Criminal Justice and Police Bill

– in the House of Lords at 3:05 pm on 9th May 2001.

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Votes in this debate

Report received.

Clause 1 [Offences leading to penalties on the spot]:

Photo of Baroness Buscombe Baroness Buscombe Shadow Minister (Home, Constitutional and Legal Affairs)

My Lords, it gives me great pleasure formally to move this amendment.

On Question, amendment agreed to.

Photo of Baroness Buscombe Baroness Buscombe Shadow Minister (Home, Constitutional and Legal Affairs)

My Lords, again, it gives me great pleasure formally to move this amendment.

On Question, amendment agreed to.

Clause 17 [Closure of certain licensed premises due to disorder or disturbance]:

Photo of Lord Cope of Berkeley Lord Cope of Berkeley Conservative

moved Amendment No. 3:

Page 9, line 33, after "of" insert "and related to"

Photo of Lord Cope of Berkeley Lord Cope of Berkeley Conservative

My Lords, it gives me great pleasure to move this amendment and to thank the Government and the Minister for taking on board the point that we made in Committee. If it is not already obvious to your Lordships, Amendments Nos. 3 to 7 all address the same point. As I am on my feet, I should also mention that we do not intend to move Amendments Nos. 8 or 9. They are superficially similar but actually relate to a different clause which we do not wish to pursue today. I beg to move.

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Parliamentary Under-Secretary, Home Office

My Lords, these amendments are before the House by common consent. We are happy to oblige. We listened carefully to what noble Lords opposite had to say about these matters. I took away the amendments and gave them careful consideration. All the amendments in the group work together. Four are consequential on the first. I hope that this will now ensure that matters are much happier when the police are deciding whether to extend a closure order. I am sure that it will make for the better order of that business. I am happy to support the amendments.

On Question, amendment agreed to.

Photo of Lord Cope of Berkeley Lord Cope of Berkeley Conservative

moved Amendments Nos. 4 to 7:

Page 9, line 36, after "of" insert "and related to"

Page 11, line 2, after "of" insert "and related to"

Page 11, line 47, after "of" insert "and related to"

Page 12, line 24, after "of" insert "and related to"

On Question, amendments agreed to.

Clause 19 [Closure notices]:

[Amendments Nos. 8 and 9 not moved.]

Clause 42 [Police directions stopping the harassment etc of a person in his home]:

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Parliamentary Under-Secretary, Home Office

moved Amendment No. 10:

Page 34, line 6, leave out "victim" and insert "resident"

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Parliamentary Under-Secretary, Home Office

My Lords, in moving Amendment No. 10, perhaps I may speak also to Amendments Nos. 11 to 16. These amendments change the terminology of the clause, renaming the person who is suffering harassment as the "resident" when previously he had been referred to as the "victim". They do not change the overall effect of the clause. That has to be plainly understood. We believe that the clause is very important. However, matters were raised in earlier debates, more particularly by noble Lords on the Liberal Democrat Benches who were concerned about the issue. They thought that the term "victim" was pejorative. I understand the point that they made and we have now reached an understanding and agreement about the terminology that satisfies all sides of the House. The amendments which follow on from Amendment No. 10 are all consequential and are there to ensure that we have a coherent description which holds together and makes the legislation work effectively. I beg to move.

Photo of Lord McNally Lord McNally Liberal Democrat

My Lords, noble Lords on the Liberal Democrat Benches welcome the Minister's move on this point. It may not change the powers in the Bill but we believe that it changes the psychology, and to a certain extent the philosophy, and as such it is welcome.

On Question, amendment agreed to.

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Parliamentary Under-Secretary, Home Office

moved Amendments Nos. 11 to 16:

Page 34, line 9, leave out "victim" and insert "resident"

Page 34, line 10, leave out "victim" and insert "resident"

Page 34, line 20, leave out "victim" and insert "resident"

Page 34, line 22, leave out "victim" and insert "resident"

Page 34, line 26, leave out "victim" and insert "resident"

Page 34, line 27, leave out "victim" and insert "resident"

On Question, amendments agreed to.

