Clause 1 — Amendment of Police and Criminal Evidence Act 1984

Business of the House (Police (Detention and Bail) Bill) – in the House of Commons at 2:48 pm on 7th July 2011.

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Question proposed, That the clause stand part of the Bill.

Photo of Vernon Coaker Vernon Coaker Shadow Minister (Home Affairs)

Perhaps I should explain to Members who were wondering why I was not standing up to speak that I was trying to give others a chance to make a contribution. Some of what I say may appear to repeat aspects of the debate we have already had, and although I do not mind being subjected to barracking, I hope I will not be subjected to barracking over and above what one might normally expect.

As we have now moved into Committee, let me go into a little more detail. To be fair to the Minister, a few moments ago he could have done with a little more time to address some of the measures he is trying to rush through. Clause 1 is essentially the Bill, so it is almost as if we are repeating Second Reading, but let me say again from the outset that we support the provisions in clause 1. We absolutely agree that we need to fast-track the Bill, and the reasons for that are well set out in the explanatory memorandum.

Earlier, the shadow Home Secretary was trying to elicit from the Government answers to two key questions on fast-tracking and the legal advice and preparation—or lack of it—that the Home Office made in introducing the Bill. First, our understanding is that the Attorney-General was asked by the Supreme Court to intervene in the public interest in the application for a stay of judgment. Did the Attorney-General intervene and support the Government? Was he involved in seeking that stay of judgment in the Supreme Court? As I say, we support the fast-tracking of the Bill, but secondly, will the Minister tell us when the Home Office commissioned officials to draw up draft legislation? It would be of interest to us all to know when that advice was commissioned, so that we could have greater clarity about the Bill and the speed with which the Home Office acted. Our view is that it did not act as quickly as it might or should have done.

We do not, in any way, underestimate the importance of and need for speed in this matter, as 80,000 individuals are currently on police bail. If hon. Members have not had the opportunity to look at the submission from The Trade Union and Professional Association for Family Court and Probation Staff—NAPO—I urge them to examine it. That body has put together some case studies that illustrate some of the difficulties that have arisen as a result of the judgments. I shall just discuss one of its examples, which relates to a 24-year-old man arrested on suspicion of an alcohol-fuelled assault and affray. He was held in cells overnight to sober up, and it is believed that that counts towards the 96 hours. His interview was then delayed for a further two hours to wait for the duty solicitor. He was then bailed on condition that he avoided the victim and the pub, and the police are now collecting witness statements and forensic analysis from the site. Five days have already passed since the incident, and so the bail conditions will fall. NAPO’s submission contains other examples, which are set out for the Committee. Those case studies are extremely important and they show why the Government have introduced this fast-track Bill.

In the previous debate the Minister started to respond to some of the questions posed by hon. Members from both sides of the House. If we examine what Liberty, Justice and many hon. Members have said about the Bill, we find that everyone accepts the need for it to be fast-tracked. However, we need to consider what my hon. Friend Steve McCabe was saying, as it goes to the heart of the matter. As he set out, the Bill contains no sunset clause and, irrespective of whether or not that is the right way to proceed, that does not mean that the Government should not consider some of the issues that people have raised. The fact that everyone accepts the need for it to be fast-tracked does not mean that we should not address the issues relating to time limits for how long somebody can and should be able to remain on police bail, and those concerning some of the conditions that are attached to bail.

I believe that the Minister said earlier that the system had been operating for 25 years without anybody raising such issues and so there was not previously a problem. I do not mean to misquote him, and apologise if I am doing so, but the fact—or not—that these issues have not been raised before does not mean that the Government should not consider examining those that have arisen as a consequence of the judgment. There needs to be a debate. Given that the Bill contains no sunset clause, will the Minister say whether he feels that there is a need for a debate about time limits and the application of conditions in police bail, just to see whether any change to the guidance should be made? They may well be no need as a result of that debate to make such a change, but all this throws up an opportunity for us to discuss with the police and others whether any change is needed.

