister for Policing and Criminal Justice said, that 80,000 criminal suspects were affected by the decision, and the implications of it are one obvious reason why we are here today.

I am not entirely sure that I agree with Lorraine Fullbrook, who said that there were no problems with detention, because earlier this week I read a report stating that, certainly in the west midlands, the police are decommissioning detention cells as a result of the budgetary savings that they are required to make, so in some parts of the country there may be pressure on police cells as a result of the situation.

Photo of Lorraine Fullbrook Lorraine Fullbrook Conservative, South Ribble

I was citing evidence that was given to the Home Affairs Committee, and the hon. Gentleman, as a fellow member of the Committee, was at the relevant session on Tuesday.

Photo of Steve McCabe Steve McCabe Labour, Birmingham, Selly Oak

The hon. Lady may remember that during the same evidence session the police officer concerned referred to 5,000 as opposed to 80,000, but under further examination we discovered that he was talking about the Met police area rather than the whole country.

I plan to support the legislation, because we are where we are and I do not want to make the job of the police any more difficult. The Government’s police cuts, in what looks like a concerted attack on Britain’s policing institutions, are making their job hard enough, and I have no desire to make it any worse, but I do not accept the Government’s version of the events that brought us here.

I have a question about how the emergency legislation has been framed. Earlier, the Home Secretary cited Liberty as an organisation that supported it, and I think I am right that Justice is one of the others, but Liberty makes an interesting case about the lack of safeguards in the legislation and a persuasive case for a sunset clause, whereby we deal with the immediate problem but then, at a more leisurely pace, look at the wider issues. Given that the problem went undetected for 25 years, that may be a worthwhile route to pursue.

On the retrospective nature of the legislation, I agree that it is necessary in order to deal with those 80,000 cases—and probably even more so in order to deal with what happens between now and 12 July, when it comes into effect. However, our law—I think this is the point that Dr Huppert was alluding to—relies on citizens being able to predict in advance when the act of a public authority will be lawful. Introducing a retrospective clause, albeit for understandable reasons, creates a situation whereby something that someone was doing yesterday, reasonably assuming it to be lawful, could be unlawful tomorrow, so that retrospectively they could suffer the consequences. That has major implications for the way in which citizens should view their relationship with the state. I do not object to the retrospective aspect, but it leads to an argument for a sunset clause so that we could have an opportunity, at some point in the future, to consider the implications of having to make such judgments.

Members have mentioned the problem of the length of time for which people may be held on police bail, particularly where it has conditions attached. The shadow Home Secretary used the example of bail restrictions designed to protect the victim from the alleged offender in domestic violence cases. I can understand that. However, I can think of a case in my constituency where a constituent had a bail order applied to him for over 12 months, and one of its restrictions was that he could not use his bank account because the case involved a fairly complex fraud. As a result, he had immense difficulty in meeting his daily living expenses. In the end, all the charges were dropped and he was never brought to court for anything at all. There is already a provision in PACE whereby, when the police apply for an extension, they have to give assurances that they will not take undue time in dealing with the matter and having excessive periods of bail.

These provisions raise once more the issue of bail conditions. We are putting through legislation to deal with a very particular crisis, but in the course of examining it we are opening up wider questions that would merit a much broader debate at some point in the future. Even at this stage, the Government could consider a sunset clause. They are getting absolute co-operation today in dealing with the immediate problem that we face: whether that is partly their own fault or entirely the fault of the courts is a matter of debate. In return for that, the emergency legislation should be used only very sparingly. It is not unreasonable for Parliament to say that the issues that are raised while emergency legislation is being passed should be subject to much greater debate and scrutiny in future.

Photo of Tom Brake Tom Brake Liberal Democrat, Carshalton and Wallington 1:53 pm, 7th July 2011

Let me start, Mr Deputy Speaker, by apologising to you and to other Members for my brief absence from the Chamber. I had to attend the Programming Sub-Committee on the Legal Aid, Sentencing and Punishment of Offenders Bill. I must say that the process that took place therein would not have been out of place in a “Carry On” film.

As Members will know, we are having this debate because the High Court has ruled that suspects cannot be bailed for longer than four consecutive days, or 96 hours. That decision comes after a ruling from Salford magistrates court that the police could not detain suspect Paul Hookway again because his “detention clock” had been running while he was on bail—a ruling that has immediate effect. It is clear that the damage that this would have done to police investigations had we not taken the action that we are taking would have been very substantial in stopping the police being able to keep track of a suspect while they continued their investigations, collected new evidence, and so on. Given that that would have affected more than 85,000 people across England and Wales, it was clearly necessary for us to debate emergency legislation and implement it as soon as possible.

However, I would like to take this opportunity to raise some concerns. Liberty’s briefing, which I support, includes the perhaps understated comment that it is

“somewhat surprising that this appears to be the first time that the issue has arisen in the 25 years that the PACE Act has been in force.”

Indeed, other Members have made that point. It is concerned about having a requirement to stick to a consecutive 96-hour period, stating:

“Unduly limiting the period for which a suspect may be bailed by police could have the effect of encouraging premature or inappropriate charging with all the injustices that would flow. It could also have the effect of encouraging police to detain for the maximum (96 hour) period in circumstances where a suspect could be released earlier thereby supporting prolonged detention rather than release on bail.”

Those are genuine concerns which have been supported in other representations that I have received. Although the action we are taking is necessary, there is no possibility today of our debating and perhaps amending these clauses to reflect some of the concerns about the use of police bail. Liberty goes on to say:

“While 96 hours may well be too short a limit to allow effective further investigation in more complicated cases, it should not be the case that police bail can go on forever.”

It also notes that

“police bail can have attached to it a number of highly onerous conditions.”

