Lords Amendment

– in the House of Lords at 6:27 pm on 13 December 2001.

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38 After Clause 101, insert the following new clause—

XSCOPE OF POWERS CONFERRED BY THIS PART

Any powers conferred by this Part shall only be enforceable in relation to any suspicion, or investigation, or acts, of terrorism or any matters of national security."

The Commons disagreed to this amendment for the following reason:

Here it is not appropriate to limit the powers conferred by this Part of the Bill in the manner proposed by the amendment.

Photo of Lord Rooker Lord Rooker Minister of State (Asylum and Immigration), Home Office, Minister (Home Office) (Asylum & Immigration)

My Lords, I beg to move that the House do not insist on their Amendment No. 38 to which the Commons have disagreed for their reason numbered 38A.

I will take note of what my noble friend the Chief Whip said—as, I sense, will the whole House. The amendment passed by your Lordships hampers the Ministry of Defence Police's ability effectively to counter the terrorist threat. There are clear links between criminal activities and terrorism and it is not always possible to draw a clear line between the two. The amendment creates an artificial boundary between the two activities.

The amendment would not only have the effect of restricting the new powers that we propose to give the Ministry of Defence Police. It would also reduce its existing jurisdiction. The amendment is highly damaging to the fight against terrorism. At present, when given authority by the local police force, the Ministry of Defence Police can deal with non-terrorist related disasters in the vicinity of defence land—for example, a civilian aircraft that crashes on the approach to a military airfield. The Ministry of Defence Police can take action such as closing roads in response to a forest fire on lands adjacent to a defence estate. It can pursue suspects as they leave defence land.

Under the amendment passed by your Lordships, the Ministry of Defence Police would no longer be able to do any of those things—even with the authorisation of the local police force—unless there were a suspicion of terrorism or national security were involved. I cannot believe that the House would knowingly reconfirm that position.

Two Select Committees in the other place have supported the extension of the Ministry of Defence powers contained in the Bill; the Armed Forces Select Committee and the Defence Select Committee. I do not propose to read the quotes in front of me, which I have used before.

We acknowledge the concerns which have been expressed about the possible adverse affects of extending the jurisdiction, but we are not persuaded that they call into question the case for the proposed measures.

I turn briefly to Amendment No. 38C. The intention behind the amendment is said to improve the Bill in that it seeks to replace the previous amendment. I am afraid that it would be completely unworkable. It would not work in practice and it would cause utter confusion. Perhaps I may give two examples.

As regards the power to take photographs given in Clause 91, the existing police powers are in the Police and Criminal Evidence Act code of practice. The code gives power to take photographs of anyone charged or convicted of a recordable offence, but there is no power to use reasonable force. Clause 91 gives a power to take photographs of everyone detained in a police station and to use reasonable force if necessary. The effect of Amendment No. 38C appears to be that the power to use reasonable force to remove, for example, a balaclava would be available in relation to a suspect terrorist but not in relation to a suspect rapist.

As regards the Ministry of Defence Police, the amendment unfortunately complicates matters. It requires a Ministry of Defence officer who is called to assist a constable of the local police force to analyse whether he is about to do something which he could not previously have done. That will cause utter confusion at the point at which the decision is taken. Clause 98 was designed to make matters absolutely clear.

As regards powers conferred on the British Transport Police, currently they have jurisdiction only on the railways and elsewhere on railways matters. However, as police officers in uniform, they are frequently called to assist in incidents outside their railways' jurisdiction both by members of the public and other police officers. Indeed, it is estimated that they attend 8,000 such incidents a year. When acting in those circumstances, they will not have the powers and privileges of a police constable, but will have the powers only of an ordinary citizen. The effect of the amendments would be to confirm in legislation that British Transport Police officers can assist only outside their railways' jurisdiction when an incident concerns terrorism or national security. Thus, those officers when witnessing serious assault could intervene as police officers only if they were satisfied that the assailant was a terrorist. In other words, the original amendment passed by this House damages the current situation. I must say with great respect that Amendment No. 38C would be completely unworkable.

Moved, That this House do not insist on their Amendment No. 38 to which the Commons have disagreed for their reason numbered 38A.—(Lord Rooker.)

[Amendment No. 38B not moved.)

Photo of Lord McNally Lord McNally Liberal Democrat

rose to move, as an amendment to the Motion that the House do not insist on their Amendment No. 38 to which the Commons have disagreed for their Reason No. 38A, at end insert Xand do propose the following new clause in lieu thereof—

XSCOPE OF POWERS CONFERRED BY THIS PART

Any powers conferred by this Part, except in so far as they confer powers replacing police powers which existed immediately before the coming into force of this Part, shall only be enforceable in relation to any suspicion, or investigation, or acts, of terrorism or any matters of national security.""