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

I do not think that I have heard either on Second Reading or during this debate whether someone who decides to leave this country, which at the moment they are perfectly entitled to do, will be subject as of 12 July to the retrospective conditions. Presumably it would cost quite a lot of money and time to try to bring that person back. Is that the kind of problem about which my hon. Friend is concerned? There is a category of people who would be perfectly at liberty to leave the country now because no controls apply to them, but whom we would want to contact and bring back because they are engaged in potentially quite serious offences.

Photo of Vernon Coaker Vernon Coaker Shadow Minister (Home Affairs)

That might well be one example of concern to us all. Whether we use that example or others—Tom Brake cited examples of police bail having gone on and on—we need to consider any constraints or restraints or whether the system works so well that we do not need to worry about it. I would be interested to hear whether the Minister thinks that it is time to discuss that and to see what the evidence tells us, or that we should just carry on.

The hon. Member for Carshalton and Wallington—it might have been Dr Huppert—mentioned the use of police bail. Do we need to consider that? Is it totally appropriate? Are we sure that it works in the way that we would want in all circumstances?

One of the things about a fast-tracked Bill is that the information that comes to us is fast-tracked, too. Some Members were sent just this morning, when it was published, the report on police detention and bail by the House of Lords Select Committee on the Constitution. I do not know whether all Members have managed to see it. Although the Committee does not oppose what the Government are doing, it has raised one or two questions. It wonders whether, because the Bill is being fast-tracked with limited opportunity for amendment, the Government will need to return to consider some of the matters that might otherwise have been debated. It is important to consider the detail now we are in Committee, and the Constitution Committee raises the constitutional issue of the fact that Parliament is legislating before the Supreme Court has made a judgment. The Constitution Committee does not necessarily say that there is anything wrong with that, but states:

“We are concerned that asking Parliament to legislate in these highly unusual circumstances raises difficult issues of constitutional principle as regards both the separation of powers and the rule of law. We have noted the constitutionally important distinction between legislative and adjudicative functions before. We are concerned that, in the understandable”— note the word “understandable”—

“rush to rectify a problem which the police have identified as being serious and urgent, insufficient time has been allowed for Parliament fully to consider the constitutional implications of what it is being asked to do.”

The Committee says that it will return to the matter later in the year to consider what

“the effect of Parliament legislating in advance of the Supreme Court hearing may be on the Court when it hears the case on 25 July.”

Can the Minister tell the Committee the Government’s view? I appreciate that the Government might have seen the report only relatively recently and I am unsure whether the Minister will have had time fully to consider it. If the Minister has not had time to do that, he might need to ensure that there is a full discussion and debate in the other place.

The Minister has dealt with the issue of retrospection. I think that all hon. Members are concerned about retrospective legislation, and that concern is understandable in this regard. Will the Minister confirm that the Bill will apply only to cases after 19 May—I think he said that it restores the law to what it was before the judgment—or will it impact on anything that happened before that judgment? We should be sure that we understand the extent to which the Bill will act retrospectively, so it would help the Committee if the Minister confirmed that point.

Photo of Nigel Mills Nigel Mills Conservative, Amber Valley 3:15 pm, 7th July 2011

One of my concerns is that the decision might mean that the rule was ineffective going back 25 years and that a collection of people who believe that they were wrongly treated during that period might bring claims for compensation. There is some detail about that in the explanatory note and my reading of the clause is that the retrospective effect rules out any such potential issue. Does the hon. Gentleman agree with that and welcome it?

Photo of Vernon Coaker Vernon Coaker Shadow Minister (Home Affairs)

I think so, but we are in Committee and I would need the detail in order to understand what legal advice the Government have had about retrospective effect before I could properly answer the hon. Gentleman. I thought that either the Minister or the Home Secretary had said that all this will apply only as far back as 19 May, when the initial judgment was made. I seek to clarify whether it is possible to apply such provision to cases from the past 25 years. There will be a legal opinion on that and I suppose it will be either one thing or the other.

