Committee (5th Day) (Continued)

Policing and Crime Bill – in the House of Lords at 8:24 pm on 20th October 2009.

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Amendment 152AY

Moved by Baroness Neville-Jones

152AY: Clause 77, page 103, leave out lines 3 to 5

Photo of Baroness Neville-Jones Baroness Neville-Jones Shadow Security Minister, Home Affairs 8:40 pm, 20th October 2009

My Lords, this amendment probes an issue that was partly alluded to and covered in a previous discussion. Will the Minister respond to the question: in what circumstances would the Secretary of State decide that he would no longer try to get the parties to a disagreement to resolve it and instead intervene with his own powers and just take a decision, irrespective of the views of the parties? It seems that the clause would allow him to do this. I beg to move.

Photo of Lord Faulkner of Worcester Lord Faulkner of Worcester Government Whip, Government Whip

My Lords, Amendment 152AY would remove new Section 24AO(5) and have the rather curious, and I suspect unintended, effect of removing the power that ultimately enables the Secretary of State to make a final determination to resolve disputes about the contents or implementation of airport security plans. I suspect that that is not what the noble Baroness intends, but she specifically asked how the resolution process could work in practice, and I am very happy to answer that question.

Because disputes are likely to vary significantly in nature and complexity, the Bill provides the Secretary of State with broad and flexible powers to resolve differences, whether these relate to airport security plans or police services agreements. Powers contained in new Sections 24AO and 29B allow the Secretary of State to compel parties involved in a dispute about an airport security plan or a police services agreement respectively to take steps that he considers will assist in the resolution of the dispute.

As part of what I will call the initial stage, the Secretary of State could choose to compel the relevant parties to attend meetings with officials in order, for example, to work through the evidence base for either document. Alternatively, the power could be used to facilitate an external inspection of policing. This approach could be very effective in particular cases and give parties the opportunity to resolve the dispute in a mutually agreeable manner at less cost than formal determination might require.

The Secretary of State may choose to determine a dispute either because steps taken during the initial stage have not satisfactorily resolved matters or because he considers it most appropriate to proceed directly to a determination. When determining a dispute, the Secretary of State will consider the information that the Bill requires to be considered, such as any representations from relevant persons, as well as any further evidence that he feels is necessary. That might include advice from independent experts.

I emphasise that the use of the powers that provide for the initial dispute stage is not a prerequisite for the Secretary of State's formal determination of a dispute. Whether or not the initial stage is employed, in the event that a dispute is unresolved the Secretary of State can proceed to a determination.

It is important that we have a flexible way of dealing with disputes, but also that the Secretary of State can determine them where necessary, so this new subsection is essential. I hope, in light of the clarification that I have offered the noble Baroness, that she will feel able to withdraw her amendment.

Photo of Baroness Neville-Jones Baroness Neville-Jones Shadow Security Minister, Home Affairs

My Lords, I thank the Minister for that reply and for outlining how the powers would be exercised. I hope that the procedures that are outlined in the Bill lead to co-operation, which is very important. The Committee has expressed some anxiety about certain aspects of the working of the Bill, and it will need to be monitored closely to ensure that it functions effectively. This is a very important part of the Bill both for the economy and for security.

I do not suppose that a Secretary of State would wish to exercise his powers arbitrarily. Equally, I hope that this is the type of situation where this sort of power would be exercised only rarely. Nearly always in disputes between parties, there are third parties with interests which will not necessarily be directly represented at the table. It is very important obviously that any decision taken does not cut directly across their interests. On the basis of the Minister's explanation, I beg leave to withdraw the amendment.

Amendment 152AY withdrawn.

Amendments 152AZ and 152BA not moved.

Amendment 152BB

Moved by Baroness Neville-Jones

152BB: Clause 77, page 104, line 43, at end insert—

"24ASA Provision of assistance

The Department of Transport and the Home Office must provide such assistance as may reasonably be required by a manager of an aerodrome, chief officer of police or other body drawing up guidance that, when issued and published with the approval of the Department of Transport and the Home Office, would be relevant guidance for the purposes of sections 29A to 29E of the Aviation Security Act 1982, as amended."

Photo of Baroness Neville-Jones Baroness Neville-Jones Shadow Security Minister, Home Affairs 8:45 pm, 20th October 2009

My Lords, this amendment rather reflects some of our earlier discussion. For all the Government's explanation of how this Bill will work, there is a certain anxiety on the part of those who are going to be called on to make it work about their understanding of what it implies. The Association of Police Authorities and the Airport Operators Association have said that the mechanisms for dispute resolution in the Bill are unclear, and we come back to the same point. I hope the Minister accepts that there is concern, even if he thinks that it is unjustified and that the provision will work out.

In response to these concerns, the amendment would require the Department for Transport and the Home Office to assist the relevant parties in drawing up guidance. Published guidance would be extraordinarily helpful in ensuring that we can avoid the new procedures resulting in dispute rather than co-operation and efficient operation. I beg to move.

Photo of Lord Faulkner of Worcester Lord Faulkner of Worcester Government Whip, Government Whip

This amendment seeks to provide a mechanism whereby airport operators, the police and other bodies could, with the consent of the Department for Transport and the Home Office, draw up relevant guidance for the purposes of new Sections 29A to 29E of the Aviation Security Act. These sections primarily concern the circumstances in which police services agreement disputes may be referred to the Secretary of State, and the Secretary of State's powers to deal with such disputes. The amendment would also place the Department for Transport and the Home Office under an obligation to provide reasonable assistance to parties drawing up guidance for the purpose of these sections.

The Committee may wish to be aware that the department is already producing a full guidance document that will provide advice to our security partners on these provisions. Under the terms of new Section 29C(3), the Secretary of State is already required to consider such guidance when considering any dispute either about the terms that should be included in a police services agreement, or any variation to an agreement.

This guidance document is undergoing an extensive process of consultation and colleagues from the Association of Chief Police Officers, the Association of Police Authorities, the UK Border Agency and senior industry figures have already made an extensive contribution to this work. While we have sought input from our security partners in the drafting of national guidance, we do not believe that it would be appropriate for these partners to lead on its production. It would not make sense for these partners to set the terms of the guidance that explains how their own legal obligations should be met. This is properly the responsibility of government.

The amendment specifically raises the question of what guidance will be issued in relation to new Sections 29A to 29E, which primarily concern powers of the Secretary of State to be exercised in seeking to resolve a dispute and when providing a determination. Because disputes are likely to vary significantly in nature and complexity, the Bill provides the Secretary of State with broad powers to resolve a dispute. This allows for each to be dealt with in the most appropriate matter. It is therefore not possible to give an undertaking as to precisely how each dispute case will be handled. But I am happy to accept the point made by the noble Baroness that there is concern about this and I hope that we are able to allay that concern. I hope that my earlier remarks regarding how the Secretary of State may choose to approach a dispute—for instance through use of an initial dispute resolution stage prior to determination—will be of help in this respect.

In view of the reply that I have given the noble Baroness, I hope she will be able to withdraw this amendment.

Photo of Baroness Neville-Jones Baroness Neville-Jones Shadow Security Minister, Home Affairs

As I understand what the Minister has just said, he takes the view that the department itself will draw up the guidance in consultation, not that the parties will be helped to draw up agreed guidance. I think my understanding of that is correct. It is a pity that they are not permitted, in a sense, a more active participation in drawing up this guidance, but I am glad to hear that they are to be consulted. I beg leave to withdraw the amendment.

Amendment 152BB withdrawn.

Amendment 152BBA not moved.

Clause 77 agreed.

Amendment 152BC not moved.

Clause 78 agreed.

Schedule 6 : Amendment of Part 3 of the Aviation Security Act 1982

Amendments 152BE to 152BGB not moved.

Schedule 6 agreed.

Clauses 79 to 84 agreed.

Clause 85 : Notification of proposal to include person in barred list

Amendment 152BH

Moved by Baroness Walmsley

152BH: Clause 85, page 111, line 27, leave out subsection (2)

Photo of Baroness Walmsley Baroness Walmsley Spokesperson for Children, Schools and Families

In moving this amendment, I shall speak also to Amendments 152BJ, 152BK, 163 and 164, all of which are grouped with it. We have come to the former Independent Barring Board, which is to be renamed the Independent Safeguarding Authority. My amendments fall into two sub-groups, so I shall deal with them in that way.

Clauses 85 and 88, the second of which relates to Northern Ireland, were introduced in the later stages of the Public Bill Committee in another place, with little explanation given for their introduction and no debate on them at all. The effect of these clauses is to require the new Independent Safeguarding Authority to notify employers and others if it is considering whether to include a person on the barred list. We believe that this is unjust and contravenes natural justice, as well as Parliament's original intention when the Safeguarding Vulnerable Groups Bill passed through Parliament. I worked on that Bill and I remember it clearly.

From July 2010, all people who work or volunteer with children and vulnerable adults will need to be registered with the new ISA. Currently, such people need to obtain an enhanced criminal record certificate. This certificate gives the same information as standard criminal record certificates—details of spent and unspent convictions and cautions and information about whether the individual is on the sex offenders register—but it also includes any other information that, in the opinion of the chief officer of police, might be relevant and ought to be included on the certificate. The type of information that can be included is very broad and does not have to relate to a conviction or even an arrest or prosecution. Under these new clauses, allegations that are not pursued or are dismissed as spurious, and prosecutions that result in an acquittal, can be disclosed to an employer, as can information about behaviour that is not criminal at all. All this is disclosed without the job applicant ever being given an opportunity to offer any explanation. For example, an applicant might be able to demonstrate that allegations of sexual impropriety against a student had been found to be false and had been withdrawn.

Sir Michael Bichard, in his report, was clearly concerned about this. He said that,

"at present, Enhanced Disclosure results are normally provided at the same time to the individual applicant and to the employer or voluntary body ... Any objections by the job applicant to the provision of certain information could not, therefore, undo any damage done to his/her prospects with that particular employer ... This raises important issues about the fair treatment of individuals. There is a risk that careers may be blighted and job prospects lost".

The Bichard report was quite clear about this.

An effective vetting system should ensure that those not suitable to working with children or the vulnerable are barred while also ensuring that potential employers remain unaware of unfair, malicious or spurious allegations. Only when a final decision has been made by the ISA should the employer be informed of the fact. It is undeniable that details of allegations as well as convictions might be relevant in determining suitability to work with children and the vulnerable, but it is up to the expertise of the ISA to determine that.