Clause 50 [Offence of activity of using crack cocaine]:

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Parliamentary Under-Secretary, Home Office

My Lords, the amendment would have the effect of removing Clause 50 from the Bill. The House will recall that there was a brief period of slight chaos at the end of one of our days in Committee. An inadvertent error was made which meant that two clauses which had a similar effect were agreed. The second of the agreed clauses was defective. The amendment simply seeks to remove that defective clause. I am sure that the clause will be removed with the support of the House. We have reached clear agreement on the subject of the amendment. I beg to move.

Photo of Lord Cope of Berkeley Lord Cope of Berkeley Conservative

My Lords, as the Minister said, there was some confusion. The Government Benches kindly voted for our proposed Clause 50, which was intended to clamp down on crack cocaine houses. However, Clause 38 had already been passed with our agreement. As the Government consider Clause 38 to be better drafted, I do not think that it is necessary for Clause 50 to remain in the Bill. That is why I support this amendment.

On Question, amendment agreed to.

Part 2 [Information disclosure for the purposes of criminal proceedings etc]:

Photo of Lord Cope of Berkeley Lord Cope of Berkeley Conservative

My Lords, Amendment No. 18 seeks to leave out Part 2 of the Bill. There was discussion in Committee and subsequently the Government have agreed to our suggestion that the issues involved in Part 2 require further consideration. The issues have proved quite controversial in various professions, including the legal profession, my own accountancy profession, and others. They were not discussed in the other place and were only briefly debated here. It is right that Part 2 should be given proper consideration over an extended period. The amendments grouped with Amendment No. 18 are consequential upon it. I beg to move.

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Parliamentary Under-Secretary, Home Office

My Lords, I am happy to be associated with these amendments. We debated this part of the Bill yesterday. The noble Lord, Lord Cope, in his usual cogent way, expressed the Opposition's view that this part of the Bill required better and more detailed evaluation. It was, he said, complicated and detailed.

The noble Lord is not quite right in saying that Part 2 was not discussed during the consideration of the Bill in another place. I should say for the record that the clauses in Part 2 were considered in another place during the Committee stage. However, given the short amount of time available to complete the parliamentary stages of the Bill, we have jointly tabled the amendment seeking to remove Part 2 of the Bill. This will provide a period of time in which, no doubt, we can improve the quality of the legislation, if that is what is required, and perhaps undertake further consultations. If the Labour Government are re-elected, we shall consider carefully the best way to proceed with what we believe are very useful reforms.

As the noble Lord, Lord Cope, said, Amendments Nos. 26 to 29 are consequential to Amendment No. 18, which seeks to remove Part 2 from the Bill.

Photo of Lord Cope of Berkeley Lord Cope of Berkeley Conservative

My Lords, before the Minister sits down, may I point out that, although these clauses were formally taken by the Commons Committee, they were not discussed because the guillotine had already fallen?

Photo of Lord McNally Lord McNally Liberal Democrat

My Lords, we on these Benches support this deletion. We do so because we are mightily convinced by the persuasive arguments deployed by both Front Benches about the need for further consideration. We agree that these issues are controversial, that there has been inadequate discussion, and that there is a shortness of parliamentary time. As we go further through the Report stage, we hope that both Front Benches will be persuaded by similar arguments which are not restricted to the legal and accountancy professions.

On Question, amendment agreed to.

Clause 70 [Meaning of "legal privilege"]:

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Parliamentary Under-Secretary, Home Office

moved Amendment No. 19:

Page 62, line 1, leave out subsection (9)

Photo of Lord Cope of Berkeley Lord Cope of Berkeley Conservative

My Lords, this group of amendments refers to the Homes Bill. I understand that the Government are not proceeding with that Bill. It is therefore correct to delete from this Bill references to the Homes Bill before we proceed further today. The other amendments in the group are consequential upon Amendment No. 19.

On Question, amendment agreed to.

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Parliamentary Under-Secretary, Home Office

moved Amendments Nos. 20 and 21:

Page 62, line 14, at insert "or"

Page 62, line 16, leave out from "(c.36)" to end of line 17

On Question, amendments agreed to.