I have only a few brief points to make, because of course we all agree with the Bill. Clearly, we all want the Bill to become law as soon as possible and certainly before Parliament goes into recess. In answer to the very important question about Royal Assent, the Minister said that the Government aim for the Bill to become law on completion of its passage through the House of Lords, which is on Tuesday. Will he confirm that what he actually means is that Royal Assent will be given at the end of that day? Are the Government aiming for that, or will it definitely be given then? We all want absolute and firm assurance on that, because every Member of the House supports the Bill and will want to know, 100%, that Royal Assent will definitely be in place before the House rises for the summer recess. Of course, that is assuming that the Bill is passed by both Houses.

With those few brief comments and detailed points I will sit down and wait for the Minister’s response or to hear what other Members have to say.

Photo of Nigel Mills Nigel Mills Conservative, Amber Valley

It is a pleasure to serve under your chairmanship, Mr Evans. I should like simply to expand a little further on the point I made in my intervention on Vernon Coaker about the potential for retrospective effect. We have seen, in relation to other issues earlier this year, how concerned the public are about any possibility of compensation being paid to people who are guilty of offences and are, perhaps, now being denied their right to vote. I expect the public would be incredibly concerned if people who have been through what was thought to be due legal process now had some chance of compensation, no matter how little, because that process, despite having been believed by everyone to be right, might have been ruled technically out of order by one judge in a verdict with which no one seems to agree. I accept the fact that, as is made clear in the explanatory notes, making the Bill’s provisions retrospective, right back to 1984, is an attempt to address that.

My concern is that to some extent we are in this mess because Parliament was not clear enough about its intentions when it passed the 1984 Act. It would be helpful if Parliament was entirely clear about what we mean when we give retrospective effect and if the Minister made explicit the intention, as set out in the explanatory notes, that these powers will be restored to what we all understood them to be for 25 years so that the courts will not allow any compensation claims. The explanatory notes are clear that that is what the Bill is attempting to do.

To try to clarify the point that the hon. Member for Gedling made, if he looks at page 9 of the explanatory notes, he will see that paragraph 36(c) states:

“Unless the Bill is given retrospective effect, it is possible that a very large number of people could bring claims for damages for detention occurring before the judgment, even though that detention was in accordance with what was honestly thought to be a long-understood legal position.”

There could be a huge number of claims and a large amount of money at stake, and it would be very generous to think that some claims-handling firms would not go around trying to find people to make those claims and test the process.

I want to ask the Minister two questions. First, will he make it absolutely clear that the Government’s view, and Parliament’s intention, is that no compensation would be due? Secondly, will he address the point about whether it would be wise to add a separate subsection to the Bill that makes that absolutely explicit so that if and when such claims are brought there is no doubt that our intention is that no compensation should be due?

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

Vernon Coaker and my hon. Friend Nigel Mills have raised a number of concerns that I will try to answer, but first I wish to return to the Opposition’s general allegation about delay. It is simply not the view of senior police officers that there has been inappropriate delay in the matter. The Opposition are claiming something that does not have the support of those most affected by the judgment’s implications.

I attended the ACPO conference in Harrogate this week, which the hon. Gentleman joined for the last day, and talked with the chief constable of Greater Manchester police, the force originally affected. He said that at the time of the oral judgment his force could not believe that a single judgment in Salford could affect all the cases across the country and overturn something that had been operating since 1986. The police force affected did not appreciate at that stage the potential wider implications of the court’s decision. The High Court judge, Mr Justice McCombe, said that the consequences would not be

“as severe as might be feared”, a view with which the shadow Home Secretary disagrees. As I noted earlier, the ACPO lead on the issue, the chief constable of Essex police, Jim Barker-McCardle, has said:

“It was only when ACPO received the written judgment on 17 June…that the seriousness of the issue became apparent.”

The chief constable of the force concerned did not appreciate the wider implications, the High Court judge said that the consequences were not severe and the ACPO lead said that their seriousness was not appreciated until 17 June, and yet the Opposition appear to know differently and apparently, with astonishing clairvoyance, saw the need for action in May. Neither the police, nor the High Court judge saw the need for action, but the Opposition apparently did. This simply is not a credible position for the Opposition to take. I repeat that the Government acted as fast as we could. In particular, once we received formal advice from ACPO that it believed that emergency legislation was necessary, we acted very fast indeed.