It is also an unfortunate truth that many careers have been blighted by unfounded accusations of impropriety. Let me give a case study that nicely illustrates the point. Susan successfully applied for a student nurse place through an NHS trust. She had started her first week at university when her enhanced criminal record certificate came back and showed that she was currently on police bail for suspected fraud. This happened after a bank account had been opened in her name through which thousands of pounds had been processed. No charges were brought against Susan and she agreed to appear as a witness for the prosecution of another suspect, who later pleaded guilty and was sentenced. This could happen to any of us whose identities are stolen. It very nearly happened to me recently.

Susan was given no opportunity to make representations to the police or any other body regarding what information was recorded and included in the enhanced criminal record certificate. When the certificate was received by her employer, naturally she was suspended and lost her student nurse place at university. The CRB subsequently apologised. Susan's bail should not have been included on the certificate and, after a disciplinary hearing, her job was reinstated. But it was too late; by this time she had already lost her place at university and suffered the embarrassment of being suspended from work. Although the information was deleted from her enhanced criminal record certificate, the information regarding details of her disciplinary hearing remains on her personal employment file. This can be viewed by her managers at any time in the future and used when providing references. As a result of the information on this file, she feels that she has been discriminated against—and I do not blame her.

The Safeguarding Vulnerable Groups Act set up three different situations in which a person could be included on the barred list. In the first, an applicant is automatically barred from registration in certain serious prescribed circumstances. In the second, a person is barred and may make representations to be taken off the barred list. The third situation is the one that concerns us here; it is where the ISA is considering barring a person because the person has in the past engaged in certain behaviour or if it appears to the ISA that he or she is a risk to children or vulnerable adults. In this third category, the affected person is entitled to make representations to the ISA as to why they should not be included on the barred list. This would allow those who have had allegations made against them to make those representations without an employer being made aware of them.

We believe that the main purpose of a system such as this is to ensure that only those matters that the ISA deems to properly affect a person's suitability to work with children or vulnerable adults are disclosed to the employer. Clauses 85 and 88 are therefore disappointing to say the least. If passed unamended, they would require the ISA to notify the employer or voluntary agency that it is proposing to include a person on the barred list but has not yet taken a final decision because it is awaiting representations. This means that, although the ISA has not made any decision and although it may ultimately decide that the person should not be on the barred list, the employer will be made aware of this fact. This seems to defeat the purpose of the creation of an independent body and, indeed, the very process of allowing the person to make representations.

When the Safeguarding Vulnerable Groups Bill was progressing through Parliament, the Government explained that it was necessary for the ISA to receive all the information and for it, not the police, to make the decision on what would be sent to the employer. Mr Parmjit Dhanda said in Standing Committee B on 11 July 2006:

"If information referred to the IBB is obviously false, spurious or insufficient to result in inclusion on a barred list, the intention is that it should not consider the information further than is necessary to establish that fact. There will be no detrimental effects on the person who is the subject of the referral".—[Official Report, Commons, Standing Committee B, 11/7/06; col. 31.]

I wish that were so. On the contrary, though, now the Government propose to allow the employer to have knowledge of the fact that the ISA is considering barring the person, even if the person is ultimately not barred. It is not difficult to imagine how an employer, most of whom rightly err on the side of caution, may decide not to make a job offer to someone who is not automatically cleared to work. This is bound to besmirch the reputation of the person concerned. Clauses 85 and 88 would defeat the main purpose of an independent vetting system and they should be removed from the Bill.

Amendments 163 and 164 would repeal all provisions in the Safeguarding Vulnerable Groups Act 2006 that allow for an enhanced criminal record certificate to be issued regarding a person who is also subject to monitoring by the ISA. Amendment 152BK would introduce a new clause to amend the Police Act 1997 to ensure that an employer who is required to check whether a person is subject to monitoring under the SVG Act cannot also be issued with an enhanced criminal record certificate.

As we have already explained, the ISA was developed to provide an effective new vetting system following the Soham murders tragedy. The Bichard inquiry report proposed vetting through the ISA model. It said:

"The central body would take a decision on the basis of the information above and notify the applicant. At that stage, no other employer, individual or institution would be informed. Under this system, employers would still decide whether or not a job required the postholder to be registered with the central body ... Employers would also retain the ultimate decision about whether or not to employ someone, using references and interviews".

It is understandable that an employer would still need to interview and take up references. It is a reasonable presumption, though, from what I have just read out, that Sir Michael Bichard did not envisage the need for enhanced disclosure to continue once the ISA came into operation, yet that is what is provided for in the Safeguarding Vulnerable Groups Act 2006, and it is clear that the Government intend to operate a dual vetting system through the Bill once the ISA is up and running.

One possible justification for the presumed need to continue with enhanced disclosure is that the ISA will not provide all the relevant details. Liberty, which briefed us on this matter, asked the Home Office why it felt the need for continuing enhanced disclosure from the CRB. It gave the example of a school bus driver, saying that it would be necessary to show not only that he had ISA clearance but also that he did not have a conviction for dangerous driving. We agree that extra disclosure might be necessary to determine suitability in that type of situation. However, that information would be available through an application by the employer for standard disclosure, which shows current and spent convictions, cautions, reprimands and warnings held on the police national computer. What it will not show is any record of allegations. We cannot think of a situation where information not available through standard disclosure might be relevant to the employment of someone who has been cleared by ISA vetting.

The Minister might suggest that the weeding of intelligence information could be done by the police to ensure that enhanced criminal record certificates do not contain inappropriate information. However, the ability of the police to operate an effective weeding policy was demolished by the case of Susan that I have just quoted and was a significant issue identified in the Bichard report, which concluded:

"The current regime also leaves the police to make some very difficult judgements, for which they may not be best placed ... There was a clear consensus in the evidence, including that from ACPO, in favour of taking the decision about what information should, and should not, be disclosed out of police hands. That consensus is, in my view, supported by a range of compelling arguments".

Allowing employers to continue to access enhanced criminal record certificates, in addition to checking whether a person has been ISA cleared, potentially breaches Article 8 under the Human Rights Act 1998—the right to respect for private and family life. Article 8 is not an absolute right. Article 8.2 allows for limitations if they are prescribed by law, serve a legitimate purpose and are proportionate. We would argue from these Benches that the continuation of access to enhanced criminal record certificates is not proportionate.

We cannot see justification for the continuation of a belt-and-braces approach for professions where the ISA will now operate. We have laid this group of amendments to ensure that the enhanced disclosure scheme cannot continue side by side with ISA registration. We are merely seeking adherence to a system that is fair and deals with the problems identified by Sir Michael Bichard. The Government must justify themselves if they want to go further. I beg to move.

Photo of Lord Skelmersdale Lord Skelmersdale - Shadow Minister, Shadow Minister 9:00 pm, 20th October 2009

My Lords, Part 8 of the Bill is headed "Miscellaneous" and, my goodness, isn't it just? My noble friend and I will be boxing and coxing on its various clauses and, looking at the Marshalled List, the absence thereof in one particular respect. I start with this rather curious group of amendments.

The first of the amendments tabled by the noble Baroness, Lady Walmsley, seems to rest on what I suspect is a misunderstanding of the legislation. I understood from my reading of the Bill that the Independent Safeguarding Authority, formerly the Independent Barring Board, is only to be empowered to inform employers, not to be given a duty so to do. This, we would of course support. I hope that the Minister can confirm that our understanding of the Bill is correct.

There are occasions where the risk is so great that action must be taken quickly to protect any potential victims. However, we surely all agree that spurious allegations must not be allowed to damage a person's reputation—for example, the student to whom the noble Baroness referred. In essence, if the ISA feels that the allegations that it is investigating are not of sufficient weight as to require immediate notification, it should have the discretion to withhold that information until the accused has had the opportunity to defend themselves and a final decision has been reached.

I should like to hear from the Minister why the Government feel these provisions to be necessary. As a general rule, legislation should not be duplicated unnecessarily and the responsibility for making sure that those who need to know do know should be clear and consistent. I am of course referring to the original Act.

Photo of Lord Brett Lord Brett Government Whip, Parliamentary Under-Secretary of State, Home Office, Government Whip, Parliamentary Under-Secretary (Home Office) (Identity) (also Lord in Waiting)

I thank noble Lords for their contribution to this debate. We can all agree that, where we are seeking to protect children and the vulnerable and not to impose unnecessary and unreasonable burdens on those who seek to serve with them, we need a sense of balance. In that regard, we have to err on the side of the basic requirement of the legislation, which is protection of those who are vulnerable.

Amendments 152BH and 152BJ would remove the provision for the ISA to notify any registered or known regulated or controlled activity providers about a person whom it proposes to bar. When the ISA reaches this stage, it will give the person eight weeks to make representations, after which it will make its final barring decision.

The ISA will reach the stage of proposing to bar someone when it has made a finding of fact as to the person's behaviour or the risk that they pose, and a judgment as to whether it is appropriate to bar them, subject to representations that they will have the opportunity to make. In making a finding of fact, the ISA will rely on information from employers or others who refer information, and from the police. How are the duties of the employer and the ISA to be balanced in such a way as to avoid the kind of examples to which the noble Baroness referred? Employers will have a duty to refer to the ISA those allegations which the employer substantiated and which led to an employee's dismissal, and any allegations that led to the employee's resignation while under investigation. The ISA is also interested in unresolved allegations, and employers may refer those, but they are not under a duty to do so.

The ISA is not interested in allegations that have been shown to be unfounded or malicious. That would go some way to finding reassurance in the case of Susan, who had a problem emanating from the amount of information that was collected, when her court of appeal was initially to the chief constable. The CRB does not own the records that it has; it does not compile them; it has collected that information from the police services, and it is the head of the police service in question—in the relevant county—who has the responsibility of answering the question on whether the information that has been released is reasonable.