Clause 71 [General interpretation of Part 3]:

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Parliamentary Under-Secretary, Home Office

moved Amendment No. 22:

Page 64, leave out lines 23 and 24

On Question, amendment agreed to.

Clause 87 [Restriction on use and destruction of fingerprints and samples]:

Photo of Lord McNally Lord McNally Liberal Democrat

My Lords, as I said, I was mightily impressed by the arguments deployed for leaving out Part 2 of the Bill. We are now talking about the two clauses in the Bill which refer to DNA. I ask your Lordships to read the debate that took place in the House last night on this issue. It was a model of this House at its best, with powerful speeches made from the Conservative, Labour and Liberal Democrat Benches by noble Lords with considerable experience in this area. I do not intend to repeat in detail those arguments.

Our reasons for seeking the deletion of Clauses 87 and 88 are precisely the ones that have just been deployed for the removal of Part 2. When the noble and learned Lord the Attorney-General comes to respond, noble Lords should remember that if the Prime Minister could have achieved his heart's desire and held the general election on 3rd May, this legislation would not have stood a prayer of going through the House. Therefore, the idea that this is some kind of urgent "must have" legislation does not stand up to scrutiny.

Certainly, this very important step forward has been carried through with inadequate parliamentary scrutiny. As has been referred to on a number of occasions from all sides of the House, we are dealing with new technologies and new powers. We on these Benches are aware that it is very easy to portray any opposition to a request from authorities for new powers as somehow siding with criminals against the forces of law and order.

However, there is another side to the argument. Over the past 10 years we have experienced what I would describe as a law and order arms race between the Conservative and Labour Front Benches. It is probably the final epitaph of Jack Straw's stewardship that during his period as shadow Home Secretary and as Home Secretary he has never been successfully outflanked to the right by his Conservative opposite number. However, it means that when both Front Benches play the populist card an extra responsibility rests on Parliament, and particularly on this House, not to be intimidated by such threats as, "How are you going to explain this to the parents of a raped child?" and other emotive cards that are played.

I had never heard anyone deliver threats in such gentle and mellifluous tones as the Attorney-General did in the debate last night. On my way home at about midnight--the time when one feels most sinister--I suddenly thought that it was exactly the technique of the late lamented Donald Pleasence, who played the character of Bloefeld, one of the most sinister villains in the James Bond series. I appreciate the technique; however, I ask colleagues, particularly on the Conservative and Labour Benches, to think hard about where our duty lies at this particular time.

We believe that the civil liberties aspects of this issue have not been fully debated. In regard to those that were debated fully in this House last night, many of the concerns about this measure were expressed with great power on all sides of the House. Therefore, we are right to ask the Government even at this late stage not to abandon these powers if they genuinely believe that they are necessary, but to give adequate time for a proper public debate about the issues involved and for proper study by experts and others of the implications. Then, in a proper way at a proper time, Parliament can make the decision as to whether the authorities should have these powers.

We have fallen into a habit over the past few years of accepting Home Office legislation "on the bounce". We saw an example in the terrorism Bill that followed the Omagh bombing. The Home Office slipped in a whole section that had been waiting on a shelf and was not in any sense emergency legislation. There is always a demand for urgency on the part of the authorities and the implied threat: "If you are against us, you must be on the side of the bad guys". That is not the whole picture. Parliament has wider responsibilities--not least to defend the broader civil liberties of the citizen.

We do not oppose the detail of these clauses. We merely ask for time for them to be properly considered. The best approach would be, as with Part 2, to drop these two clauses from the Bill. Then, if the Government have confidence in what they want to do, a successor government can bring them back in the new Parliament. I beg to move.

Photo of Lord Renton Lord Renton Conservative 3:30 pm, 9th May 2001

My Lords, this is the first occasion in my 55 years in Parliament on which I have attended a Report stage of a Bill that affects law and order and the liberty of the subject, the Committee stage having ended only at a late hour the night before. It is also the first occasion on which I have heard a Liberal Democrat Peer, whom I greatly respect, make what might be described as a Third Reading speech in the middle of the Report stage--although his remarks were relevant not only to these amendments but to the Bill as a whole.