Photo of Lord McNally Lord McNally Liberal Democrat

My Lords, the amendment arises from an exchange in the other place yesterday when the Home Secretary said:

XThe House of Lords—inadvertently, of course; no one would have done it intentionally—has made the use of MoD and British Transport police even more difficult than it is now".

My colleague, Simon Hughes, responded in the spirit of constructive improvement of the Bill that has been our line throughout:

XWe would reasonably consider the point he has made that the Bill should not further restrict organisations such as the MoD or transport police, although that has never been our intention".—[Official Report, Commons, 12/12/01; cols. 899 and 900.]

As the Minister clearly said, Amendment No. 38C aims to retain the restrictions which your Lordships voted for on Report, suggesting that they should be concentrated on terrorism, but providing the extra protection of retaining the additional powers in the Bill for those forces.

The Minister says that the amendment is unworkable and, as has been his line at times during the Bill, gave a few blood-curdling examples to frighten us into obedience. But ultimately we return to the more philosophical point which he raised earlier and which has run through the eight days of the debate. It is that, through the Bill, Ministers and the Government want to extend powers in all kinds of directions, using as their justification the terrorist threat. However, in response to the terrorist threat they sweep up many other powers and issues which need to be considered at greater length and as part of different legislation.

As has been pointed out, the MoD proposals were dropped from earlier legislation and a number of objections have been made to the extension of those police powers. I acknowledge that the Home Secretary has tried to move to reassure people about the concerns that have been expressed. We remain unconvinced and, in the spirit of the Chief Whip's extolling of brevity, I shall go no further. We are not convinced that these powers should stay in the Bill and I shall seek the opinion of the House at the appropriate time.

Moved, That this House do not insist on their Amendment No. 38 to which the Commons have disagreed for their reason numbered 38A and do propose Amendment No. 38C in lieu thereof.—(Lord McNally.)

Photo of Lord Faulkner of Worcester Lord Faulkner of Worcester Labour

My Lords, I want to speak strongly against the amendment proposed by the noble Lord, Lord McNally, because of the effect its passing would have on the powers, duty and role of the British Transport Police.

It is not true to say that Clause 100 of the Bill was extensively debated on Report. The debate on Report concentrated almost exclusively on the Ministry of Defence Police. The occasion when we had a full debate on the powers of the British Transport Police was in Committee. The Government's proposals in Clause 100 there enjoyed considerable cross-party support. For example, speaking for the Liberal Democrats, the noble Lord, Lord Bradshaw, said:

XFor reasons of safety, it is important that transport police officers should be given an extended jurisdiction so that they can pursue miscreants beyond the boundaries of railway premises".—[Official Report, 4/12/01; col. 741.]

We had a similar debate on an Unstarred Question which I tabled on 13th November. On that occasion the noble Viscount, Lord Astor, speaking from the Conservative Front Bench, also supported the extension of the jurisdiction of the powers of the BTP.

One needs only to look carefully at what happened in Bradford on 7th July this year to realise how crucial it is that the amendment is defeated and Clause 100 is passed. Throughout the 12 hours of disorder, members of the BTP support unit in Bradford supported and at times protected their colleagues from West Yorkshire Police, the civil force. Their discipline, restraint and courage led a detective inspector from the West Yorkshire force to comment that the BTP officers were openly talked about as heroes of the day.

To begin with on that day, the decision was taken to deploy the officers only at the railway stations because they were aware that legally the force's jurisdiction was confined to railway property. But as the disorder grew during the afternoon and evening, the West Yorkshire police came under sustained attack and became increasingly exhausted and appealed to the BTP support unit for help. That was given, despite its having no jurisdiction in the city and during the following four hours on the front line BTP acted under the command of the West Yorkshire Police and were deployed under the first WYP shield unit. Afterwards, the assistant chief constable described the officers who had helped his force as Xabsolutely magnificent" in what a judge then subsequently described as,

Xa situation where experienced officers came to fear for their lives and for the lives of their colleagues".

If we were to pass the amendment moved by the noble Lord, Lord McNally, we would be making it clear that what the British Transport Police did on that occasion, and on many other occasions to which my noble friend referred in his opening remarks—that is, to come to the help of the civil police and thus protect the rest of us as citizens—would be illegal. I hope very much that the House will reject the amendment.

Photo of Lord Dixon-Smith Lord Dixon-Smith Conservative

My Lords, I rise to support the amendment tabled by the noble Lord, Lord McNally. We should all recognise that we are at the core of the problem with which we have had to deal in regard to this Bill from day one. The problem is that this is a special Bill, brought before Parliament to deal with a special situation. It has been drafted in haste and considered with immense speed. The consequence of that is that we now have difficulties with it.

We think that the restriction that we have placed on the proposed change to the Bill is appropriate. The Government pointed out that the way in which it was originally drafted went too far and we seek now to draw back from that position. I am grateful to the noble Lord, Lord McNally, for doing so in his amendment.