The ISA will not make a finding of fact lightly, and will not do so on the basis of a single unresolved allegation. It will look for harmful behaviour that may have been validated through an employer's disciplinary procedures or criminal convictions or cautions, and it will look at the pattern of different, unlinked allegations which might enable it to draw a conclusion. If the ISA reaches a finding of fact and judges that it would be appropriate to bar the individual, that person has the right of representation, but what is it to do if it knows that that person currently works with children or vulnerable adults? The employer or voluntary activity organiser might be unaware of the allegations, if the individual had moved on after the original referral to the ISA. Is it acceptable for the ISA to be aware of a risk of harm and the employer not to be aware, during the period when the individual makes representations, for some two months? Who would be to blame if the individual caused harm in the workplace? The legislation and the ISA itself would, rightly, come under the spotlight if the ISA did not notify employers of a potential risk, together with the reasons for it. Yet these amendments would remove the powers to notify employers who are responsible for those working with vulnerable groups.

The issue of notification of the employer was included in the policy consultation of the Department for Children, Schools and Families on the vetting and barring scheme in late 2007 and early 2008. The principle of notifying employers was widely supported; what was not as widely supported but received mixed responses was when the notification should be made. The DCSF concluded, in its May 2008 report on the consultation, that employers should be notified at the point when the ISA places an individual under consideration for barring—which points to one of the concerns of the noble Baroness.

On reflection, we revised that view, and Clauses 85 and 88 reflect the policy that the employer should be notified when the ISA proposes to bar someone rather than at the earlier stage when it places them under consideration. I can understand the objection to notification at the earlier stage, before the ISA has reached a view about the referral. The ISA might have been notifying employers prematurely, before reaching a view about the risk of harm. We have met that objection by legislating for notification at the later stage when the ISA has reached a view.

I turn to Amendment 152BK, which we are unable to accept for a number of reasons. This amendment is aimed at preventing employers from obtaining enhanced criminal records disclosures in cases where they are also required to verify the "subject to monitoring" status under the 2006 Act. First, we believe that this is flawed as a matter of policy. While a status check will tell the employers whether the applicant is registered with the ISA under the new vetting and barring scheme, it will not tell them details of the individual's criminal record. In the case of enhanced disclosures, the details may include any information considered relevant by the police, in addition to convictions and cautions. There will be cases where that is still relevant to a prospective employer with the decision on whether to employ. For example, when an individual first applies to register with the ISA, the employer should be able to consider and act on any police information as soon as that becomes available—in parallel with the ISA considering it—and not have to wait until the ISA decides whether it is minded to bar.

Secondly, the amendment would not, in our view, achieve its aim: an employer could apply for a disclosure through an authorised registered body—an umbrella body—or as an individual large employer, or could simply use another counter-signatory to an application. In addition, it would not be possible under the current scheme to verify whether an employer is also the registered body. On balance, therefore, the evidence is that we have got it about right. We think that the safeguards are there. If an individual is already registered and new information comes to light, that may not be enough to require a barring, but it may be enough to cause concern—and it would be right to take those concerns on board. For example, allegations of fraud—not a particular fraud, but one in several different circumstances—might set alarm bells ringing. We believe that the balance we have is about right.

We also want to resist Amendments 163 and 164, because they would remove much more than just relevant police information from the vetting and barring scheme legislation. The amendments would entirely remove a range of powers or duties to make an enhanced disclosure—not just police information, but all the conviction and caution information as well—without proposing any other kind of disclosure as a replacement. That would remove two CRB duties that are completely unrelated to police information: a duty to inform regulatory authorities, on request, when the CRB is working on a disclosure on a person, and a duty to include on a disclosure whether a person is barred, with related information.

Information on whether a person is barred is not just part of "relevant police information". It is the cornerstone of the new scheme to improve the safeguarding of vulnerable groups. While their proposers may wish to pursue elsewhere their general concern on police information, these amendments are specific to the vetting and barring scheme and, paradoxically, go much further than police information. For all these reasons, I believe that your Lordships should reject these amendments.

Photo of Baroness Walmsley Baroness Walmsley Spokesperson for Children, Schools and Families 9:15 pm, 20th October 2009

My Lords, I thank the Minister for his reply. I also thank the noble Lord, Lord Skelmersdale, but I would tell him that while the ISA may only be empowered to do this, and it is not a duty, given the sort of risk-averse atmosphere that we operate in it will undoubtedly do it. The noble Lord talked about the risk; if the risk was so great that the ISA would want to inform the employer straight away, the person would fall into the first or second categories that I referred to earlier—the people automatically barred, with or without the right to representation.

The Minister talked about a person having eight weeks to respond and try to refute any allegations. Yet if they have already lost their job, that is far too late. Employers are very risk-averse these days; somebody's career will be totally destroyed if the employer is told about allegations which turn out to be quite wrong. How will the Government ensure that people know what the police are passing on? What training is being given to the police on the material that should be put in those certificates being passed on to the ISA?

I accept that the ISA will not take notice of spurious allegations, but that misses the point. The point is that before it makes that determination, somebody's career will be damaged. We need much more work with the police to ensure that they do not pass on things that are totally irrelevant, in case that it is passed on to employers. We need to educate employers so that they understand that just because the ISA is considering allegations does not mean that the relevant person is necessarily a danger to children and should not be employed at all. However, it would make sense for them to put certain safeguards in place to ensure that the person is not left unduly in charge of children or vulnerable people.

We on these Benches have always supported the cornerstone of this new scheme but we are very anxious that it should be fair to everybody, while, of course, properly safeguarding children and vulnerable groups. I will read very carefully what the noble Lord has said, but if he cannot answer now, will he write to me and answer some of the questions that I have asked about the police and providing information and education to employers?

Photo of Lord Brett Lord Brett Government Whip, Parliamentary Under-Secretary of State, Home Office, Government Whip, Parliamentary Under-Secretary (Home Office) (Identity) (also Lord in Waiting)

The question I can answer is to give an assurance that I will write. There is training and a balance here. There is, of course, a primary requirement to protect our children, but I agree that we should not unnecessarily damage people's careers. We have had a full discussion. I hope that the noble Baroness will withdraw the amendment. I will happily provide the information on training that she seeks.

Photo of Baroness Walmsley Baroness Walmsley Spokesperson for Children, Schools and Families

I am grateful to the noble Lord and beg leave to withdraw the amendment.

Amendment 152BH withdrawn.

Clause 85 agreed.

Clauses 86 and 87 agreed.

Clause 88 : Notification of proposal to include person in barred list: Northern Ireland

Amendment 152BJ not moved.

Clause 88 agreed.

Clauses 89 to 91 agreed.

Amendment 152BK not moved.

Clauses 92 to 95 agreed.

Clause 96 : Retention and destruction of samples etc: England and Wales

Amendment 152BL

Moved by Baroness Neville-Jones

152BL: Clause 96, page 120, line 9, leave out subsections (1) and (2) and insert—

"(1) After section 64A of the Police and Criminal Evidence Act 1984 (c. 60) insert—

"64B Retention and destruction of samples etc

(1) Subject to subsection (2), where a sample has been taken from a person under this Part, unless such a person has given consent in accordance with section 64(3AC), all such samples and all information derived from such samples shall be destroyed as soon as possible following a decision not to institute criminal proceedings against the person or on the conclusion of such proceedings otherwise than with a conviction.

(2) Subsection (1) above shall not apply—

(a) where the record, sample or information in question is of the same kind as a record, a sample or, as the case may be, information lawfully held in relation to the person; or

(b) where the person is cautioned for a recordable offence or given a warning or reprimand in accordance with the Crime and Disorder Act 1998 for a recordable offence in connection with the decision not to institute criminal proceedings or following the withdrawal or cessation of criminal proceedings; or

(c) where sections 64C or 64D apply.

(3) For the purposes of this section, criminal proceedings shall not be deemed to have concluded until the earlier of either (1) the lapse of any applicable appeal period or (2) a decision is made not to appeal such proceedings.

64C Retention of samples etc (violent and sexual offences)

(1) This section applies where any sample has been taken from a person under this Part where criminal proceedings were instituted against such person in respect of a sexual offence or violent offence and such proceedings concluded otherwise than with a conviction or with the person being cautioned for a recordable offence or given a warning or reprimand in accordance with the Crime and Disorder Act 1998 for a recordable offence.

(2) Subject to subsections (6) and (7) below, the sample and any information derived therefrom shall be destroyed no later than—

(a) 3 years following the conclusion of the proceedings ("the initial retention date"); or

(b) such later date as may be ordered under subsection (3).

(3) On application made by a chief officer of police within the period of 3 months before the initial retention date, the Crown Court, if satisfied that there are reasonable grounds for doing so, may make an order amending, or further amending, the date of destruction of the relevant sample and any information derived therefrom.

(4) An order under subsection (3) shall not specify a date more than 2 years later than the initial retention date.

(5) Any decisions of the Crown Court may be appealed to the Court of Appeal within 21 days of such decision.

(6) Subsection (2) does not apply where—

(a) an application under subsection (3) has been made but has not been determined;

(b) the period within which an appeal may be brought under subsection (5) against a decision to refuse an application has not elapsed; or

(c) such an appeal has been brought but has not been withdrawn or finally determined.

(7) Where—

(a) the period within which an appeal referred to in subsection (5) has elapsed without such an appeal being brought; or

(b) such an appeal is brought and is withdrawn or finally determined without any extension of the time period referred to in subsection (2), the sample and any information derived therefrom shall be destroyed as soon as possible thereafter.

(8) For the purposes of this Part a "sexual offence" or "violent offence" shall mean such offences of a violent or sexual nature as shall be set out in any order made by the Secretary of State with reference to this section.

64D Retention of Samples—Residual Power

(1) On application by a chief officer of police, the Crown Court may make an order requiring the retention of a sample taken from a person and any information derived therefrom, in circumstances where such a sample and any information derived therefrom would otherwise be required to be destroyed, if it has reasonable grounds to believe that—

(a) there is a serious risk of harm to the public or a section of the public; or

(b) such retention would prevent, inhibit, restrict or disrupt involvement by the person in the commission of a sexual offence or violent offence.

(2) An order under this section is not to be in force for more than 5 years beginning with the date of the commencement of the order.

(3) Any decision of the Crown Court may be appealed to the Court of Appeal within 21 days of such a decision.

(4) Where an application has been made for an order under this section, the relevant sample and any information derived therefrom shall not be destroyed until such application and any appeal thereof has been determined."

(2) At the end of section 113(1) of that Act insert—

"provided always that the protections in Part 5 relating to the retention of samples and any information derived therefrom shall also be applicable to persons investigated or under arrest under such Acts"."