I should like to refer to a couple of anonymised cases that highlight some of the issues of police bail and, in some cases, its very extended use. A barrister contacted me to say that he was aware of a serious fraud case where certain suspects were on bail for a period of two years and 10 months, and released from it only recently when a trial of some of the other suspects in the same investigation ended with acquittals or a hung jury. He referred to another case in which he was instructed where the period was 18 months—from December 2007 to the point of charge in June 2009. He accepts that investigations will sometimes take a long time to progress, particularly in cases involving high-value frauds, as in the two that he cited, which I have now put on the record. He goes on to highlight the pernicious impact of police bail, particularly regarding the obtaining of restraint orders for the assets of the accused. He says that although there will be occasions where such restraint orders are justified, perhaps to ensure that criminal assets are not dissipated, their impact is substantial and can sometimes affect the ability of the accused to pay their mortgage, for instance—and of course such people often remain unconvicted.

It is legitimate, in the limited time available to us, to raise those points and to flag up the fact that while emergency legislation is necessary, we need to be careful about the implications of police bail and its uses and to ensure that it is not abused. Liberty says in its briefing that we might at some point—it suggests in the Protection of Freedoms Bill—want to consider a statutory time limit on the use of police bail. It suggests that the statutory limit for pre-charge bail should be set at six months. I am not sure whether I support that contention—I suspect that in fraud cases, in particular, it would be rather hard to deliver and perhaps insufficient—but it might be appropriate for us to debate the subject at a later date.

Photo of Robert Buckland Robert Buckland Conservative, South Swindon

A potential solution to that issue would be the imposition of a time limit in most cases, unless there was a particular element, for example fraud, which would bring the applicants back to court to apply for an extension. That could be a way around the problem that my hon. Friend is so eloquently adumbrating.

Photo of Tom Brake Tom Brake Liberal Democrat, Carshalton and Wallington

I thank the hon. Gentleman for his helpful intervention. He is knowledgeable in these matters, and I am sure that what he suggests would be an appropriate solution.

The Law Society has also made representations to Members. As well as supporting a length of time for which pre-charge police bail applies, it is keen that the police should admit people to pre-charge bail only when it is necessary. If people voluntarily accept that they must attend, it may not be necessary to put pre-charge bail conditions in place.

It is clear that there is an urgent need to implement this emergency legislation. I am pleased that the Government are taking urgent action on this matter, and I wish the Bill a speedy passage through the House today.

Several hon. Members:

rose —

Photo of Nigel Evans Nigel Evans Deputy Speaker (First Deputy Chairman of Ways and Means)

Order. Seven Members wish to speak and I will call the Minister for Policing and Criminal Justice at 10 minutes to 3, because the debate is time-limited. Members should therefore be considerate of other Members who wish to speak.

Photo of Keith Vaz Keith Vaz Chair, Home Affairs Committee, Chair, Home Affairs Committee 2:01 pm, 7th July 2011

It is a pleasure to follow Tom Brake. I congratulate him on the recent announcement of his elevation to the Privy Council.

The Home Secretary is in the enviable position of coming to the Dispatch Box with the support of Opposition Front Benchers—who seem to have disappeared temporarily; they are hiding behind the Chair—and that of the Liberal Democrat spokesman, ACPO, Liberty and every police officer in the country. The only person missing is His Holiness the Pope. Everybody seems to accept that it is vital that the Government get the legislation through as speedily as possible, within the time frame that was set out by the Minister for Policing and Criminal Justice. I thought he was very generous in saying that we would have until 3 o’clock to complete our debate, because everyone who has spoken so far has said that they agree absolutely with everything that the Government are doing, as do I. I shall learn from my own lesson by speaking as briefly as I can.

I thank the Home Secretary for showing great courtesy to the Home Affairs Committee. She promised us a copy of the draft Bill by 6 o’clock on Monday and we received it. She then appeared before the Select Committee on Tuesday. This may seem like déjà vu because there are so many members of the Select Committee here. In fact, we could adjourn the House and straight away be quorate. This is a model not just for emergency legislation, but for the way in which the Government should deal with Select Committees. If she carries on like this, our next report might have to recommend her for canonisation. [ Interruption. ] Steady on. I said only that we might have to recommend her for canonisation.

Photo of David Winnick David Winnick Labour, Walsall North

There would be a vote against, I can assure my right hon. Friend.

Photo of Keith Vaz Keith Vaz Chair, Home Affairs Committee, Chair, Home Affairs Committee

I am sure that there would be a vote against it, probably led by my hon. Friend Mr Winnick.

It is important that Parliament is kept informed. The fact that this legislation had to be scrutinised in this way meant that the Home Secretary’s presence this week was very helpful.

Government Members need to be mindful of the fact that Opposition Front Benchers are supporting the Government on this matter. Government Members were a little unfair to the shadow Home Secretary. It is right that she is able to raise issues concerning the time line. Select Committee members from both sides of the House necessarily raised that issue with the Home Secretary on Tuesday, and indeed with the chief constable of Essex and the commander in the Met who deals with these matters. I commend Lorraine Fullbrook and my hon. Friend Steve McCabe for their speeches. Although they disagreed on issues concerning the time line, there was absolute agreement with what the Government propose, just as there is unanimous support for it in the Select Committee.

I want to raise two issues with the Home Secretary. The first relates to the position of the Attorney-General and the importance of Law Officers being involved in this process. As the Home Secretary said and as I know from being a Parliamentary Private Secretary to the Attorney-General and the Solicitor-General and a junior Minister in the Lord Chancellor’s Department in the last Government, advice given by the Attorney-General or Solicitor-General is by its nature confidential to the Government. However, when this case was first decided on in Salford, I think it was incumbent on Greater Manchester police, who had conduct of this matter, to inform Home Office officials about it, and I am sure that they did. I have not checked the time line, but I am sure that is what they said they did. The Home Office officials should then have consulted the law officers. After all, the Attorney-General and Solicitor-General have superintendence over the Director of Public Prosecutions, whose role is extremely important in these matters.