I disagree with the noble Lord, Lord McNally, in his implied criticism of my noble friends on the Front Bench. They have shown great discretion, even when they have had entirely reasonable doubts about some of the clauses in this new and far-reaching Bill. I hope that on further reflection the noble Lord, Lord McNally, will realise the valuable part that my noble friends have played.

That said, I welcome the Government's surrender of some of the controversial clauses, and in particular of Part 2. In the circumstances in which we now find ourselves, it was a necessary and wise step for them to take. However, a good deal of the remaining provision is controversial and is the subject of further amendments. I shall make no further comment at this time. I hope that I may be forgiven for making what is virtually another Third Reading speech at this early stage.

Photo of Lord Phillips of Sudbury Lord Phillips of Sudbury Liberal Democrat

My Lords, I wish to add little to what my noble friend Lord McNally said so cogently--because it was all said, not least by me, last night. There is one point to which my noble friend did not refer and which is highly germane; namely the chaotic state of the national DNA database. We cannot look at the amendment before us without realising that the police, in an audit of the national DNA database last July, found that over 50,000 samples had been stored illegally. To those of us on these Benches, it seems bizarre to say the least that the Government should be considering the proposals in Clauses 85 and 86 against that backdrop. As I say, I propose to confine my remarks to that point in support of my noble friend Lord McNally.

Photo of Lord Cope of Berkeley Lord Cope of Berkeley Conservative

My Lords, one never comes to this House without learning something. This afternoon we have learnt that the noble Lord, Lord McNally, feels sinister at midnight. I take it that his classical education is coming out--"sinister" comes from the Latin for "left".

These clauses are not a reaction to an event such as a bombing--as the noble Lord rightly pointed out, we saw such a reaction following the Omagh bombing and on other occasions. On the contrary, they are a more long-term reaction to changes in scientific knowledge and hence of the techniques that have become available.

We had an interesting debate on the matter last night. I shall not repeat the points I made then, save to say that I do not believe that we are collectively winning the war against crime. DNA evidence--and the handling of fingerprint evidence--is an extremely valuable investigatory tool; it also potentially provides high-quality evidence in court cases. In these circumstances I believe it right that these clauses should remain in the Bill.

Photo of Lord Williams of Mostyn Lord Williams of Mostyn Attorney General, Law Officers' Department, Deputy Leader of the House of Lords

My Lords, I am grateful to the noble Lord, Lord Cope of Berkeley, for his remarks. This provision is not a short-term remedy; nor has it been proposed without consultation. As your Lordships will remember, as long ago as July 1999, the Home Office published a consultation document, Proposals for Revising Legislative Measures on Fingerprints, Footprints and DNA Samples. That document formed the basis for some of the measures contained in the Bill. That was a fair while ago, and it is not right to assume or to mis-remember what happened in another place. The provisions relating to fingerprints and DNA samples were debated at length at all stages, including in Committee, in the Commons. However, I listened carefully to what was said in the debate last night. Some points were plainly of deep concern to those who made them. In saying that, I do not take away from the concerns; nor do I accept that the concerns are necessarily valid. In respect of the database, to which the noble Lord, Lord Phillips of Sudbury, referred, I said yesterday in answer to him and my noble friend Lady Kennedy of The Shaws that I was able to give a commitment to a long-term review of improving the security and efficiency of the database.

However, I know that there are concerns among your Lordships that are not partisan; and, indeed, not entirely complimentary, although I gratefully received the bouquet from the noble Lord, Lord McNally. I always wanted to be an actor, and I believe that Donald Pleasence was rather a good one. I should like to spend a few moments on the issue because we need to remember what these clauses are talking about. They are talking about the retention of all fingerprints and samples taken on suspicion of involvement in a criminal offence. The purposes for which they can then be used--it is worth looking at the text of the Bill--are specifically restricted: the prevention and detection of crime, the investigation of an offence and the conduct of a prosecution. They cannot lawfully be used for any more devious purposes. I almost said "sinister"; but perhaps I should use "devious" as the adjective. They can be used only to prove or disprove involvement in crime.