Photo of Baroness Neville-Jones Baroness Neville-Jones Shadow Security Minister, Home Affairs

It seems that the Government have withdrawn their proposals for the retention of DNA samples. It would be nice to think that this was in response to the almost universal outcry against them. They could have replaced them with something better that would not have taken a great deal of parliamentary time.

We on these Benches were gratified when the European Court of Human Rights' judgment obliged the Government to take note of what we had been saying for such a long time; namely, that the approach that the Government were pursuing on DNA was wrong. Therefore, we were disappointed when the Bill appeared and the inadequacy of the Government's response became clear. Rather than accepting the judgment and the force of opposition arguments, combined with the weight of expert advice from a huge variety of experts and independent bodies, the Government have sought to kick the issue into the long grass in the hope that it will disappear from the front pages, which we doubt.

The problem was that we were presented with nothing more than a framework power, giving the Secretary of State the power to introduce whatever he wanted via secondary legislation. It is not surprising that this has come in for criticism from all sides. The Joint Committee on Human Rights and the Delegated Powers and Regulatory Reform Committee have both raised serious concerns about proceeding in this way. Not only would it have denied to both Houses of Parliament the chance to scrutinise the Government's proposals properly, it would have left the long-term development of the DNA database open to unacceptable levels of uncertainty.

The Government seem finally to have accepted that this is not a way to proceed and have withdrawn the proposals. Our problem is that the effect of withdrawal and no replacement in legislation results in yet further delay. The relevant judgment occurred in December last year; the consultation on the Government's recommendation closed at the beginning of August—more than two months ago—and the whole matter has been debated for several years. The Government could have acted administratively to change policy without waiting to change the law, but they have chosen not to.

We have a good template in the legislation passed in Scotland. It has an alternative system, there is available a wealth of expert advice and recommendations from a huge variety of bodies—including the Government's non-departmental public body, the National DNA Database Ethics Group—as well some extremely experienced and capable NGOs. We have a body of experience and plenty of advice. On these Benches we do not see any reason for further delay. This concerns us, because it has been going on for a long time.

We certainly accept what the Government have chosen to do, but we intend to return at Report to seek the insertion of Conservative proposals for the future of the DNA database. Their key point is that DNA taken from innocent people will be retained only in certain cases involving sexual and violent offences—and then for only up to five years, rather than indefinitely. I beg to move.

Photo of Baroness Miller of Chilthorne Domer Baroness Miller of Chilthorne Domer Spokesperson for the Home Office

My Lords, we have Amendment 152BM in this group. We are delighted with the news that the Government intend to withdraw their incredibly inadequate proposals and bring back something far more complete later. Secondary legislation was certainly no way to deal with such a critical issue, when what we are talking about—the presumption of innocence—is a cornerstone of our justice system.

I am extremely pleased that the noble Baroness, Lady Neville-Jones, is equally taken with the Scottish system as of course we are. When we were in coalition on the Executive in Scotland, my Liberal Democrat colleagues led the charge to introduce a far more practical system, which is proving to be more effective than that in England. I should be interested to hear from the Minister on that. No doubt he is aware that despite the huge increase in the number of profiles on the database from 2.1 million in 2002 to 5.6 million last year—these are the most recent figures that I have—the number of detected crimes in which there was a DNA match has reduced from 21,000 to just 17,500. That suggests that the huge increase is producing its own problems and that the database is becoming unwieldy. That is a practical issue.

In the interests of time, I wish to concentrate on the principle issue, which is that innocent people should not have their DNA kept on the database and that those involved in a minor crime should not expect to be on the DNA database year after year. The Government have lost the ability to see where the point of rehabilitation and dues paid to society arrives. At that point there is no presumption of innocence. I am aware that if the noble Lord, Lord Mackenzie of Framwellgate, were here he would tell us, as the Minister did at Question Time the other day, of all the crimes that have been solved as a result of DNA. There is certainly an argument to be had.

Nevertheless, there has been no national debate on whether we should have a database. I am aware that the Government have a consultation out at the moment, and it will be very interesting to see the responses to it and to find out when the Government intend to bring back legislation to address what is now a very pressing issue. Almost a year has gone by since the European Court of Human Rights ruled on the retention of the DNA samples of S and Marper and it is very urgent that that happens. The Government have heard that both opposition Benches are very attracted to the Scottish model and, when they bring back this legislation in an acceptable form, I advise them to do so in a Bill that deals only with this issue. If they add it to a Bill containing many other issues, in a Session that will last 16 sitting weeks at most and probably less, there will be no chance of getting this legislation through and they will then be faced with deep problems so far as concerns the European court ruling. If they kept it simple and practical and along the lines of a model that already works in the United Kingdom—that in Scotland—they would have a very good chance of getting it through.

Photo of Lord Brett Lord Brett Government Whip, Parliamentary Under-Secretary of State, Home Office, Government Whip, Parliamentary Under-Secretary (Home Office) (Identity) (also Lord in Waiting) 9:30 pm, 20th October 2009

My Lords, I sense that sometimes we are damned if we do and damned if we don't. Returning the DNA and fingerprints of those arrested but not convicted is an important topic that deserves the full attention of all of us involved in the legislative process. Since the European Court of Human Rights reached its decision in the case of S and Marper v the United Kingdom last December, the Home Office and its criminal justice partners have been working hard to produce a proportionate and effective framework for the retention and disposal of DNA and fingerprints. As many noble Lords will be aware, and as the noble Baroness commented, the then Home Secretary, my right honourable friend the Member for Redditch, launched a public consultation in May this year.

The Government have always acknowledged that there is a case for saying that the detail of the retention periods should be set out in primary legislation. However, against that we have had to weigh the importance—we have just been chastised about it—of responding to the European Court of Human Rights judgment within a reasonable timeframe. We judged that the approach taken in the Bill provided a sensible opportunity for us to demonstrate our commitment to implementing the judgment, to consult swiftly but thoroughly on the detail of the policy and to give Parliament an opportunity to approve this through the affirmative resolution procedure.

Over the summer, we have carefully considered the views expressed by the Delegated Powers and Regulatory Reform Committee, of which I am a former member and for which I have great regard, the Constitution Committee—another committee of importance—the Joint Committee on Human Rights and Members of both Houses of Parliament. Those and the responses to the Home Office consultation document have all held our attention. Although we remain committed to implementing the judgment of the European Court of Human Rights at the earliest opportunity, we accept the concerns raised by the committee and other stakeholders and we accept the strength of feeling in your Lordships' House. Given that strength of feeling, we feel that it is important to move forward with consensus, if possible. We therefore accept the view that this issue is more appropriately dealt with in primary legislation and have decided to invite Parliament to remove Clauses 96 to 98. As soon as parliamentary time allows, we will bring forward appropriate measures which will place the detail of the retention periods in primary legislation, allowing full debate and scrutiny of the issue in both Houses.

I heard what the noble Baroness, Lady Neville-Jones, said about bringing forward proposals on Report. We took the view that if we did that, it would be seen as pre-empting the consultation—a measure that would be condemned in this House as not giving the other place the opportunity of considered discussion of a proposal that would be on the face of legislation. Therefore, we hope to allot an early parliamentary slot in which to take on board this important measure, among others. On that basis, I ask the noble Baroness to withdraw Amendment 152BL and other noble Lords not to press Amendment 152BM, and I will join the noble Lords and noble Baronesses whose names appear on the Marshalled List in opposing Clauses 96 to 98 standing part of the Bill. We could have a debate on amendments which will not survive our joint view that this clause do not stand part but I look forward to a more thorough discussion, in good time, with due consideration of proposals which can engage our attention in this House and in the other place. I believe that consultation will produce a better result than we would have had if we had gone on our original plan or tried to bring something forward on Report.

Photo of Baroness Neville-Jones Baroness Neville-Jones Shadow Security Minister, Home Affairs

The Minister justifies the production of a framework Bill on the ground that speed is needed. It is difficult to talk about speed when the judgment was in December last year. The Government could have proceeded more speedily than they have. Given the Government's attitude to some of the legislation, they should have known that others would not be happy with them introducing a framework Bill and that there would have been a very lengthy debate and an attempt to amend. I can see why the Government have withdrawn the proposal.

However, the UK, in the face of great criticism of the legislation in this country, is taking an excessive time to amend its legislation to conform to a judgment of the European court. The difficulty which we now face is that even if the Government produce legislation in the next Parliament, we may find that we cannot get it through so there will be further delay, which in our view is not acceptable. That is why we wish to speed up the process and try to bring forward legislation which has been well proved in another part of the United Kingdom—in Scotland—and which we believe would work well in England, Wales and Northern Ireland. Obviously, we cannot proceed this evening with the Government's legislation, so for the time being, I beg leave to withdraw the amendment.

Amendment 152BL withdrawn.

Amendment 152BM not moved.

Clause 96 disagreed.

Clauses 97 and 98 disagreed.

Clause 99 : General information powers in relation to persons entering or leaving the UK

Amendment 152C

Moved by Baroness Harris of Richmond

152C: Clause 99, page 123, line 34, at end insert—

"( ) The requirement to produce a passport under subsection (1)(a) does not extend to a person on a local journey as defined under section 1(3) of the Immigration Act 1971."

Photo of Baroness Harris of Richmond Baroness Harris of Richmond Deputy Speaker in the Lords, Deputy spokesperson for Northern Ireland, Home Affairs spokesperson for police matters, Deputy Speaker (Lords)

In the Borders, Citizenship and Immigration Bill, which was considered earlier this year and which has now received Royal Assent, the Government introduced reforms to the common travel area which would have ended the CTA as a passport-free zone, introduced passport control on air and sea routes and raised the prospect of mobile immigration controls and actual, or de facto, document requirements on the border between Northern Ireland and the Republic of Ireland. The reforms would have had serious significant consequences for the people of Northern Ireland and the Republic of Ireland. I do not intend to repeat those concerns at this stage, except to say that one concern was the risk of racial discrimination emanating from the land border checks.

In the Report stage of that Bill, this House voted by a majority of almost two to one to remove the common travel area reform from the Bill entirely. When the Bill returned to this House for further consideration the Government withdrew the offending clauses from the Bill, for which we are extremely grateful. However, Clause 99 of this Bill could have consequences for the CTA as well. It contains a new power for customs officers to require,

"any person entering or leaving the United Kingdom—

(a) to produce the person's passport or travel documents for examination".