I say to the hon. Member for Gedling—this is an important point—that the Opposition could take a different approach. He may remember that, in 2008, when the Supreme Court ruled on witness anonymity and against the common law understanding of the issue, the then Government decided to introduce emergency legislation and we supported them. I know that we did so because I led for the then Opposition. I did not claim that the Government of the day had in any way delayed, yet that emergency legislation was introduced to almost exactly the same timetable as this legislation after the written judgment had been received. We also hope that this legislation will be on the statute books sooner than that one was, so there is no need to strike such a partisan stance on the matter, given the cross-party agreement that it is necessary to do something. I am sorry that, when we need to consider the substance of the issue, the Opposition have continued to make political points, but I hope that deals with the issue of delay.

The hon. Gentleman also asked whether the Government felt there should be a debate about time limits. My point on Second Reading was that, if there are believed to be problems with the operation of police bail, and if the suggestion is that bail is being extended for too long a period or over-used, those who believe that to be the case should assemble their evidence and present a serious case, at which point I am sure that hon. Members on both sides will debate and consider it carefully.

Such points were made, it seems to the Government, at a very late stage and only when the High Court judgment came in, so we do not think it appropriate to amend the emergency legislation. That does not preclude sensible debate about the matter in future, but I gently point out to the hon. Gentleman that the Opposition did not raise them before that point, either. The House did not appear to be aware of a concern—if, indeed, there is widespread concern, and I do not presume that there is—about the operation of police bail.

The Government certainly do not have a closed mind to the issue, and of course we should pay the closest attention to a proper case, should one be made to us, but we will not arbitrarily and in a rushed manner set limits on the operation of police bail without proper evidence, proper understanding of the problem, proper consultation and proper consideration of the impact of such limits. That is a responsible position to take.

The hon. Gentleman asked also about the Government’s response to the Lords Constitution Committee report, which he correctly said we received just this morning, and in particular our response to its conclusion that there is an issue of constitutional principle regarding the separation of powers and the rule of law, because Parliament is introducing emergency legislation when an appeal is pending to the Supreme Court.

The Government do not see that the decision to legislate in advance of an outcome to that appeal raises any constitutional issues. The sovereignty of Parliament means that it is entirely open to Parliament to legislate at any time in response to a court judgment, and that is what we are doing.

The hon. Gentleman also raised the important issue of retrospection, about which my hon. Friend Nigel Mills was also concerned in relation to compensation claims. The hon. Member for Gedling wanted in particular to know whether the retrospective nature of the Bill meant it went back only to the original judgment on 19 May. That is not the case, because the High Court judgment itself applied to all cases going back to 1986. The Court, owing to its different understanding of the Bail Act, stated that any cases prior to 1986 may have involved unlawful detention, so this legislation must go all the way back as well. That is why if hon. Members read clause 1(3) they will see the following wording:

“The amendments made by subsections (1) and (2) are deemed always to have had effect.”

That is particularly important because we need to create legal certainty. As I said on Second Reading, it is important that we do not permit what might otherwise be the bringing of a rash of legal cases.

Photo of Vernon Coaker Vernon Coaker Shadow Minister (Home Affairs) 3:30 pm, 7th July 2011

The Minister is providing helpful clarity in responding to what Nigel Mills and I said. Without having the legal support that the Minister does, it was not immediately obvious to me that that was the case, and I was worried about it. His reply will give a sense of relief to all sane people throughout the country.

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

I am grateful for the hon. Gentleman’s support, although I did it almost all on my own without the legal support that he claims. Nevertheless, that is the effect of the Bill, and that is important because it means that there is no doubt about the matter. Any claim based on what the High Court has said since the May judgment would not succeed because Parliament is stating clearly that the original understanding of the legislation should apply. I am happy to put on record that the Government’s, and I believe Parliament’s, intention is not to allow compensation claims that may have arisen as a consequence of this judgment. It is expressly our desire to prevent such claims, which would be improper and unwarranted in the circumstances.