We are not seeking to extend the powers to take fingerprints or other samples; we are seeking only to retain those that have been lawfully taken. These are extremely important aspects. I believe that the noble Lord, Lord Cope of Berkeley, is right to point out that one is capable of generating by these modern procedures evidence of extremely high "objective" quality. I do not apologise for using that word again. It is much more potentially capable of being reliable, objective evidence than, for example, the eye-witness identification made by the honest, apparently trustworthy and reliable witness who, although honest and apparently trustworthy, experience has commonly shown us can be plainly mistaken.

The proposed changes about retention were made necessary as a result of the decisions of the Court of Appeal Criminal Division in the cases of the Crown against Weir and the Crown against B, under the Attorney-General's reference No. 3/199. Those cases put into stark focus--I do not apologise for those words because they are a moderate description of what occurred--whether or not our law was coherent, comprehensible or justifiable on the retention of samples in those cases. I should remind noble Lords who did not have the benefit of being present in Committee last night, or the opportunity fully to read the Hansard report of the proceedings, that in those cases there was compelling, objective evidence of, in the words of the noble Lord, Lord Cope, "high quality" that linked one defendant to a rape and a second defendant to a murder. If that is to be called "playing the populist card", I believe that to be fundamentally mistaken as a description.

It was originally held that that evidence of high objective scientific quality, which was capable of being extremely reliable, had to be excluded from the jury. Why? It was because both defendants, having given their original DNA samples, had either been acquitted or not proceeded against. The Court of Appeal ruled that material to be not admissible. If it is a sensible principle of criminal jurisprudence--I contend that it is--that cogent, probative evidence of high quality ought to be admitted, then, with great respect, those decisions caused some surprise.

The subsequent decision of the House of Lords overturned the ruling of the Court of Appeal and, therefore, the contention made by and on behalf of the Attorney-General succeeded. The House of Lords ruled that where a DNA sample fell to be destroyed because of Section 64 of the Police and Criminal Evidence Act 1984 but had not been, it did not make evidence obtained as a failure to comply with that prohibition inadmissible. The Joint Committee on Human Rights, which I know is only just starting what I hope will be extremely important and influential work, commented:

"This has the curious result"-- understatement is always a pleasure to study--

"that the police are under a legal duty to destroy material, but are able to use it as evidence if they breach their duty by keeping it".

The Bill's proposals in these two linked clauses seek to put right that anomaly.

The ruling of the Judicial Committee of the House of Lords allows the court a discretion to use the information, but that only affects cases where by chance, inadvertence or inefficiency the samples have been kept. I am most grateful for the support received from the Opposition Front Bench in this respect. The Government's view is that the evidence should not be discarded and that the police should be able to make use of that valuable and objective evidence. In my view, once it is acceptable that prints and samples should be able to be retained and properly used in the defence of individual liberty, which has been attacked by criminals if they are proved to be such, it is a proportionate use of the power of society to enforce the protection of the individuals who compose it.

A further worry expressed last night related to the retention of samples that were given voluntarily. Being an optimistic creature, I shall say this now for the last time: the samples can be retained only if there is written consent to the retention given by the person providing the sample. We believe that these are legitimate weapons in the structured armoury of a civil state response. I recognise that the concerns expressed were not raised on the basis of party point scoring; indeed, I do not believe that anyone on either side thought that any of us was indulging in that last night.

Obviously, I have given a good deal of thought to the expression of view that was encapsulated quite briefly and economically by the noble Lords, Lord McNally and Lord Phillips. I hope that they will accept the following suggestion as being constructive. Bearing in mind the concerns expressed, I believe that I ought to be able to give a commitment--I have authority to do so--that this whole matter will be subject to a review when five years' experience has been had. I am able to give that commitment. I am not pretending that everything about the present state of the law is perfect. However, what I do assert without any doubt at all in my mind is that we must get the law right in this particular context.

I made my commitment to the long-term review of the database in what I accept was a less specific form to the noble Baroness. I believe that both she and the noble Lord, Lord Phillips, accepted it as being a constructive approach. This commitment is deliberately more focused because I listened carefully to what noble Lords said. I hope that they will recognise that I am not playing any sort of card. I am trying to meet legitimate concerns that were conscientiously expressed and to balance and marry those with the views advanced by myself on behalf of the Government and by the noble Lord, Cope of Berkeley, on behalf of the Opposition Front Bench.