It is not my job to tell the Government how to escape the dilemma, but given that we may be sitting around for some time tonight, perhaps they can come up with a better form of words. However, in the event that they do not do so, they will have to be satisfied with our efforts, whether or not they are perfect.

I return to my opening remarks: we are at the heart of the problem of legislating in this fashion. If that had not had to be done, we should not be facing the current dilemma. I support the amendment.

Photo of Lord Bradshaw Lord Bradshaw Liberal Democrat

My Lords, before the Minister rises to speak, perhaps I may make my position clear. I support Clause 100 as it stands. I believe that the British Transport Police need the powers contained in the clause, but I do not know enough about the MoD police to comment.

The Government are currently consulting on a properly constituted police authority for the British Transport Police, as well as a proper complaints procedure. Those developments will bring the BTP entirely into line with the civil forces. Aside from what was brought to our attention by the right reverend Prelate the Bishop of Southwark—that is, that the legislation may take some time, I believe that, in the case of the British Transport Police, such legislation is probably imminent. However, I am not asking about it at this point. Nevertheless, the consultation process is well under way and I think that legislation is likely to be enacted.

Photo of Lord Wallace of Saltaire Lord Wallace of Saltaire Liberal Democrat

My Lords, I wish to add simply that the situation in regard to the MoD police is clearly different from that of the British Transport Police. Major questions still need to be discussed and I am grateful for the informal talks that have been held.

Although the noble Lord, Lord Faulkner, made an interesting speech, it did not have anything to do with terrorism or with the emergency situation. The sensitive matters covered in this part of the Bill would be better dealt with in a police reform Bill, which we have been promised, rather than in emergency terrorism legislation.

Photo of Lord Rooker Lord Rooker Minister of State (Asylum and Immigration), Home Office, Minister (Home Office) (Asylum & Immigration)

My Lords, I should tell noble Lords that I have nothing new to say. The noble Lord, Lord Dixon-Smith, said that this goes to the heart of the problem. It certainly does that.

Some noble Lords and, indeed, some Members of the other place are going to have a hell of a job explaining their views to the public tomorrow if they choose to vote these proposals down. The provisions are central to the Bill. We are not trying to pull a fast one.

Furthermore, this part of the Bill cannot be separated. The vote will cover all or nothing. It concerns the MoD police, ordinary Home Office police officers and the British Transport Police. Those who have just spoken sympathetically in respect of the British Transport Police cannot have it both ways. They cannot say later, XOh well, I thought we were doing something slightly different". The whole part of the Bill will be affected.

I have to say to noble Lords that Members of the other place will find it quite outrageous that we do not seem to be prepared to address the issues. The Government have tried throughout to make the point that, in terms of dealing with crime and terrorism, we have in place police forces that are legitimate forces which can aid the other authorities. They are hamstrung in many ways. We have cited example after example in the debates on Second Reading, in Committee and on Report. Any reasonable member of the public would be absolutely bewildered—I repeat, bewildered—that Members of your Lordships' House have continued to maintain a stand that causes these other police forces to be hamstrung simply because they wish to see such legislation brought forward in another Bill. They have said, XWe need a police reform Bill because the issue is not connected to terrorism". Frankly, that will not wash.

I ask noble Lords to think very seriously before they divide on this issue.

Photo of Earl Russell Earl Russell Liberal Democrat

My Lords, before the Minister sits down, perhaps I may ask him for the last time, I hope, to concede that the hatred of terrorism is common to the whole House and that the debate concerns the effectiveness of the proposed measures.

Photo of Lord Rooker Lord Rooker Minister of State (Asylum and Immigration), Home Office, Minister (Home Office) (Asylum & Immigration)

My Lords, it is for noble Lords to explain their position. I cannot explain it for them.

Photo of Lord McNally Lord McNally Liberal Democrat

My Lords, we will be very happy to explain our position. Here we encounter the old problem; namely, that the Minister seems to think that almost any expedient can justify removing the protections and civil liberties that it is the duty of this Parliament to preserve. We shall continue to go through this Bill giving the Government the powers they need to fight terrorism. But the noble Lord will have to come back to the House with other legislation for the wider powers. It is as simple as that. I shall have no problem tomorrow justifying our vote. I think that I should test the opinion of the House.

On Question, Whether the said amendment (No. 38C) shall be agreed to?

Their Lordships divided: Contents, 174; Not-Contents, 153.

Division number 3 Private Parking: Ports and Trading Estates — Lords Amendment

Aye: 172 Members of the House of Lords

No: 151 Members of the House of Lords

Aye: A-Z by last name

Tellers

No: A-Z by last name

Tellers

Resolved in the affirmative, and amendment agreed to accordingly.

Original Motion, as amended, agreed to.