There is at present no reference to CTA routes being exempted.

The CTA—common travel area—is an immigration arrangement, and customs powers are exercised between the UK and Ireland including on the land border. UKBA officials have outlined that the new power is designed to provide explicit legal cover for long-standing customs practices, carries no penalty for non-compliance and argue that it is a power to see whatever travel documents a person is carrying and will not require the carrying of a passport on routes where no passport is otherwise required.

However, exercising a power requiring the production of a passport without any explicit safeguards could lead to an effective document requirement for targeted groups. Notably, the power is a customs power; hence it would not presently carry the same high level of risk of targeting by racial profiling that the proposed immigration practices could entail. However, customs and immigration functions are presently being merged following the Borders, Citizenship and Immigration Act 2009. Both are envisaged as being concurrently exercised by UKBA officers.

The Lords Select Committee on the Constitution wrote to the Minister in relation to how this would impact on CTA routes. He replied:

"By virtue of the provisions of Part 1 of the Borders, Citizenship and Immigration Bill officers of the UKBA will in future conduct both customs and immigration work at the border. UKBA officers will therefore be able to exercise the powers in clause 99 along with other customs powers. Despite the fact that UKBA officers may be exercising both customs and immigration functions, customs powers may not be used for immigration purposes or immigration powers for customs purposes. The powers available under clause 99 would not therefore be available to officers for the purpose of checking the immigration status of persons travelling within the CTA. However, having properly exercised a power for a customs purpose a UKBA officer will be able to use the information gained for immigration purposes and vice versa".

There must a risk of abuse whereby a UKBA officer could stop and require a passport, stating the exercise of broad customs powers, when the real purpose of the stop was targeting an individual for immigration purposes. Having ostensibly exercised the customs power, the UKBA officer could then share that information with himself or herself and exercise immigration powers. You could not really make this up. Effectively this power, without CTA safeguards, could lead to a legally dubious but nevertheless effective passport requirement on the land border which in part could facilitate the ad hoc checks about which we are concerned.

I have recently returned from the British-Irish Parliamentary Assembly, and a number of noble Lords sitting in their places tonight will concur with what that body decided unanimously yesterday. It approved a motion from Mr Stephen Rodan, the Speaker in the Tynwald, which is in the Isle of Man. The motion was:

"That the British-Irish Parliamentary Assembly notes the UK Government's policy on e-Borders; further notes the commercial and cultural advantages of the Common Travel Area to the different jurisdictions within it; and is of the opinion that no legislative changes to the current arrangements should be made without a full consultation by the UK Government of all the jurisdictions within the Common Travel Area; and refers the matter of the e-Borders policy of the UK and its impact on the Common Travel Area to Committee A for it to inquire into this matter and to report to the Assembly".

If we do not take note of this tonight, it will be too late and there would be very little point in the whole thing being referred to committee A, as I told the assembly yesterday.

The parliamentarians who make up the assembly are from England, Wales, Northern Ireland, Scotland and the Republic of Ireland, as well as our Crown Dependencies of Jersey, Guernsey and the Isle of Man. It is extremely important that we listen to their concerns. We are asking the Government to do what they did last time and withdraw this particular part of the Bill until a full consultation has taken place with all the members of the constituent assembly body. I beg to move.

Photo of Lord Cope of Berkeley Lord Cope of Berkeley Conservative 9:45 pm, 20th October 2009

My Lords, I, too, am a member of the British-Irish Parliamentary Assembly and a member of the committee to which the noble Baroness referred. It is in the middle of a study of border controls within the common travel area, with particular reference to e-border controls, which are now coming in. The assembly is keen to preserve the common travel area in the way that it has existed up to now.

Since it was raised in the assembly yesterday, I have been in touch with the Isle of Man Government and it is clear that there has been some consultation between the UK Government and the Isle of Man Government. They have been reassured that Clause 99 does not apply to the Isle of Man. Nevertheless, I have a number of questions. The power is to require a passport or travel document from someone entering or leaving the United Kingdom, including travelling within the common travel area to the Republic, the Channel Islands or the Isle of Man. Will the Minister confirm that this power does not apply to anyone travelling to Northern Ireland from Great Britain? That, after all, is not leaving the UK—it is travel within the UK. Am I correct in saying that nobody who is concerned about the position of Northern Ireland need be concerned about this clause? That is how it appears to me.

Secondly, what is a travel document? I thought at first that a travel document—you have to produce a passport or a travel document—might be, for instance, a document that a refugee or stateless person might have, but that is actually defined as a passport for this purpose. In subsection (2)(c) of proposed new Section 157A, "passport" means,

"a document that can be used ... instead of a passport", so refugee papers and so forth would be defined as a passport, but travel documents are also included. What are travel documents if they are not such documents?

As the noble Baroness pointed out, the clause does not specifically require anyone who is travelling anywhere to have a passport, but a customs officer can require them to produce one, which is a rather backwards way of compelling people to have a passport. That is presumably the purpose of it. What happens if someone travelling within the common travel area to Dublin or one of the Crown Dependencies does not have a passport with them when the customs officer requires them to produce it? I am not sure what the sanction is, and it would be helpful to know.

From the answer that I had from the Isle of Man Government this afternoon, it seems that travel within a customs union, such as exists with the Isle of Man and the other Crown Dependencies, is not covered, because they are customs powers. Is that correct? If so, the Crown Dependencies, at any rate, need not bother about it, although that is of course not the case for the Republic of Ireland, which is within the CTA, but the customs arrangements are different.

The last point that concerns me is the question of the amalgamation of customs and immigration. The noble Baroness made the point, so I shall not dwell on it, but it appears that if a border agency official who at a particular point has his customs hat on, he can require a passport, but if he takes his customs hat off to put his immigration hat on, he cannot. If he happens to see a passport when he is wearing his customs hat, he is not allowed to swap his hat over and take notice of it the other way round. That seems a very peculiar arrangement. As a former customs Minister, I have always been hesitant about the amalgamation of those two services. I am not necessarily against it—it may prove effective and it has a certain simple appeal—but I have always thought that there would be complications in it, and perhaps that is one which should be considered.

We all want to try to preserve the common travel area. We do not want it to be nibbled away at by various side means. I seek some reassurance on my questions.

Photo of Baroness Neville-Jones Baroness Neville-Jones Shadow Security Minister, Home Affairs

My Lords, I just add that it is evident from what has been said so far that we on these Benches support the amendment. To provide reassurance, would the Government be willing to put in place an explicit safeguard for the common travel area? That would greatly help to alleviate the evident anxieties.

Photo of Lord Brett Lord Brett Government Whip, Parliamentary Under-Secretary of State, Home Office, Government Whip, Parliamentary Under-Secretary (Home Office) (Identity) (also Lord in Waiting)

First, I promise that I will write to noble Lords—not, on this occasion, because I am in any doubt about the answers that I should give, but because it is a complicated issue. No one has greater regard for the British-Irish Parliamentary Association than I do and I am sure that its concerns and views will be taken on board in the appropriate quarters. I was very much with the noble Baroness in her moving of the amendment, when she rightly harped back to the provision rejected by your Lordships' House of a change to the common travel area. I was going to start by saying that I can assure her that such concerns are misplaced. I believe that they still are, but I am sure that we will benefit from correspondence setting out in some detail the answers to the points made by the noble Lord, Lord Cope.

The first thing to say is that we are not making any changes to the common travel area. This is not about changing legislation relating to the CTA. The CTA is an immigration concept. Common checks already apply in the area known as the CTA, except for the Isle of Man. It is probably helpful if I explain, although at this late hour it will take a few minutes, how the customs controls within the CTA operate.

As I said, the CTA is an immigration concept and deals not only with customs and revenue matters. Immigration controls are not applied within the area, with the exception of journeys to and from the Isle of Man. Customs checks already apply in the CTA, so we are not putting in place something that does not already exist.

To turn to the question of the travel document, every airline that I have been on for several years has demanded some form of photo identity before it will let me on the plane, or at least it will want that identity to verify that I am the person named on the ticket and travelling. Therefore, it is not a question of a travel document as highfalutin as a passport or a refugee travel document; it will be the document that was required to journey by sea or air. Some sort of photo ID is required; I cannot think of any exceptions. For the purpose of anti-terrorist checks, travellers within the CTA can already be asked for a passport or another form of ID. This clause will make it clear that the officers carrying out customs checks can also seek such travel documents.

The noble Baroness's concern is about the two-hats approach of the UKBA. Police officers have various powers under various acts of Parliament, yet we do not believe that they will easily confuse them if they are dealing with parking offences rather than social disorder on a council estate. The customs officer knows when he is operating as a customs officer. He will be instructed and given guidance that he is not allowed from that to seek access to passports or to use that information for immigration.

Customs is now an intelligence-led operation looking at people who are bringing in drugs, contraband, weapons or whatever. If we are looking for Mr Smith, we have to identify the right Mr Smith. We do not want to round up five Mr Smiths to find that four of them are indignant because they have been stopped and questioned. We also have to find where the Mr Smiths have come from. We have intelligence and are looking at where they started and where they are when we ask the questions, "Can we see your travel document?" and "Where are you going and where have you been?".

This is not something that we need to be fearful of. I can appreciate the concern now that the UKBA can exercise both powers, but I can give an absolute assurance that customs powers cannot be used for immigration purposes. The powers available in Clause 99 could not be deployed to check the immigration status of persons travelling in the CTA. This is not an attempt to reinstate the proposed CTA measures in the Borders, Citizenship and Immigration Bill. The BCI Bill would have introduced immigration checks on CTA movements and required a passport. This clause is not a requirement to carry any document other than that currently required for travel via air or sea.

I hope that it may further reassure noble Lords if I point out that the Constitution Committee also raised concerns about the application of Clause 99 to the CTA but that, with the further explanation that I gave, it concluded in its report that the clause does not infringe constitutional principles. The Crown dependencies do not take issue with its application. I will provide more detailed responses to the questions not only for noble Lords participating in this debate but, by putting a copy in the Library, for those who would be unnecessarily and unreasonably alarmed by reading Hansard. This is a customs requirement; it is not an attempt to achieve something on the common travel area that your Lordships rejected some months ago.