The hon. Member for Gedling asked me a specific question about the Home Office’s preparedness for legislation—that is, did we prepare on a contingency basis before ACPO came to us with its formal request on the necessity for emergency legislation? ACPO presented its case to me on the morning of Thursday 30 June, and I made my oral statement less than two hours later. The Home Office had already studied the judgment, considered possible legislative vehicles, and prepared instructions to parliamentary counsel that were sent on the same day in time for a first draft of the legislation to be received later that day. We acted explicitly and swiftly. Of course, the drafting was not complicated because this is a straightforward Bill that simply restores the status quo ante.

The hon. Gentleman asked whether it was merely our aim that the Bill should receive Royal Assent next Tuesday or whether it would receive Royal Assent next Tuesday. Of course, that is a matter for the other place, but it is very much our hope and expectation that we will have Royal Assent on 19 May once the other place has considered the Bill. [ Interruption. ] I am sorry—I should have said 19 July. There is always a danger in reading things without my glasses. As I have said, the Bill will take effect once Royal Assent is received. I hope that that answers the hon. Gentleman’s specific questions.

Photo of Vernon Coaker Vernon Coaker Shadow Minister (Home Affairs)

This is a hugely important issue not only for the police but for the confidence of the public in ensuring that we are doing as much as we can, as swiftly as we can, to protect them from the people they need protecting from. Notwithstanding our difference about the delay, it was helpful for the Minister to clarify some of those specific points, and I thank him for that.

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

For the record, may I correct what I said about when the Bill will receive Royal Assent? I should have said 12 July, not 19 July. That was written in larger writing, but I could not see it.

Photo of Vernon Coaker Vernon Coaker Shadow Minister (Home Affairs)

On a point of order, Madam Deputy Speaker. Is the Minister absolutely certain that he has got it right this time?

Photo of Dawn Primarolo Dawn Primarolo Deputy Speaker (Second Deputy Chairman of Ways and Means)

I believe that the Minister is absolutely certain. I am going to put on my glasses to ensure that I get things right.

Question put and agreed to.

Clause 1 accordingly ordered to stand part of the Bill.

Clause 2 ordered to stand part of the Bill.

The Deputy Speaker resumed the Chair.

Bill reported, without amendment.

Third reading

Photo of Nick Herbert Nick Herbert Minister of State (Ministry of Justice and Home Office) , The Minister for Policing and Criminal Justice 3:35 pm, 7th July 2011

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

I do not need to detain the House, because there is broad agreement about the importance of this legislation and the substance of it. I hope that I have answered the questions that have been raised during the Bill’s passage. There will, of course, be a further opportunity to consider any issues when the other place debates the Bill on Tuesday. I hope that the fact that questions have been raised by hon. Members on both sides of the House indicates that there has been proper scrutiny of the Bill. It is a short Bill, but important questions were nevertheless raised about it. The Government are grateful for the support of the official Opposition and hon. Members on both sides of the House for this important legislation, which will simply restore 25 years of previously understood legal and police practice, and enable the police to do their job. I commend the Bill to the House.

Photo of Vernon Coaker Vernon Coaker Shadow Minister (Home Affairs) 3:37 pm, 7th July 2011

The official Opposition are pleased that the Bill has progressed swiftly through the House. It is a very small Bill, but it is none the less very important. Important points have been raised, and the Minister sought to address them. No doubt that will inform the debate in the other place. Whatever the rights and wrongs of the judicial system, the vast majority of people in this country will have had an “I can’t believe it!” moment in relation to this matter. When the House has passed the legislation, it will help to give the police the clarity that they need with respect to the law, so that they can deal with some difficult cases and individuals in the proper and professional way in which they carry out their business. I hope that this unsatisfactory situation will be resolved as swiftly as possible.

Question put and agreed to.

Bill accordingly read the Third time and passed.