Photo of Lord Phillips of Sudbury Lord Phillips of Sudbury Liberal Democrat

Before the Minister concludes and my noble friend replies, I have two questions. First, can a government Minister make a commitment of this sort that is binding on a successor government? Secondly, can the noble and learned Lord the Attorney-General give me any indication as to whether such a review would have an element of independence in it?

Photo of Lord Williams of Mostyn Lord Williams of Mostyn Attorney General, Law Officers' Department, Deputy Leader of the House of Lords

My Lords, obviously I cannot bind a successor government, if the noble Lord's ignoble hypothesis were ever to come about. However, I hope that I have expressed our commitment to the measure as firmly as possible. Of course, if one of two alternative parties were in power--I look for a smile from the noble Lords, Lord McNally and Lord Phillips--they would decide the matter. I have made my stance perfectly plain. I believe that the consultation ought to be as widely based as possible. I do not think that your Lordships can expect me to be more specific than that. I hope that I have been as helpful as I possibly can.

Photo of Lord Cope of Berkeley Lord Cope of Berkeley Conservative

My Lords, I say on behalf of my party that a review on the time-scale that has been mentioned is essential.

Photo of Lord McNally Lord McNally Liberal Democrat

My Lords, I welcome the extremely constructive suggestion of the noble and learned Lord the Attorney-General. Yesterday when we discussed the need to strike a balance between civil liberties and the needs of victims of crime the noble and learned Lord said,

"I recognise the civil liberties implications here, in the balance I believe that their [the victims'] needs come rather higher".--[Official Report, 8/5/01; col. 2082.]

The debate has been conducted honourably by noble Lords on all sides of the House. However, a division of opinion remains. The concern over civil liberties remains. We welcome the review that has been suggested. We shall certainly return to the matter in the new Parliament when legislation is introduced following the publication of the Auld committee's report. Therefore, this is not the end of the matter. Nevertheless as we are in the peculiar position of having to undertake a truncated review of this legislation, we wish to test the opinion of the House.

On Question, Whether the said amendment (No. 23) shall be agreed to?

Their Lordships divided: Contents, 40; Not-Contents, 200.

Division number 1 Private Parking: Ports and Trading Estates — Criminal Justice and Police Bill

Aye: 38 Members of the House of Lords

No: 198 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Resolved in the negative, and amendment disagreed to accordingly.

Clause 88 [Provision for Northern Ireland corresponding to s.87]:

[Amendment No. 24 not moved.]

Clause 131 [Inferences in police conduct proceedings]:

Photo of Lord Cope of Berkeley Lord Cope of Berkeley Conservative

My Lords, this matter was discussed last night at a quite late hour.

Photo of Baroness David Baroness David Labour

My Lords, does the noble Lord want to leave out Clause 131? Is it not Clause 126? I beg your Lordships' pardon. I am told that there is new numbering.

Photo of Lord Cope of Berkeley Lord Cope of Berkeley Conservative

My Lords, it was Clause 126 in the Bill used in Committee yesterday. However, in the Bill as amended it becomes Clause 131. It is exactly the same clause. They are renumbered because we have inserted some additional clauses. The speed with which we have had to consider these issues has made the position somewhat confusing. That is the explanation.

The matter was discussed late last night. That was the first time this proposition had been discussed in either House of Parliament. The proposition is that in police disciplinary proceedings an inference should be able to be drawn from silence on a specific matter. It is a familiar argument in connection with the criminal law. The noble Lord, Lord Bassam, stated last night that when the original consultations on the proposal took place the police staff associations were content with the proposal but that they had had second thoughts since. That is right. I am told that the original consultation was on the basis that a clause of this character was to be introduced, but that the standard of proof required should be the criminal standard of "beyond reasonable doubt". The standard now in police disciplinary proceedings is "the balance of probability". That has led the Police Federation and ourselves to oppose the insertion of this clause.

I made the point last night--I shall not labour it again today--that our police are a highly supervised body answerable not only to the law but to the complaints commission, their authority, and so on. If a policeman does something wrong, he finds himself facing criminal charges, if justified, or disciplinary proceedings, or both. We should be extremely careful about placing through this clause an additional burden on policemen in trouble, in particular when we have discussed the issue so little. I beg to move.