Photo of Baroness Harris of Richmond Baroness Harris of Richmond Deputy Speaker in the Lords, Deputy spokesperson for Northern Ireland, Home Affairs spokesperson for police matters, Deputy Speaker (Lords)

My Lords, I am very grateful to the Minister for responding. Some of his responses have made me even more concerned, so I look forward to hearing what he has to say. I hope that it will be a full account.

The noble Lord, Lord Cope, talked about nibbling away at the CTA. That is exactly what we think will happen. I do not think that this is just me being paranoid. The Northern Ireland Human Rights Commission has written an extremely good briefing paper on the proposed common travel area reforms from August 2009. It is a pretty thick document. The commission has serious concerns about this clause. Saying that the Crown dependencies are not concerned about this any more is entirely wrong. Yesterday, they were very concerned and it is miraculous to me that overnight their concerns can have been calmed. They talked about the Memorandums of Understanding between the Crown dependencies that were promised. They were hardly consulted on this proposal, but that is what they want. They really ought to be given the proposals and the consultation that they ask for and which they required yesterday. I hope that the Minister will not fob them off with some of the stories that they talk about, because these roles can be interchangeable; there is no question about that. You cannot ask someone to say one thing one minute and then say, "Oh well, actually, I did not see that but now I am exercising my powers in this way". It is quite ridiculous.

I have listened to what the Minister has said. I will withdraw the amendment at this stage, but we will definitely come back to this on Report to see what more the Government have to say. I hope that he will consult widely and thoroughly.

Photo of Lord Cope of Berkeley Lord Cope of Berkeley Conservative 10:00 pm, 20th October 2009

May I intervene before the noble Baroness completes what she has to say, as we are in Committee? Will the Minister respond to one of the questions that I asked him? It is an easy one and we may be able to dispose of it immediately. Will he confirm that these powers do not apply to travel between Northern Ireland and Great Britain? Secondly, the Minister spoke of air and sea travel, but will he confirm that these powers apply to crossing the land border as well as to air and sea travel?

Photo of Lord Brett Lord Brett Government Whip, Parliamentary Under-Secretary of State, Home Office, Government Whip, Parliamentary Under-Secretary (Home Office) (Identity) (also Lord in Waiting)

It is difficult to look at the concept of travelling across a land boundary between Northern Ireland and the United Kingdom without travelling aboard a car ferry. I can give the first assurance that the noble Lord wants about Northern Ireland, but, on the questions asked by the noble Lord and the noble Baroness about consulting the dependencies, in order to reassure your Lordships I will come back to this issue on Report, when we will discuss it further and I can give the noble Baroness an update from our side.

Photo of Baroness Harris of Richmond Baroness Harris of Richmond Deputy Speaker in the Lords, Deputy spokesperson for Northern Ireland, Home Affairs spokesperson for police matters, Deputy Speaker (Lords)

That is, unless the Minister decides that he will withdraw this part of the Bill altogether. I beg leave to withdraw the amendment.

Amendment 152C withdrawn.

Clause 99 agreed.

Clauses 100 to 108 agreed.

Amendment 153

Moved by Baroness Miller of Chilthorne Domer

153: After Clause 108, insert the following new Clause—

"Interpretation of disorder

(1) The Public Order Act 1986 (c. 64) is amended as follows.

(2) In section 2 (violent disorder), after subsection (5) insert—

"(6) The presence of 3 or more people together as part of a peaceful demonstration will not, in itself, be taken as conduct that threatens unlawful violence.

(7) An act of non-violent civil disobedience will not be taken as conduct that threatens or constitutes unlawful violence."

(3) In section 12 (imposing conditions on public processions), after subsection (1) insert—

"(1A) The presence of 3 or more people together as part of a peaceful demonstration will not, in itself, be taken as public disorder.

(1B) An act of non-violent civil obedience will not be taken as serious public disorder.""

Photo of Baroness Miller of Chilthorne Domer Baroness Miller of Chilthorne Domer Spokesperson for the Home Office

My Lords, it is unfortunate that, in a year in which we have had so many issues about the policing of protests, we have a policing Bill that makes no attempt to reform some of the worst laws on protesting.

The first group of amendments that deal with this issue—Amendments 153 to 155 and Amendment 159A—suggests two approaches, the first of which is that we repeal legislation that has been used incorrectly to prevent protest. The second group of amendments in this grouping—Amendments 156 and 159—defines orderly protest and aims to protect the right to peaceful protest.

The Minister may say that it is too early to discuss these amendments in the light of the G20 protests, which resulted in five independent investigations by the IPCC—it received 276 complaints about them—and, before those protests, the difficulties of the Kingsnorth protest, which resulted in an important strategic-level review by the National Policing Improvement Agency. Despite freedom of information requests and a commitment by Vernon Coaker in the other place to share the results, that review has not been disclosed. Is the Minister able to let us see it and will he place a copy in the Library? The policing of the Heathrow third runway protests also provoked issues but, at this time of night, I shall not go into the individual difficulties that arose. However, it would be reasonable to make the point that the police are there to facilitate peaceful protest.

Since the introduction of the relevant legislation, one problem that has arisen is that the definition of "disorder" has gradually become subverted until it is taken to be referring to any form of protest. One minor triumph is that, under the Constitutional Renewal Bill, the clauses in the Serious Organised Crime and Police Act 2005—my Amendment 155 refers to these clauses—that forbid demonstrations in the vicinity of Parliament unless they have prior permission from the police are finally repealed. We have been pressing for that from these Benches for a long time. I introduced a Private Member's Bill to try to do that. I welcome that commitment in the Constitutional Renewal Bill, which I hope will finally see the light of day in this House, too.

These amendments are extremely important. With respect to the time of night, I will ask the Minister just a few questions. Does he accept that there is a place for legislation to lay out more clearly the fundamental rights when it comes to peaceful protest? Does he accept that it is unacceptable for the police to prevent or disrupt legitimate protest through tactics such as pre-emptive arrest? Does he accept that the seizure of personal property from demonstrators is not acceptable as a matter of course? He will have seen the Kingsnorth video and will know why that, in particular, concerns me. I appreciate that a policing White Paper is coming, which will cover a lot of these issues, but in order to focus our minds on the areas that will need legislative reform it would be very useful to have this short debate. I beg to move.

Photo of Baroness Neville-Jones Baroness Neville-Jones Shadow Security Minister, Home Affairs

My Lords, from the point of view of these Benches, the noble Baroness's amendments are something of a mixed bag. There is no question but that we support Amendment 153, which specifies that the presence of three or more people together as part of a peaceful demonstration will not, in itself, be taken as conduct that threatens unlawful violence.

However, we are a bit concerned about other amendments, which seem less well thought through, such as those that would repeal the offence of demonstrating without authorisation in the vicinity of Parliament. That is fine in relation to a small protest, but we have to think about larger protests, which certainly do occur. Yet further amendments concern me, such as those that would repeal the offence of trespassing on designated sites, such as nuclear sites. This is a difficult issue, but I must confess that I would have more sympathy with taking the route of reviewing the list of designated sites.

I am also concerned with those amendments that affect the PACE codes and the use of police powers for the purposes of managing protests. They come very close to dictating, if not interfering with, police tactics. That is a sensitive and difficult issue, which requires careful consideration.

I have a great deal of sympathy with what the noble Baroness, Lady Miller, is trying to achieve in her amendments and I accept the basic principle that police doctrine must remain focused on allowing protests to happen peacefully. However, I am concerned that these amendments are not really the vehicle for getting the right balance, particularly in view of the amount of time that we have available.

Photo of Lord Brett Lord Brett Government Whip, Parliamentary Under-Secretary of State, Home Office, Government Whip, Parliamentary Under-Secretary (Home Office) (Identity) (also Lord in Waiting)

I start by expressing sympathy for the contributions of the noble Baronesses both in terms of the intention to try to address the concern that we should not prevent, hinder or criminalise peaceful protest, but also I recognise from the Opposition Benches the wisdom of looking carefully at the whole scene rather than just one or two aspects of it. On the question of the Kingsnorth power station incident, which to put it at its mildest none of us thinks is a good training video for how policing should take place, I understand that the report into that was put on the Kent police website a month or two ago. The more pertinent question from the noble Baroness, Lady Miller, is whether we see legislation as the route.

It is vital that we have a common standard in the policing of protests, particularly as we are going to see a series of national events in the near future, with perhaps the Olympics as the test of our ability to handle large numbers of people in confined areas. Certainly the G20, the Kingsnorth climate camp and other recent protests have shown that not everything we want to see actually happens. As the noble Baroness pointed out in moving her amendment, these events have been the subject of numerous reviews by the Home Affairs Committee, Her Majesty's Inspectorate of Constabulary, the Joint Committee on Human Rights and the Association of Chief Police Officers, all of which we welcome. While we take the concerns raised about public order policing very seriously and are committed to working with the police and public to ensure that recommendations coming out of recent reviews are acted upon, it is important to recognise, as the noble Baroness, Lady Neville-Jones, mentioned, that the police manage thousands of peaceful demonstrations, both large and small, every year.

The noble Baroness, Lady Miller, mentioned that we shall be setting out our proposals in the policing White Paper, which is due to be published next month. This in turn will be informed by the recommendations and lessons learnt emanating from the work of HMIC's review into policing and protest. However, the direct answer to the noble Baroness does not necessarily lie in further changes to legislation, and at this stage I have to say that I do not accept that need. It is not a question of more legislation because what is clear is that those protests were not policed in an appropriate manner, so it is a question of focusing on the key principles that need to underpin the policing of protest and ensuring that these are reflected in police guidance and training. We also need to ensure that police forces comply with revised guidance and training which will help to ensure that the concerns we all have about issues such as officer identification, use of stop and search powers and proportionate use of force are properly addressed.

The individual amendments tabled by the noble Baroness are, in our view, unworkable and would create confusion. For instance, Amendment 153 purports to exempt three or more people who take part in a peaceful demonstration or engage in an act of non-violent civil disobedience from the offence of violent disorder set out in Section 2 of the Public Order Act. While I understand the concern that peaceful protestors should not be criminalised for taking part in demonstrations, I do not believe that such exemptions are necessary or enforceable. They would introduce confusion to the existing tests set out in the Public Order Act, risk creating confusion for the police, protestors and courts alike, and make the various provisions of the Public Order Act framework anomalous. Equally, Amendment 156, which would place provisions directly into the PACE code of practice in respect of how stop and search powers might be exercised in public order situations, risks creating uncertainty in officers' minds when policing a public order situation. Again, we feel these are issues best addressed in guidance and training rather than in a code of practice or, indeed, in legislation.