I am sure that if Mark Reckless catches your eye, Mr Deputy Speaker, he will talk about the role of ACPO in this matter. Of course we are interested in the role of ACPO, because under the new landscape of policing, ACPO will be reformed. In making this legislation, we are putting a lot of faith in the advice given to ACPO by two Queen’s counsel, and in the advice that it gave Ministers. The chief constable of Essex clarified after the evidence session that he finally told the Minister for Policing and Criminal Justice last Thursday that it was time to go back to the House to pass legislation, which is what the Minister told the House last Thursday. The chief constable had originally told the Committee in open session that it was the day after when he finally made up his mind.

I do not think that these issues ought to be left to ACPO. They are serious issues that ought to occupy the time of Home Office officials. I hope that Home Office officials in this case did alert the Law Officers. I am not asking for a time line from the Minister when he replies, but it would be nice to know whether that happened. I believe that the Law Officers and the Treasury Solicitor’s Department have a role in this, because at the end of the day, it is they who have to go to the courts to represent the Government. I accept what the Home Secretary says and that she has no locus standi in these matters, but this needs to be kept under review. If we look to the future rather than the past, and accept that what the Government have to do, as outlined by the Home Secretary, is the right approach, we should be aware that these things may well happen in the future. I know about the points made by Professor Michael Zander. I have not put down a parliamentary question to ask whether The Criminal Law Review, where he wrote his article, is standard reading in the Home Office or the Law Officers’ Department.

Photo of Theresa May Theresa May Minister for Women and Equalities, The Secretary of State for the Home Department

The right hon. Gentleman is setting out his concerns in relation to the time line, and much has been made by his right hon. and hon. Friends on this matter. Every reference is being made to the legal advice. I am sure that with his immense experience at the Home Affairs Committee, he will accept the role that ACPO had, not only in seeking its own legal advice, but in looking at the operational implications. Understanding whether the police could operationally work within the judgment was a crucial part of the decision making in this matter.

Photo of Keith Vaz Keith Vaz Chair, Home Affairs Committee, Chair, Home Affairs Committee

The Home Secretary is absolutely right; the operational decisions have to be taken by ACPO. I just say to her that in her new landscape, ACPO’s role will change. She may therefore want to consider whether this area should be led by whatever ACPO becomes or whether it should be another part of the new landscape. This issue might happen again. I want to make it absolutely clear that none of this is the fault of Ministers. We raise the time line only—at least I raise the time line only—because should this happen again, we may need to look at the way in which things develop.

On that note, I will terminate my speech, Mr Deputy Speaker, so that I can earn some brownie points for the future.

Photo of Nicola Blackwood Nicola Blackwood Conservative, Oxford West and Abingdon 2:09 pm, 7th July 2011

It is a pleasure to follow Keith Vaz. As always, I agree with much of what he says, if not quite all.

I rise, of course, to speak in support of the Bill. It has yet to be made entirely clear to me exactly how it could have been thought appropriate to put public safety at risk for the sake of a literalist interpretation of the Police and Criminal Evidence Act 1984 that flies in the face not only of the intentions of Parliament in passing the Act in the first place but of a full quarter-century of practice and interpretation of it by police, defence lawyers and judges up and down the country. Surely if Hansard could not have acted as a guide, case law might have served that purpose. I accept that sections 41 to 44 of the Act may leave the point unclear on the face of it, but given that parliamentary debates show the clear original intention that a suspect should be detained and questioned for 96 hours in total, rather than for only 96 hours following arrest, not to mention the precedent of 25 years of criminal law, one would have hoped for a little common sense, especially considering the stakes at hand.

As has been stated, Mr Justice McCombe was of the opinion that the consequences of his judgment were

“not as severe as might be feared”.

I am afraid that, as has also been pointed out, that was not the view of the chief constable of Essex, who is the ACPO lead on police bail, or of Commander Steve Bloomfield of the Met, who gave evidence to the Home Affairs Committee on the subject on Tuesday. They are of the opinion that not only does the ruling throw into disarray the investigation and case management of the more than 80,000 suspects in this country who are currently on police bail, but it renders any conditions attached to that bail all but unenforceable.

That has deeply worrying public protection implications for victims and witnesses of violent crimes, and particularly for victims of domestic abuse. Suspects who have been arrested for domestic violence-related offences and released on bail are likely to have conditions attached to that bail, designed to protect their victim. In the absence of those conditions, the police have lost not only part of the time needed to investigate and build solid cases against violent offenders, but a tool used to protect victims and witnesses while they do it.

I know that ACPO has issued guidance to police forces on how to protect victims and witnesses in the short time that remains until the Bill is passed, but will the Minister give the House an assurance that the Home Office is doing everything it can to offer additional support to ensure that victim and witness protection is in no way compromised by this irresponsible judgment?

It is entirely appropriate, in this case, that the Bill is retrospective. In almost every other instance retrospective legislation would be controversial, but in this case I believe the Bill is intended merely to create continuity, not to create new taxes or offences. As I understand it, the retrospective nature of the Bill is necessary to ensure that no criminal cases or convictions that have proceeded in the gap between the initial judgment and the passing of the Bill are rendered unsafe. I wonder whether, in his winding-up speech, the Minister might be able to confirm that.

From looking into this issue, the only area of the bail system that seems to me to need further consideration that will be impossible within the context of the Bill is the issue of time limits and overly onerous conditions. At the moment there are no statutory time limits on bail, and there are uncertain guidelines for magistrates as to appropriate conditions to be placed on bail. As a result, a suspect could theoretically be left on bail indefinitely. Although I am aware that the Crown Prosecution Service must charge someone suspected of a summary offence within six months, it seems to me that the current system of indefinite bail should be considered in the context of wider policing and justice reforms in future.

I will close now, so that we can make progress. Needless to say, I think it is entirely appropriate that this emergency legislation has been brought forward today, to make it absolutely clear that the detention clock may be stopped by bail. It is not just a matter of convenience for the police; it is a matter of justice and public protection.