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Parliamentary Under-Secretary, Home Office

My Lords, in our view this clause removes an anomaly which would bring the regulations on police conduct into line with those in criminal proceedings where the new style of caution was introduced in the Criminal Justice and Public Order Act 1994.

It is perhaps worth reciting some history on the matter since it is an issue which has been around for a number of years. The Home Affairs Select Committee, in its report in March 1998 on police disciplinary and complaints procedures, proposed this change (at paragraph 109 of Volume 1 of the report of the proceedings of the committee on 15th January 1998) on the basis that it would go some way towards addressing quite proper concerns over the use of "no comment" interviews in police disciplinary investigations.

At present, if it is decided to instigate proceedings against an officer for a possible breach of the discipline code, now called the conduct code, the accused officer will be notified and cautioned along the lines of the traditional criminal caution. This stated:

"You do not have to say anything unless you wish to do so, but anything you do say may be given in evidence".

The Criminal Justice and Public Order Act 1994 modified this caution and the right to silence in an important way in that although it would be open to a defendant to say nothing, adverse inferences could be drawn where the defendant chose to do so in certain circumstances. This change was not accompanied by an equivalent change in the caution in disciplinary proceedings because it was originally thought that Section 50 of the Police Act 1996 would enable this change to be made by regulations. It was subsequently decided that the change should be made by primary legislation.

The modified caution states:

"You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you say may be given in evidence".

The proposal to change the caution was agreed by all members of the Home Affairs Select Committee and was discussed from 1998 onwards in the Police Personnel Procedures Working Group which is a working group of the Police Advisory Board. There was universal agreement from all the police staff associations, including the Police Federation, the Police Complaints Authority, the Association of Police Authorities and Her Majesty's Inspectorate of Constabulary.

The Police Federation now appears to have changed its stance. It had previously said that a police officer should be in no better and no worse a position than any other member of the public who is being investigated. The Police Superintendents' Association also believed that it was wrong to allow an unfettered right of silence to police officers subject to a disciplinary inquiry. Paragraph 4.1 of the report on the right of silence said:

"In view of the recent change to the general criminal law, we believe it is wrong that police officers who are subject to a disciplinary inquiry have an unfettered right of silence".

Let us consider what happens in other uniformed services. The Military Police use the same wording as in the modified caution. In fire service disciplinary proceedings, when a member of a fire brigade is given the opportunity to explain his conduct to an investigating officer he is informed that he is not obliged to say anything concerning the matter and he is warned that any explanation he makes may be used in subsequent disciplinary proceedings. The Prison Service does not use cautions, but a form of written words when staff are investigated and when they are charged.

The police force is a vital public service in which the highest standards of conduct and behaviour are necessary to maintain public confidence. If a police officer's conduct is called into question and he or she refuses point blank to explain, is it not reasonable to be allowed to draw inferences from that silence?

We are seeking the implementation of what was agreed three years ago. In other fields of employment, inferences can be drawn from silence in disciplinary proceedings. In this day and age, we believe that it is right that the police disciplinary proceedings should reflect best practice elsewhere.

Two lines of argument were advanced in the clause stand part debate in yesterday's Committee stage. One was that not enough detailed consideration had been given. The noble Lord, Lord McNally, used the phrase "on the bounce"--a phrase that he has repeated today. The other argument was that the difference between criminal conduct and misconduct was important and it was felt that the police were one of the most supervised occupations in the country, as the noble Lord, Lord Cope, said again this afternoon.

I do not find either argument compelling. No strong or powerful argument has been made to exempt the police from a practice that is becoming more widespread in disciplinary proceedings and is the standard in criminal proceedings. Concern was expressed that we should be extremely careful about the conduct of police disciplinary proceedings. In my experience, police disciplinary investigations and proceedings accord to the highest standards and are properly conducted and thoroughly carried out.