Amendment 159 also causes confusion. It states that powers and offences set out in subsection (2)(a) to (i) must not be used for the purposes of preventing, hindering or obstructing a peaceful protest. I think that is fine, but it then makes an exception where a police officer has reasonable cause to consider that there is a "high risk of serious violence". The "high risk of serious violence" test represents a significant shift from the wording of some of the existing powers as agreed by Parliament. It would create considerable confusion to the police, courts and protestors as it would mean that existing case law, guidance and understanding could no longer be applied.

I have a long, erudite and beautifully phrased series of arguments but I hope that in the brief argument I have made I have shown that the Government are intent on moving forward. It is not the legislation that is the problem; there are individual police officers—and maybe some groups of officers—who have not shown the required commitment. Training and guidance for those officers is probably needed more than increased legislation.

Photo of Baroness Miller of Chilthorne Domer Baroness Miller of Chilthorne Domer Spokesperson for the Home Office 10:15 pm, 20th October 2009

My Lords, I thank the noble Baroness, Lady Neville-Jones, and the Minister for their contributions to this short debate. I, too, had about 12 pages of notes on this group alone but, in the interests of time, I condensed them into about four sentences. We share in common the fact that there are issues here and, as the various reports come to be debated in your Lordships' House, they will merit serious scrutiny. We need to consider how guidance is interpreted and how we move forward into a healthier recognition that protests need to take place in a democracy. Some matters have been demonstrated by HMIC to be unhelpful—for example, a bad communications gap can cause things to go wrong between protestors and the police, as can physical issues such as the early use of shields and so on—and, as the Minister knows, the practice of kettling is being examined.

There is a great deal to debate and I hope that we will have a further opportunity to look in greater depth at whether we need some legislative tweaks. I do not fully accept that our legislation has not played a part in leading us into a situation where some protests were policed as though they were criminal activities. I accept the Minister's comment that most of the time the police are very good at policing demonstrations well and responsibly and with great good humour, and demonstrators appreciate this. However, we need to keep our eye on the situation for the sake of the whole democratic process. In the mean time, I beg leave to withdraw the amendment.

Amendment 153 withdrawn.

Amendments 154 to 156 not moved.

Amendment 157

Moved by Baroness Miller of Chilthorne Domer

157: After Clause 108, insert the following new Clause—

"Stop and search areas

(1) Section 44 of the Terrorism Act 2000 (c. 11) is amended as follows.

(2) After subsection (5A) insert—

"(5B) Following the notification and confirmation of an authorisation under this section, the Secretary of State will update and publish a list of each area in which searches have been authorised and the geographical extent and the time period for which each authorisation will apply.""

Photo of Baroness Miller of Chilthorne Domer Baroness Miller of Chilthorne Domer Spokesperson for the Home Office

My Lords, this group of three amendments concerns particularly the terrorism legislation that has a bearing on the various powers of the police. Amendment 157 relates to the fact that, at the moment, no one can know where stop and search powers can be exercised and so, if you are stopped and searched, you have no idea of whether or not it is reasonable. In a Written Answer, the Minister's colleague, the noble Lord, Lord West of Spithead, said:

"The Home Office does not make the fact of the existence of an authorisation in any particular area public while it is running or for how long a particular force have an authorisation".—[Hansard, 20/5/09; col. WA 339.]

This creates a difficulty. Of course terrorism legislation is vital, but so is the issue of where people are stopped and searched. Again, I am up against the clock in expanding the argument, but the issue merits greater debate.

Amendment 159 highlights some of the powers that have been used disproportionately by police to curtail the activities of protesters and journalists at recent demonstrations. These were intended to be used with regard to terrorism issues, but the NUJ has written to the new Information Commissioner, Christopher Graham, to make a complaint and express serious concerns about the manner in which press card-carrying journalists are being monitored by the police, specifically by the Met's forward intelligence team. The NUJ's general secretary has written to the Home Office to say that it believes that certain journalists are the target of police surveillance because they speak to people who the police consider to be anarchists. All these sorts of situations are highly threatening in a democratic society, and we need to examine them in greater depth.

Amendment 159E explores this matter by proposing the omission of Section 58A of the Terrorism Act, which was added by the Counter-Terrorism Act 2008 and makes it an offence to elicit, publish or communicate information about a constable. That is a pretty wide and sweeping power, and while the Minister may not be ready to repeal it this evening, he might at least undertake to monitor how it is working.

There are a large number of issues here, and it is important that we keep our eye on them. We must ensure that our terrorism legislation is not inhibiting the operation of a proper democracy. I beg to move.

Photo of Baroness Neville-Jones Baroness Neville-Jones Shadow Security Minister, Home Affairs

My Lords, despite the lateness of the hour, I rise to support the amendments. Under this Government, powers available under terrorism legislation have been used for reasons entirely unrelated to those for which they were put on the statute book; an inappropriate use of stop and search is one of the most obvious examples. This is the surest way to lose public support and damage community relations.

Earlier this year the statutory reviewer of terrorism legislation, the noble Lord, Lord Carlile, rightly condemned this. He said that the use of Section 44 powers was the single issue giving rise to,

"most assertions of excessive and disproportionate police action", that it was,

"still far too much deployed in England and Wales", and that many,

"examples of poor and unnecessary use of Section 44 abound".

These comments need to be taken seriously.

The Government need to make sure that antiterrorism powers are used proportionately and only for terrorism-related purposes. That, in our view, is what the noble Baroness's Amendments 157 and 158 seek to achieve, and we support them. Not least, with the amount of terrorism legislation the Government have added to the statute book, the amendments would provide greater clarity not only to the public but to the police and other practitioners who are tasked with tackling the terrorist threat.

The noble Baroness also mentioned the question of eliciting information in relation to constables, with regard to Amendment 159E. Presumably, that is to stop this legislation being used as a defence for a police officer not identifying himself or herself when undertaking order or policing duties. When the offence of eliciting information was debated during the passage of the Counter-Terrorism Bill, an offence that also includes members of the Armed Forces, we on these Benches voiced cautious support for the powers lest they be used disproportionately. That is our concern. It would be helpful if the Minister would update your Lordships' House on how the powers have been used to date.

Photo of Lord Brett Lord Brett Government Whip, Parliamentary Under-Secretary of State, Home Office, Government Whip, Parliamentary Under-Secretary (Home Office) (Identity) (also Lord in Waiting)

My Lords, I share noble Lords' view that these are important issues. The point of agreement between the opposition Front Bench and ourselves is that these powers should be both appropriate and proportionately used, and must be used only for anti-terrorism purposes. The National Policing Improvement Agency published revised guidelines in November 2008.

I am clear that I cannot do justice to the debate, because the noble Baroness has not been able to enunciate many of the arguments that she would have put and I have a considerable brief. That brief confirms what the noble Baroness said—that the Home Office does not make the existence of an authorisation in a particular area a matter of public knowledge while it is running. As with all these things, it is a matter of balance. The need for greater public transparency would have to be balanced against how great the continued threat was perceived to be. Jonathan Evans, the director-general of the Security Service, said recently that:

"Al-Qaeda and other international terrorist networks remain a very serious threat", and that there is enough intelligence to show,

"an intent to mount an attack", which could "happen at any stage". The noble and learned Lord, Lord Bingham, in the House of Lords judgment in R (Gillan) in March 2006 stated:

"The Act and the Code do not require the fact or the details of any authorisation to be publicised".

It is that question of balance. The best that I can do in relation to the detailed argument is to write to the noble Baroness, not because I have doubts about the arguments to be put but because I would not be able to do justice to them this evening.

Amendment 159E raised the question of journalists. It is not the Government's intention that counterterrorism powers be used to stop people taking photographs or to impair journalists in their going about their normal business. I can amplify that too in writing, and I have no doubt that it will be debated at another stage.

Photo of Baroness Miller of Chilthorne Domer Baroness Miller of Chilthorne Domer Spokesperson for the Home Office

My Lords, I am most grateful to the noble Baroness, Lady Neville-Jones, for her support for the amendments. I would be grateful if the Minister could expand on those issues in writing and place a copy of the letter in the Library. It would be welcomed also by the NUJ, because any clarity that can be given to this matter would be very helpful. I beg leave to withdraw the amendment.

Amendment 157 withdrawn.

Amendments 158 to 159B not moved.

Amendment 159C

Moved by Baroness Miller of Chilthorne Domer

159C: After Clause 108, insert the following new Clause—

"Duty of identification

(1) When on duty and in uniform a police officer shall—

(a) clearly display his or her identification numerals; and

(b) when requested to do so by a member of the public, clearly state his or her name or identification number.

(2) Failure to comply with subsection (1)(a) and (b) shall constitute an offence.

(3) An offence under this section is liable—

(a) on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum, or to both; or

(b) on conviction on indictment, to imprisonment for a term not exceeding five years or to a fine, or to both."

Photo of Baroness Miller of Chilthorne Domer Baroness Miller of Chilthorne Domer Spokesperson for the Home Office

This is a very practical amendment which the Government might consider putting into statute. It concerns the duty of identification and arises from the difficulties that have arisen from police in uniform not being able to be clearly identified, as they should be. That is not a statutory requirement; it is only in guidance.

This issue was highlighted in September. After members of the Metropolitan Police Authority had criticised police chiefs for not formally disciplining officers for not wearing their ID numbers, Sir Paul Stephenson made a pronouncement on it, saying that all uniformed officers were of course expected to wear their ID. However, the very next day, it was noticed that some officers policing the Tamil demonstrations had no ID. The guidance therefore needs statutory backing, which would make the matter very clear. While the amendment may not be perfect, it is simply drafted and would give some power to the elbow of police chiefs who are finding the requirement difficult to enforce. It is a very important issue, as I am sure the Minister accepts. I beg to move.