Bailing suspects while police continue investigations ensures that police are not pressured into premature or inappropriate charging that could result in all manner of miscarriages of justice. It means that police are not tempted to try to detain people for the maximum 96 hours needlessly, when release on bail would be more proportionate to the offence and would not pose any risk to the public. Most importantly, bailing suspects with conditions means that victims, witnesses and potential victims of violent offences can be better protected by the police while the case against an offender is investigated and a conviction secured. The Bill will help the police do their job better and keep the public safer, and as such it has my full support.

Photo of Frank Dobson Frank Dobson Labour, Holborn and St Pancras 2:14 pm, 7th July 2011

It is the anniversary of the bomb outrages of 7 July, and the bulk of the people who were killed and maimed in those outrages were in my constituency. That is one reason why I would not want anything to happen that made life and work more difficult for our police service. Like the ambulance service and the fire service, the police are different from the rest of us. When something disastrous occurs, the rest of us prudently run away. The police, like the firefighters and ambulance crews, rush in the opposite direction to offer aid and assistance. Nothing that I say should be interpreted as being against the police.

I welcome the Bill and accept the need to clarify the law so that it is what everyone thought it was when it was passed by the House 25 years ago. If there was any ambiguity in it, I think I am the only guilty party present in the House today. I was a Member at that time, and I do not think anyone else here was.

Clearly, being on bail is better than being in jail, but being on bail is being not quite free. A considerable number of people are released on police bail and eventually turn out not to be guilty of anything. We need to remember that bail is applied to our fellow citizens, and we need to try to protect them from what is unreasonable. I have had cases drawn to my attention in the past few years of people on greatly protracted periods of bail. I do not believe that that is acceptable.

It seems to me that there has been a gradual build-up of protracted periods of bail. My understanding is that neither the Home Office nor the police have the faintest idea whether that is true, because they do not have any figures. I urge the Minister to accept that it would be a sound idea for the Home Office to start collecting such figures, so that we have a measure of the problem. Clearly, given the need to clarify the law urgently, we do not have the opportunity now to consider properly what constraints might be put in place to protect people against unjustifiably protracted periods of bail, but we need to consider introducing such constraints.

There might be objections to making the extension of bail subject to a judicial process, because in at least some cases the police might not wish to disclose publicly at that point what evidence was available to them. However, we do need some constraints, and I wonder whether the Minister will accept that if he takes advice from ACPO, he might also give it some advice so that the chief police officers take more seriously the problem of protracted bail. We could say, for instance, that if bail goes beyond a year, it has to be renewed with the specific personal consent of the chief constable of the area concerned. That might turn out to be a useful management tool, because it would draw to the attention of the chief constable how many cases were particularly protracted.

I hope that we can at least agree in principle that in future, we need some measurement and logging of protracted periods of bail, and some constraint on them. We owe that to our fellow citizens. It is always worth remembering that all the people who are on bail are innocent until charged and found guilty. They are our fellow citizens, and we need to remember that.

I strongly support the Bill, but I hope that we will consider the problem much more seriously and at greater length, and perhaps with a little more sympathy for people who are out on bail, in the near future. It is not something that we can knock forward for another 25 years.

Photo of Gareth Johnson Gareth Johnson Conservative, Dartford 2:19 pm, 7th July 2011

It is a pleasure to follow Frank Dobson. I am sure that he would agree that the reason for this debate is a surprising decision by the High Court that clearly needs to be overturned. The decision highlights the problems that can occur when courts use the literal rule when interpreting Acts of Parliament, and do not look closely enough at Parliament’s intention. It is regrettable that in this case, Parliament’s intention did not prevail over the literal interpretation of the Police and Criminal Evidence Act 1984.

The Hookway case effectively prevents the police from bailing someone for more than 96 hours. Clearly, that situation cannot be allowed to prevail. I spent many years working in the criminal justice system, and I have dealt with a number of warrants for further detention. In my experience, they are not rubber-stamped by the magistrates courts, but very carefully considered. They are also fairly rare, and even rarer when the suspect has previously been on bail. However, the decision in Hookway has clear implications far beyond that case, hence what was previously a necessary intention to change the judgment because of a narrow interpretation of the case very rapidly became an urgent necessity, because of the wider implications that we now know exist in Hookway.

One area where that judgment will have the greatest impact is, I believe, identity parades. Suspects are often released on bail so that they can return for ID procedures to be carried out. They are booked into custody for that to happen, at which stage the detention clock recommences. The Hookway case actually prevents that from happening —it has stopped a perfectly logical ID parade procedure from taking place in future—and undermines all the work that has taken place to provide effective ID parades.

The case also affects procedures when suspects are bailed more generally, because they are usually placed temporarily and technically back into custody when charging takes place. That cannot now occur without adequate revision of the Hookway case, which the Bill seeks to implement.

During the debate, it has been said a number of times that the police can detain initially for a 24-hour period after the custody sergeant has given his authorisation. That is correct, but it is also the case that it is subject to a review by an inspector after a six-hour period, and then twice more after successive nine-hour periods have elapsed. The checks and balances that we want to see in place exist while a suspect is in police custody, and indeed thereafter.

I therefore support the Bill. The only danger is that it could be misinterpreted—the police might believe that there is no longer a requirement for them to act in an expeditious manner. I sincerely hope that the police will not see the Bill as some sort of green light to keep suspects on bail for an inordinate period before any charging decision is made. That was the point that my hon. Friend Mr Buckland tried to make—he came up with some suggestions on how we can ensure that there is adequate provision to prevent that from happening, and to ensure that there is a greater degree of certainty than is currently in place. Liberty is suggesting that a period of six months should be the maximum. Like my hon. Friend, I am cautious about having a prescribed period, but there needs to be clear justification when suspects are kept on bail for lengthy periods. We would all agree that that situation helps neither the suspect nor the victim of the crime.

I have dealt with numerous situations in which people have been bailed for the inordinate periods that my hon. Friend mentioned. There is little recourse for those people, other than making a lengthy and costly judicial review application to the High Court. They simply have to suffer that inordinate delay and return again and again to the police station, waiting, and sometimes hoping and pleading, for a decision to made in their case.

One positive aspect of this situation is the opportunity it has given to us to look at the issue of the length of police bail and the issues that surround it. I hope that we can look for some improvements in future.