My understanding is that the former Home Secretary, Michael Howard, supported the change back in 1994. In 1996, Conservatives in government clearly anticipated that it would be put into effect by regulation. The Conservatives supported the move as recently as 1998, when the Home Affairs Committee report was supported by all parties. I find it most strange that they have changed their position. I am not convinced by the arguments that have been put forward. We have demonstrated our care and concern over the issue. We have consulted carefully through the proper formal arrangements. There has historically been widespread agreement and support for the change. That is why it was put into the Bill.

I hope that the Conservatives and the Liberal Democrats will not press the amendment.

Photo of Lord Cope of Berkeley Lord Cope of Berkeley Conservative

My Lords, the Minister and I have summarised the arguments that we made last night. It is time to seek the opinion of the House.

On Question, Whether the said amendment (No. 25) shall be agreed to?

Their Lordships divided: Contents, 140; Not-Contents, 116.

Division number 2 Private Parking: Ports and Trading Estates — Criminal Justice and Police Bill

Aye: 138 Members of the House of Lords

No: 114 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Resolved in the affirmative, and amendment agreed to accordingly.

Clause 144 [Short title, commencement and extent]:

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Parliamentary Under-Secretary, Home Office 4:25 pm, 9th May 2001

moved Amendments Nos. 26 to 29:

Page 114, line 33, after "section," insert "and".

Page 114, line 33, leave out "Part 2 of this Act and sections".

Page 115, line 1, leave out "Part 2 of this Act and section 90 come" and insert "Section 90 comes".

Page 115, leave out line 6.

On Question, amendments agreed to.

Schedule 1 [Extension of existing disclosure powers]:

Photo of Lord Cope of Berkeley Lord Cope of Berkeley Conservative

moved Amendment No. 30:

Leave out Schedule 1.

On Question, amendment agreed to.

Schedule 2 [Powers of seizure]:

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Parliamentary Under-Secretary, Home Office

moved Amendment No. 31:

Page 130, leave out lines 4 to 6.

On Question, amendment agreed to.

Then, Standing Order No. 46 having been suspended (pursuant to Resolution of this day), Bill read a third time.

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Parliamentary Under-Secretary, Home Office

My Lords, I beg to move that this Bill do now pass.

Moved, That the Bill do now pass.--(Lord Bassam of Brighton.)

Photo of Lord Phillips of Sudbury Lord Phillips of Sudbury Liberal Democrat

My Lords, I rise briefly to take up a point which arose 10 minutes ago when I asked the noble and learned Lord the Attorney-General whether one could expect the review of the DNA arrangements, which he offered to the House to take place after five years, to be undertaken by an independent person. In giving his answer to that and to another question which I raised, I do not believe that he dealt with that particular point. I should be most grateful if he would do so.

Photo of Lord Renton Lord Renton Conservative

My Lords, perhaps I may say a brief word. In spite of the concessions wisely made by the Government and their acceptance of the various opposition amendments which they originally opposed, I believe that it is regrettable that so little time has been spent by your Lordships in considering this lengthy Bill, which runs to roughly 170 pages. In view of my own experience, I regret to say that I fear that, in the course of time, the courts will throw doubts upon the wording and effect of some parts of the Bill. Therefore, I believe that further consideration of it should not wait until five years have passed. It may well be that thought upon it will need to be given sooner than that and that it would be much wiser to hold a review within two years.

Photo of The Earl of Listowel The Earl of Listowel Crossbench

My Lords, perhaps I may make a point in relation to the amendment to which I put my name today--Amendment No. 25 concerning Clause 131. I had, in fact, intended to put my name to an amendment changing Clause 136. In Committee late last night, I spoke to an amendment on Clause 131. Overnight, a renumbering took place. I make this statement for the information of the House.

Photo of Lord Williams of Mostyn Lord Williams of Mostyn Attorney General, Law Officers' Department, Deputy Leader of the House of Lords

My Lords, I want to make a point of amplification which the noble Lord, Lord Phillips, indicated to me that he wished to have. I am grateful to him for that. Whoever carries out the review will be a person of perceived and actual independence.

Photo of Lord Phillips of Sudbury Lord Phillips of Sudbury Liberal Democrat

My Lords, I am most grateful.

On Question, Bill passed, and returned to the Commons with amendments.