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Serious Organised Crime and Police Bill

Part of the debate – in the House of Lords at 4:30 pm on 6th April 2005.

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Photo of Lord Wedderburn of Charlton Lord Wedderburn of Charlton Labour 4:30 pm, 6th April 2005

My Lords, I hope it will be acceptable to your Lordships that something more should be said on this clause and on this part of the Bill. The way the matter fell in Committee—the marshalling of the amendments and the way in which they were, for the most part, not moved on this clause—was something on which I sought advice. I appreciated, perhaps rather later than I should, that the only way for the Government to say a little more about this matter was for me to put down the amendment on the Marshalled List, which I shall duly dispatch in the expected manner. This is an important matter because there is hardly a more serious deprivation of liberty than being the subject of lawful arrest.

I appreciate, too, that the law is in rather a mess. Fundamentally, it was not my understanding that the Government really had to adopt the option which they did in relation to it. Looking back over our Second Reading debate and at the extensive debate in Committee in another place, from which one could hardly say a complete consensus emerged, I have to admit that I—and not only I but various experts in the field who have spoken to me about this—was rather surprised that this was not a matter which could have been left over for another Parliament, when I think we would have had a much closer and prolonged debate on it. The calendar, of course, is in the Government's arrangement, and certain parts of the Bill have been left aside because they are controversial. One of the points about putting this amendment down is that the Government may find, as time goes along, that the new pattern of powers to arrest is rather more controversial than they appreciated.

The two matters raised in Clause 110 are the powers of a police constable to arrest and the citizen's power of lawful arrest, without a warrant in each case. I touch briefly on the basic matters: we are abolishing the distinction between arrestable and non-arrestable offences. We are introducing a power for the constable lawfully to arrest without a warrant anyone who is about to commit an offence. That specifically includes any offence whenever committed, someone who is in the act of committing an offence or suspected of being about to commit an offence and where there are reasonable grounds for believing that an offence has been committed, so long as it is necessary to arrest the person in question. New Section 24(5)(e) provides that that includes allowing the prompt and effective investigation of the offence or—and I stress the disjunction—the conduct of the person in question. It deals not merely with the investigation of offence but investigation of conduct.

Commentary on this matter has already begun in the journals. I am sure that the Government understand that that is there. I should like to refer to just one of the articles which are appearing and are about to appear. Professor Spencer of Cambridge, an ex-colleague of mine, who is not to be lightly brushed off as some extravagant gadfly on the law and is a very serious authority, has suggested that,

"the power to arrest will be limited, in theory, in that it will 'only' arise if one of a list of conditions is present. But the limitation is illusory, because the list contains 11 items, one of which is 'to allow the prompt and effective investigation of the offence or the conduct of the person in question'. It will be a rare case indeed in which one of these conditions"— such as that one—"does not exist".

Although Professor Spencer agrees that it is desirable for us to move forward and modernise, as the Home Office has put it, the law on arrest, both for constables and non-constable citizens, he questions seriously whether the Government's position on the matter is right in any respect. Having read all the proceedings, I have not really found a clear statement of the justification for moving at such speed and in such a direction on this matter. I therefore offer the Government an opportunity of saying something fundamental on the issue.

For instance, Professor Spencer says that the Government have promised that,

"after the Bill is passed, it will put limits on the . . . powers of the police by issuing a new code of practice".

But, he says, this is deeply unsatisfactory:

"What the government is telling Parliament, in effect, is this: 'Vote to extend police powers now—and trust us to impose some limits afterwards'".

That is put in the manner in which the author normally puts his points—rather directly.

He continues:

"In a democracy that respects the rule of law, the limits of coercive powers like these should be laid down in primary legislation, not in codes, written and rewritten as each new Home Secretary sees fit".

On the brink of an election, the power of the last words is immediate.

It is difficult to understand what traumatic damage to the social fabric would have been caused if a reform of this area of the law, which everyone agrees needs rethinking, had been left for a short or medium term in which much more profound debate could take place. With great respect to the other place, which spent some time on this issue on 18 January, one cannot think that all the corners of what is a vast territory were touched.

Of course, similar criticisms are being made about the citizen's power of arrest. The new citizen's power of arrest for any offence will include one where the person is in the act of committing an indictable offence:

"Anyone whom he has reasonable grounds for suspecting to be committing an indictable offence", or guilty of an indictable, offence and it is necessary to arrest the person.

Professor Spencer offers some thoughts on that new power, which goes far beyond breach of the peace and the like, in saying that,

"the Bill proposes to extend the existing power to cover all indictable offences, and limit the power, of the non-constable,

"for the suspect to be restrained or detained. For the citizen out of uniform, this new package would be as obscure and unhelpful as the present law. Unless they have law degrees, 'have-a-go heroes' do not know which offences are indictable, and which are not— or indeed—

"which ones are punishable by five years' imprisonment".

He suggests that this particular reform will create a great deal of danger for people who think that they can operate their powers as a non-constable citizen.

Therefore, I wish to raise two issues with the Government. The first that I have raised is why push this particular package through? My understanding, and my noble friend will correct me if I am wrong, is that the review of the PACE statutory powers did not require the Government to adopt this option. It is their choice and a great number of technical problems arise other than those that I have mentioned.

Secondly, it seems very strange for the power of arrest to cover all offences, serious or trivial. I understand what my noble friend on the Front Bench said in Committee. She said that the Government will come out with the new code of practice,

"so there will be an opportunity for debates and consideration of those issues".—[Hansard, 5/4/05; col. 639.]

Those are the issues that were raised in connection with the power of arrest. I should have thought that such a fundamental issue as deprivation of liberty without breach of the law on the part of the person doing it would have required fundamental debate of all the issues, including the necessity of the arrest—of which particular criticisms can be made, whatever the code of conduct—before the legislation went on the statute book.

I do not see how it would be a breach of any of the Government's obligations. Was this a manifesto commitment? It does not seem to have been. Why push this through now? We know that parts of this Bill are not being pushed through now because they are controversial. The fact that people in the other place and here have not spotted the controversy is not now open to the Government because I am pointing it out to them. This is very controversial: it will be controversial in the literature and in practice.

There is a final point which authors are raising immediately. Academics are allowed to raise points these days about ordinary people—they are rather ordinary people, especially academic lawyers. They are saying, with some seriousness, that the relationship between the police and ordinary people in the public is precious. If the new powers are more likely to give rise to mistakes—and I have every sympathy with someone who has to exercise them and avoid mistakes—surely it should have been argued out in much greater detail and not put into the calendar of the general election. It is not really suitable to be rushed through.

That expresses a strong view of my own, but I rely on those writers who are writing about the matter rather more critically than the Government have yet appreciated. Naturally, I look forward to the response of my noble friend on the Front Bench and hope that she will give us some rather better reasons for what has been done. I beg to move.