Photo of Julian Huppert Julian Huppert Liberal Democrat, Cambridge 2:25 pm, 7th July 2011

I shall try to be brief, so that we can conclude the debate. I support the Bill, for the reasons that have been set out admirably by right hon. and hon. Members on both sides of the House. I am concerned about any form of exceptional legislation—it is something that we should always be extremely guarded about, whatever the reason for it is—but this is exceptional legislation, and I understand absolutely why we need it. There is no issue with that, but I have a number of concerns about police bail in its wider sense, as has been discussed. I shall therefore not focus on the legal niceties of the Hookway case—that has been discussed already—but I want to say a few things about police bail in the wider sense.

First, the Bill is clearly a necessary clarification of the law—there is no doubt about that. Looking at previous legislation, it is clear that the Hookway case is a matter of interpretation. The best thing to do is to make its interpretation easier for judges and lawyers in future. I am tempted to talk about how legislation is drafted in this country—we do not always seek to avoid such problems—but I will restrain myself from doing so in any great detail.

My one concern is the retrospective nature of the Bill and saying that the amendments are

“deemed always to have had effect”.

I should like to place on record my gratitude to the Home Secretary for clarifying that in her earlier remarks, but I want to flag up now that we should be very cautious and careful in examining anything that purports to be retrospective. We should not allow it to sail past, but carefully ask questions about the rationale for such measures.

One question that I did not put to the Home Secretary, but to which the Minister for Policing and Criminal Justice will perhaps respond, is on a topic in which I am not normally interested: the royal diary. Are we clear exactly when we will get Royal Assent to the Bill?

There is urgent need for wider reform in this area, and I hope the Government return to it, and that they do not end with this Bill.

My second point is that it was absolutely right for a number of leading lawyers, including a former Solicitor-General, to today raise concerns about some of the abuses of police bail. I do not agree with their comments on the Bill—they called for it not to go through, but I believe that it is absolutely necessary—but the Home Secretary needs to introduce greater safeguards to prevent abuse of such wider powers.

The Bill returns us to a position in which there is no statutory time limit, as we have already discussed, and the police can impose a number of conditions. That means that police bail can be very oppressive. I am particularly concerned about that in the context of peaceful protest. In the past couple of years, we have seen a number of cases of the use of pre-emptive arrest before planned, legal and peaceful protests. In 2009, 114 environmental protesters were arrested at the Iona independent school in Sneinton, Nottingham. They were arrested shortly before a planned protest at an E.ON power station. They were then released without charge on police bail, which prevented them from getting involved with the protest. Potentially, restrictive police bail conditions give police the cumulative power to extinguish the right of peaceful protest—especially for time-sensitive demonstrations—which we should all wish to see supported. There was a similar case of police bail during the occupation of Fortnum & Mason on 26 March this year, which I have discussed in the Home Affairs Committee.

I agree with Liberty and other hon. Members who say that we should consider a time limit. That time limit should be proportionate both to the complexity and the severity of the case. This is not the Bill to do that, as obviously we could not use it to do the issue justice, but I hope that we could consider it in the plethora of other Home Office Bills before Parliament. It would be simple to do it via the Protection of Freedoms Bill or the Terrorism Prevention and Investigation Measures Bill. One could also look at the issue of bail for immigration in that context, because there are some questions about that that need to be looked at.

There is a slightly bizarre lacuna, introduced by the last Government, in the police bail powers, which is that pre-charge police bail is not allowed in terrorism-related cases. It is important to mention that today, the sixth anniversary of the London bombings, because we have made a mess of how we deal with terrorism cases. We have warehoused people under a system outside the normal legal framework. I have argued that we should use the police bail system, which offers similar restrictions and controls to what is proposed in control orders and the Terrorism Prevention and Investigation Measures Bill. It differs in detail, of course, but it does fit within the normal legal framework. I was delighted by the comments of the shadow Home Secretary—in stark contrast to the shadow Minister on the Terrorism Prevention and Investigation Measures Bill—when she agreed that police bail should be explored where it can be used for terrorism offences. That is a great step forward. It may not be appropriate in every single case, but we should have a system—with appropriate safeguards, via the Home Secretary’s applications, as I outlined in the Bill Committee—so that police bail could be used when possible for terrorism cases. That would help to move us towards a normal legal process.

I well understand the urgency behind the Bill and I do not wish to detain the House any longer. I urge the Home Secretary to consider all the issues that have been raised and the importance of getting police bail right, when the rush is over. We need to ensure that we safeguard peaceful protest, improve our national security and restore our liberty. It would be great to do all that at once. If we controlled police bail better, we could use it in terrorist cases to give us due legal process, security and liberty, as well as more of the normal rule of law.

Photo of Robert Buckland Robert Buckland Conservative, South Swindon 2:31 pm, 7th July 2011

The liberty of the individual should be a matter for this place first and foremost, so the fact that this is emergency legislation should not be a cause of embarrassment or shame—it should be welcomed. Judges have an important role in interpreting the law. Their role is primarily to interpret rather than to enact. That is why I am entirely content that it is this place that will make the important decision about the ambit of police bail. It is not a matter for shame, but nor is it quite a matter for celebration, bearing in mind the fact this House is a busy place and we have a lot of work to do.

It should perhaps be a matter for quiet reflection that it is the primacy of the legislature that matters when it comes to fundamental issues of liberty—that is what we are dealing with today—and the constant balance that we have to maintain between liberty and the public interest in being protected from crime and its consequences, however minor or serious. I was glad to be reminded by

Frank Dobson about the sad anniversary that we have reached today.

My hon. Friend Gareth Johnson, in his excellent contribution drawn from years of experience as a criminal practitioner, made some important practical points about the problems that would quickly come about if the House did not take swift action. The examples that he gave—including the identification procedure problem—were well made and do not need repeating by me. However, on a more fundamental level, one aspect that perhaps we have not emphasised today is the interests of the victims and witnesses of crime. In many cases, they give the police statements and then have to wait an inordinate length of time before they know the outcome of the case or are called to court to give evidence. That is one of the main problems encountered day in, day out by courts across the land when dealing with some of the delays caused by readmission to police bail by suspects, sometimes for an inordinate length of time.

The debate comes at an opportune moment because it gives us a chance to look at the whole ambit or spectrum of police bail, not only from the point of view of the suspect or the defence lawyer, but from the point of view of the victim of crime, the complainant or witness, waiting anxiously. In many cases, I have seen the frustration of judges when they hear that decisions about charge have been put off time and again, causing witnesses to lose heart or to lose interest. Sometimes cases fail at that final stage in court, and that is unforgiveable from a variety of perspectives, but most of all from the public interest perspective. That is why the points made today about limits on police bail were well made and deserve serious consideration as we proceed.

The challenge facing the court in Salford was one that the learned judge himself described in paragraphs 18 and 19 of his judgment as being of “limited application”. That was the view of the learned High Court judge, and it was a view that, on examination by Professor Zander, was challenged. A debate then began. Professor Zander is an eminent academic and has enjoyed a peon of praise today from hon. Members on both sides of the House—I am sure that he is enjoying every minute of it. It is thoroughly deserved, but I think that he would agree that to elevate his article to advice status would overplay it. In my view, he opened a welcome debate on the effects of the judgment. It is a debate that Mr Justice McCombe put himself on the other side of by dint of his remarks in paragraph 18 and 19. With respect to Yvette Cooper, it is a little trite to suggest that the consequences of the decision were set in stone some weeks ago. The position only became clear when that debate was initiated, and I think that the Government are to be congratulated on taking effective action.

The Police and Criminal Evidence Act 1984 was seminal legislation. It was not drafted on the hoof, but put together after many months of careful work and input from all sections of those interested in the criminal justice system. It was a game-changer in so many important ways. It was progressive legislation that, at a stroke, made clear and transparent certain procedures that had often seemed in the police station obscure and frankly worrying not only to suspects but to police officers themselves. It was a Conservative Government—the noble Lord Brittan was Home Secretary and his Minister of State was the noble Lord Hurd—who steered that excellent legislation through the House. It has stood the test of time admirably.

As with all legislation scrutinised by the House, however, the 1984 Act might be found to be only human. I am reminded of the remarks of my hon. Friend Nicola Blackwood. She was right to say that the Act was silent on the effect of section 44. We all have to concede that. After Royal Assent, however, practitioners and everybody concerned with the process came to the assumption—the right assumption, I think—that the clock would stop and start as long as the suspect was in police detention, and that the concept of time was not absolute but relative to the time spent in detention. That was well understood by everybody in the system. For 25 years that assumption will have been made by practitioners from the humblest junior solicitor to the highest of High Court judges. They need make no apology for having done so.

Photo of Nicola Blackwood Nicola Blackwood Conservative, Oxford West and Abingdon

To be clear, is it not the case that that assumption arose not out of thin air or a desire for convenience, but out of the fact that that was the intention made clear in parliamentary debates at the time?

Photo of Robert Buckland Robert Buckland Conservative, South Swindon

That is indeed the case, as was helpfully set out in Professor Zander’s article, where he took the trouble to remind himself of the case of Pepper v. Hart, which allows judges to look at Hansard if there is any ambiguity about the intention of the legislature. Unlike the judge in the decision in question, he examined Hansard and found buried in the debates in what were then called Standing Committees—the predecessor title, as it were, of Public Bill Committees—a clear understanding on the part of all parties. It was the former Member for Birmingham, Ladywood, Miss Short, who tabled an amendment designed to ensure that the suspect would be detained for no more than 96 hours, and the then Minister of State, now the noble Lord Hurd, who responded. It was quite clear from that debate that there was an understanding that time would stop and start according to when the suspect was in detention.

With respect to the learned High Court judge, that debate would have assisted him in his deliberations and given him great comfort and support in coming to what we would all have regarded as a purposive decision—that is, a decision that would have given purpose to the intention of the legislators and reinforced a quarter of a century of practice. Sadly, we know that that was not the case, although we should hesitate before rushing to criticism of our judges. They have a tough job to do. They have to make decisions day in, day out. They are presented with a range of different scenarios and cases. I do not think that anyone should rush to criticise the judiciary in that respect because of one difficult case. However, I return to the point that I made at the beginning of my speech. I am glad that it is this place—this House—that is reinforcing and reiterating the law as we have all understood it to be, and which will now, in my submission, be put beyond any doubt whatever.

I know that voices outside this place have urged caution on us in rushing this legislation through, although a lot of their concerns have been addressed in the remarks made by other Members today, which I will not repeat. I have made some suggestions about the potential limitations on police bail—for example, in cases that do not involve a large amount of documentation or serious fraud—but I want to return to straightforward examples of cases involving violence or assault, where far too often, over-cautious lawyers have waited before charge for all the evidence to be gathered, including medical evidence. Frankly, my suggestion to them is to remember how we used to do it. We would charge and then gather the evidence as quickly as possible, to ensure that we did not lose the interest, enthusiasm and participation of prosecution witnesses along the way.

The coalition Government quite rightly restored the decision-making power for certain offences to the police. That was a wise decision, which I believe will allow minds to be focused in the police station when dealing with a range of less serious offences. That will leave more serious offences to be dealt with by the Crown Prosecution Service as part of the advice-before-charge procedure. At that stage, everybody needs to remember what we have said today in this House and elsewhere about the need for expedition and the need for good judgment to be exercised, even though all the evidence might not have been gathered.

I will draw my remarks to a close. I support giving the Bill its Second Reading, and I think that we as a House should be glad that such decisions are falling to us.

Photo of Tobias Ellwood Tobias Ellwood Conservative, Bournemouth East 2:43 pm, 7th July 2011

It is important that we should have this debate. There has been a lot of discussion about why this has been rushed through in the way that it has. We are here to amend the Police and Criminal Evidence Act 1984. The sole purpose is to clarify the distinction between periods of detention and periods of police bail. I want to add my concern about rushed legislation and fast-tracking Bills. It was before my time, but I can certainly remember the Dangerous Dogs Act 1991 going through—as well as legislation to deal with handguns—at a time when Governments wanted to be seen to be doing something, rather than amend the law in a correct and measured way. It is important when we debate legislation to ensure that there is time to digest the impact, make amendments and allow the public and other interested groups to comment on what is going on.

This, however, is a simple and straightforward Bill. In fact, I have never seen such a short Bill. It consists of one page containing two clauses, the second of which simply deals with the geographical reach of the measure and confirms the Bill’s full name. Indeed, the explanatory notes are longer than the Bill. It is none the less an important Bill. It looks at periods of detention in England and Wales, wherein a suspect can be detained initially for up to 24 hours, and for a further 12 hours if approved by a senior officer such as a superintendent. Detention for a further 36 hours can be applied for through a magistrates court, which can then be added on, giving a total cap of 96 hours, at which point the detention clock, as it has been labelled, stops.

At that point, the police have the option either to charge the suspect or to release them, or to place them on bail. We previously assumed that the detention clock paused when that bail was imposed, and restarted after the bail period was complete. However, we now face a new interpretation of the 1984 Act. Following the murder case involving Paul Hookway, Salford magistrates court has thrown a different light on the provisions. That has led to the police detention period and the bail period being capped at a total of 96 hours. That decision has been upheld in the High Court and, as a consequence, we are now having to rush this legislation through today.

The Opposition have called for temporary legislation or a sunset clause to deal with this, but I think that that is unnecessary on two counts. First, we are a legislative body, and if we eventually find that this legislation is inappropriate, we can come back and amend it through primary legislation at any time. Secondly, this is not new law. It will simply take us back to the status quo.

There has clearly been some confusion since the new interpretation of the law was confirmed, and I have a number of questions for the Minister. During the period of confusion before the Bill gains Royal Assent, what will be the impact on the 80,000 or so people who are on bail at the moment? Given that bail conditions are designed for the protection of victims, will there be any consequences for victims who need to be protected during this period following the reinterpretation of the law? I also want to ask—not flippantly; it is a serious point—whether the Home Office has scoured the remaining sections of the Police and Criminal Evidence Act, or indeed the Bail Act 1976, to ensure that no other loopholes are likely be discovered by an eagle-eyed magistrate, resulting in our having to do something similar to this in future?

I very much welcome the Bill, despite the expeditious nature of its passage through the House. It does nothing but change the law on paper, and it will allow the courts to continue to interpret the law in the spirit that the 1984 Act originally intended.

Photo of Nick Herbert Nick Herbert Minister of State (Ministry of Justice and Home Office) , The Minister for Policing and Criminal Justice 2:48 pm, 7th July 2011

Frank Dobson began his speech by reminding the House of the impact of 7/7, on this, the anniversary of that atrocity. My right hon. Friend the Home Secretary also paid her tribute to the victims of that crime this morning. It is a sobering reminder of the continuing importance of public protection, which is what we are debating today. I am grateful that right hon. and hon. Members on both sides of the House have supported the need for this emergency legislation. Certain issues have been raised, and I shall try to deal with them briefly now. It is important to note, however, that there was no dissent over the principle behind the legislation. It is widely accepted that there needs to be a correction to the rather extraordinary judgment of the High Court, which overturned 25 years of practice and legal understanding.

The Government are grateful to all parties for the support expressed, particularly the official Opposition for their support in enabling this emergency legislation to go forward, and I am also grateful for the support of Liberal Democrat Members. There is unanimity on the need to deal with this situation as swiftly as possible.

I begin by clearing up one or two of the more technical issues. My hon. Friend Dr Huppert asked a specific question about when the Bill could be expected to receive Royal Assent. Subject to the Bill being approved by both Houses, we aim to secure Royal Assent before the other place rises on Tuesday 12 July. The legal change will then come into effect immediately. I hope that that answers the point.

For the record, I would like to clear up issues raised by the shadow Home Secretary, Yvette Cooper, and by the Chairman of the Home Affairs Committee, Keith Vaz, about the role of the Law Officers in this matter. Although the right hon. Member for Normanton, Pontefract and Castleford said—I hope I quote her accurately—that it is common for Ministers to say whether they have had advice from Law Officers, page 447 of “Erskine May” states:

“By longstanding convention observed by successive Governments, the fact of, and substance of advice from, the law officers of the Crown is not disclosed outside Government”.

I hope that that helps to clarify the matter.

It is nevertheless important to reassure the House that the Crown Prosecution Service was involved in discussions with ACPO and officials soon after the written judgment was received. I hope that the Chairman of the Select Committee—he is not in his place at the moment—will be reassured when he reads what I had to say. The CPS has certainly been involved in trying to assess the legal implications at the same time as ACPO was trying to assess the practical implications.


The Minister Nick Herbert has accurately quoted Erskine May, but he has omitted some of the relevant section, it concludes:

"...but if a Minister deems it expedient that such opinions should be made known for the information of the House, the Speaker has ruled that the orders of the House are in no way involved in the proceeding."

I think this means the speaker has ruled that if a Minister decides to make his legal advice known to Parliament he is free to do so. It's not written in very clear language though, it's not obvious what "are no way involved in the proceeding" actually means, but I presume it means "do not preclude it".


Submitted by Richard Taylor

Photo of Yvette Cooper Yvette Cooper Shadow Home Secretary, Shadow Minister (Equalities Office) (Women and Equalities)

The issue of the involvement of the Attorney-General is important. It is not simply about whether the Government might be prejudicing their case in a trial, which has been the traditional reason why the content of legal advice is not disclosed; it is about whether the Government did the right thing in response to a very pressing situation. The Minister really needs to confirm whether the Attorney-General intervened in the case in the hearing before the Supreme Court, which the Supreme Court gave him the opportunity to do. Did he do that earlier this week or not? Given that, according to Lord Goldsmith in his evidence to the Constitutional Affairs Committee, the Attorney-General has the power to bring or intervene in other legal proceedings in the public interest, did the Attorney-General consider whether he could intervene in the public interest by a request for a stay of judgment?

Photo of Nick Herbert Nick Herbert Minister of State (Ministry of Justice and Home Office) , The Minister for Policing and Criminal Justice

The right hon. Lady continues to seek to make what appears to me to be political hay out of this situation when the Government are doing everything they can to redress it. I noted yesterday that she made the absurd suggestion that somehow there had been a delay regarding the Supreme Court’s refusal to grant a stay of execution, which might have explained why it refused the stay. On her own analysis, the Supreme Court would have granted a stay of execution—or might have done so—when the implications of this judgment were not clear, yet for some reason it decided not to grant the stay of execution when the implications were made clear. The right hon. Lady takes a whole set of completely inconsistent positions simply because she wants to make political points that are inappropriate when we are seeking to address a serious political matter.

Let me return to the impact on the police and to specific questions—

Photo of Nick Herbert Nick Herbert Minister of State (Ministry of Justice and Home Office) , The Minister for Policing and Criminal Justice

I want to make some progress, if the right hon. Lady will forgive me, as I have only five minutes left.

Specific questions were raised by my hon. Friends the Members for Oxford West and Abingdon (Nicola Blackwood) and for Bournemouth East (Mr Ellwood). The police have assured us that they are doing all they can to ensure that public safety is not compromised, and are taking interim steps to manage the situation in its current form given the current state of the law as expressed by the High Court. However, they are anxious for the law to be restated in the future.

My hon. Friend the Member for Oxford West and Abingdon rightly raised the issue of the protection of victims and witnesses, which is at the centre of our approach. The police service shares our concern about the issue. The chief constable of Essex, Jim Barker-McCardle, has written to all chief police officers repeating his assurance that the service remains completely focused on doing all it can to protect the public, who, of course, include victims and witnesses.

Three substantive issues were raised by Members in all parts of the House. First, it was asked whether we should take the opportunity provided by the Bill to engage in what the shadow Home Secretary called a wider debate about, for instance, whether time limits on the use of police bail would be necessary. The right hon. Member for Holborn and St Pancras raised the issue of protracted bail periods, and my hon. Friend Gareth Johnson said that we should not give the green light to the keeping of suspects on bail, by which I assume he meant inappropriately.

My right hon. Friend the Home Secretary responded on that issue, but let me add that I do not think it appropriate to amend emergency legislation that seeks simply to restore the status quo ante by introducing limits on the use of police bail that have not applied for 25 years without proper consideration. As I said last Thursday, as far as I am aware no representations have been made to the Government about the inadequacy of police bail. Although in recent days some have suggested that it has been a cause of growing concern, I believe that they should set out that concern in a proper manner and on the basis of evidence. We need to have a proper debate about the issue, and were the Government to conclude that changes were needed, there would have to be proper consultation. Such provisions cannot be introduced in the emergency legislation.

It appears to me that opportunities are being taken to make statements that are not necessarily correct. For example, I noticed that the press release that accompanied this morning’s call by members of the legal profession for a delay in the legislation included the following statement by a spokesman from Mary Monson Solicitors, a firm that was involved in the original case:

“The legislation is being rushed through now without proper debate to widen police powers”.

It does not “widen police powers”; it restores to the police powers that they have had for 25 years. That is a serious misrepresentation of what the Bill seeks to do.

Photo of Frank Dobson Frank Dobson Labour, Holborn and St Pancras

Does the Minister not accept that if we are to have a rational, evidence-based debate about the possible increase in protracted bail periods, it will be necessary for the Home Office actually to collect some data? Otherwise we shall all be just talking.

Photo of Nick Herbert Nick Herbert Minister of State (Ministry of Justice and Home Office) , The Minister for Policing and Criminal Justice

I am all in favour of evidence-based policy, but I think that rather than its merely being asserted that there is a problem, such a problem, if it exists, must be properly presented and, of course, backed up with data.

Secondly, Steve McCabe suggested that the Bill should include a sunset clause. The Government disagree. A sunset clause would create further uncertainty, which is exactly what the police do not want. We do not want it either. This is a straightforward piece of legislation that restores the previous position. We also believe that the retrospective action that is being taken is necessary, because if it were not taken, hundreds of thousands of people would potentially have a claim for false imprisonment at any time over the past six years, which is the limitation period. Liberty has said:

“We do not believe that the proposals are retrospective in their nature as they do not seek retrospectively to create a criminal offence, sanction or other burden.”

This is a sensible piece of legislation which was designed to correct an unusual judgment and restore 25 years of legal practice, and I commend it to the House.

Question put and agreed to.

Bill accordingly read a Second time ; to stand committed to a Committee of the whole House (Order, this day).

Photo of Ivan Lewis Ivan Lewis Shadow Secretary of State for Culture, Media and Sport

On a point of order, Mr Deputy Speaker. As Members will be aware, News Corporation’s proposed acquisition of BSkyB is now a matter of great public importance and interest. Rumours are circulating, and briefings are coming from the Department for Culture, Media and Sport that the Secretary of State intends to delay his decision for a minimum of three months. On an issue of such importance, and on the day when we hear that the phones of the families of brave men and women who died fighting for this country in Iraq and Afghanistan were hacked, the least the Secretary of State should do is come to the House as a matter of urgency this afternoon and make a statement.

Photo of Nigel Evans Nigel Evans Deputy Speaker (First Deputy Chairman of Ways and Means)

As you know, Mr Lewis, it is not up to the Chair to demand that Ministers come to the House to make statements. It is very much up to Ministers to make that decision for themselves. Mr Speaker allowed an emergency debate yesterday on the phone hacking issue. I agree that it is a fast-moving and significant issue, but I have not been notified that any Minister intends to come to the House to make a statement today. If that changes however, the House will be told immediately in the usual way.