Photo of Baroness Neville-Jones Baroness Neville-Jones Shadow Security Minister, Home Affairs

It would be nice to think that the police would not need to have it set in statute that they need to wear their identification. Will the Minister clarify the precise status of the requirement to display ID? There clearly has been a problem and there appears to be a continuing problem. It would be helpful to know two things: what the precise status of the requirement is and what steps the police have taken since this has come to public attention to ensure that there is no repeat of what must be a disciplinary offence. Is there improved training or clearer guidance on the matter? We are certainly in strong sympathy with the amendment.

Photo of Lord Brett Lord Brett Government Whip, Parliamentary Under-Secretary of State, Home Office, Government Whip, Parliamentary Under-Secretary (Home Office) (Identity) (also Lord in Waiting) 10:30 pm, 20th October 2009

I hope that in responding to the points made by the noble Baroness, Lady Neville-Jones, I shall cover the points made by the noble Baroness, Lady Miller. The HMIC report, Adapting to Protest, which was published in the summer following the G20 protests recommended that the police should ensure officers wear numerals or other clear identification at all times during public order operations and deal with individual officer non-compliance swiftly and robustly. This is a position that the Government fully endorse. I am aware that the Joint Committee on Human Rights in its follow-up report, Demonstrating Respect for Rights, has recommended that it should be a legal requirement for police officers to wear identification numbers while on duty or to identify themselves when asked.

Police officers of any rank are subject to the standards of professional behaviour set out in the Police (Conduct) Regulations, which were approved by this House and the other place in 2008. These standards reflect the expectations that the police service and the public have of how police officers should behave. Any breach of those standards may lead to disciplinary action being taken. An officer deliberately removing his or her identification to avoid being held accountable is likely to be in breach of the standards expected and therefore liable to be dealt with under the disciplinary arrangements. While I am not convinced that failure to display identification numerals should be a criminal offence, we can look at whether the display of identification numerals should be made more explicit in legislation. Our position on this will be informed by the further review being conducted by HMIC.

In the light of this encouraging response, I hope that the noble Baroness will consider her amendment unnecessary.

Photo of Baroness Miller of Chilthorne Domer Baroness Miller of Chilthorne Domer Spokesperson for the Home Office

That is, indeed, a very helpful reply from the Minister. He has clearly highlighted that, on the one hand, there is an expectation and something set down as a standard of behaviour—the breach could be subject to discipline—and, on the other hand, there could be a legal requirement, which the Human Rights Committee suggested there should be, so there are two different paths to be followed here. It will be interesting to see whether the Government decide that the legal requirement would give the public more confidence. We think that it would. However, in the mean time I shall await developments and I beg leave to withdraw the amendment.

Amendment 159C withdrawn.

Amendment 159D

Moved by Baroness Miller of Chilthorne Domer

159D: After Clause 108, insert the following new Clause—

"Independent Police Complaints Commission strategic oversight

(1) The Police Reform Act 2002 (c. 30) is amended as follows.

(2) After section 10(2)(a) (general functions of the Commission) insert—

"(aa) the handling of complaints made about police strategy or tactics;"."

Photo of Baroness Miller of Chilthorne Domer Baroness Miller of Chilthorne Domer Spokesperson for the Home Office

My Lords, this amendment deals with the ability of the Independent Police Complaints Commission to deal with complaints. There is frustration that it can deal only with individual complaints and not a more general complaint about police strategy or tactics. This is clearly not the moment of the evening to go into all the examples that I could give here, but does the Minister think that it would improve the IPCC's ability to deal with these issues if its remit was widened as I suggest in this amendment? I beg to move.

Photo of Baroness Neville-Jones Baroness Neville-Jones Shadow Security Minister, Home Affairs

My Lords, I have sympathy with this amendment. Could the Minister clarify what the remit of the IPCC is? I went on to the website to have a look and came away not entirely clear about it, as it did not seem to be a very clear statement of the remit. It would make a great deal of sense for the IPCC to include complaints about police strategy and tactics in its remit, if they are not included in the remit of any other body—and, frankly, I cannot think of a more appropriate body for it to be in. I am not sure that it needs to be laid down in statute, but it would be helpful to know what the practical position is and whether there is a body like the IPCC, if not the IPCC itself, that has that issue in its remit.

Photo of Lord Brett Lord Brett Government Whip, Parliamentary Under-Secretary of State, Home Office, Government Whip, Parliamentary Under-Secretary (Home Office) (Identity) (also Lord in Waiting)

My Lords, the IPCC was set up in 2004 to undertake a dual role of ensuring the effective and efficient operation of the whole of the police complaints system for England and Wales, and to raise public confidence in that system. It was established by the Police Reform Act 2002, Section 10 of which sets out its general functions. Those include securing the maintenance of an effective system for handling complaints against the police in England and Wales.

The Act gives the IPCC the necessary powers to investigate complaints by the public against the conduct of any person serving with the police, and the ability to carry out its own independent investigations into the most serious cases. For example, the IPCC is undertaking a number of independent investigations following complaints about police conduct during the recent G20 demonstrations. The Act purposely does not extend the remit of the IPCC to deal with complaints relating to matters of direction and control, which would of course be the effect of the proposed amendment. However, the powers given to the IPCC include that to make recommendations following an investigation into a complaint, and such recommendations could extend to suggesting a review of strategy or tactics.

I understand the concern that the police should be properly accountable, not only for the conduct of individual officers but more generally. Chief police officers are of course accountable to police authorities. The police are also subject to the law of the land, and their actions can be scrutinised by the courts. The proper body for providing oversight of the more general strategic and operational nature of policing tactics is, clearly, Her Majesty's Inspectorate of Constabulary. As the,

"fierce advocate and guarantor of the public interest", it has responsibility for monitoring the performance of police forces and authorities. The inspectorate is best placed to deal with issues regarding operational and strategic policing, which are not tackled in the first instance by the chief constable of the police authority concerned.

HMIC is about to publish a full and comprehensive review into policing and protest, and we will work with the police service to ensure that its recommendations and conclusions are properly assessed and acted upon. That is the correct way forward, and in the light of it, I hope that this report is helpful and that the noble Baroness will find it unnecessary to leave her amendment on the Marshalled List. I believe that the accounting mechanisms we have are, with strict application, fit for purpose.

Photo of Baroness Miller of Chilthorne Domer Baroness Miller of Chilthorne Domer Spokesperson for the Home Office

My Lords, I welcome the support of the Conservative Front Bench for this amendment. Despite the Minister's reply, there is an issue here because the public clearly feel that the Independent Police Complaints Commission is the body to which they make complaints. Of the 276 complaints made after the G20 protest, 78 involved tactics—that is, virtually a quarter. All those people, or a quarter of the public who complained, were told, "Well, sorry, but the IPCC can't deal with it". It will undermine public confidence in that body if that reply comes back to so many of them.

I hear what the Minister says about it being the job of the HIMC. Nevertheless, the IPCC was set up—admirably—and now has public confidence. The public are complaining to them, and it would be a pity if that was undermined in the way that I suggest. It would be worth coming back to explore this issue further, probably not on Report for this Bill. However, because the Police Reform Act 2002 defined what the IPCC could do very narrowly, it is time to review that. In the mean time, I beg leave to withdraw the amendment.

Amendment 159D withdrawn.

Amendment 159E not moved.

Clause 109 agreed.

Amendment 159EA

Moved by Lord Bradshaw

159EA: After Clause 109, insert the following new Clause—

"Policing of transport interchanges

Where a transport interchange includes a railway station which is within the jurisdiction of the British Transport Police, that jurisdiction may extend beyond the station boundary to include transport links such as station bus stops, taxi ranks, cycle parking and car parking in the vicinity of the station resulting in joint policing of those transport interchanges."

Photo of Lord Bradshaw Lord Bradshaw Spokesperson for Transport

My Lords, I will not detain the Committee for long but this is a very important amendment. The fact that we are discussing it so late in the night on the fifth Committee day is no fault of mine.

I am very glad that the noble Lord, Lord Faulkner, will reply to the amendment because, all the time that I have known him, he has been a lusty champion of the British Transport Police. The word "integration" must have dropped from his lips so often that they have made a big pile on the floor.

This evening I attended a meeting with the chairman of ACPO, who stressed the importance of police forces co-operating with one another and of breaking down barriers between them. It was fortuitous that I attended that meeting but that is exactly what the amendment is driving at. I have no doubt that we will be told that the British Transport Police can pursue somebody who has stolen somebody's handbag, or that they may pursue somebody under the terrorism powers which we have just discussed. I regularly use Reading station, which has a police presence. However, outside, there is a very nasty car park, lots of unguarded bus stops and unattended cycle racks. I simply ask the Government to consider telling chief constables, or at least suggesting to them, that they should enter into agreements with the British Transport Police to have joint jurisdiction over transport interchanges. I do not believe that the words "interchange" or "integrated transport" mean anything unless the passenger, the customer—or whatever we call him—feels safe around interchanges, because it is there where most offences occur. I beg to move.

Photo of Lord Berkeley Lord Berkeley Labour

My Lords, I support the amendment. Earlier this evening, we discussed similar issues. I was interested in one of the reasons that my noble friend Lord Faulkner gave for resisting the idea that airport operators should be able to tender for policing services either among adjacent police forces or the British Transport Police. One of the arguments he made was that airports are spread out. It occurred to me that railways are fairly spread out too. They go from the north of Scotland to Cornwall covering most places in between. There is also a need for specialist knowledge, which the British Transport Police clearly have, and they could easily have similar specialist knowledge for policing airports. I began to wonder why we call them the British Transport Police as they do not police the roads and are not even allowed to bid for policing airports. However, they do police the railways, so why not call them the British Railways Police, which I believe they were called long before I had any involvement in this matter?

The noble Lord, Lord Bradshaw, gave a couple of examples. I think of the new station that is being built at Birmingham New Street at vast expense. I have read that £600 million of taxpayers' and Network Rail's money is going into that. I am sure that it will be another glorified shopping centre on top of the existing station with lots of platforms. I think also of the new Crossrail stations at Bond Street and Tottenham Court Road. Lorries are about to start trundling around London carrying spoil to build them. Where is the boundary between the station and the roads and shops above? Are agreements really needed between these different police forces before they can police these areas properly?

When I hear the responses of my noble friend the Minister, I begin to think that there must be more to these issues than the Association of Chief Police Officers defending their patch as if it is a kind of gold mine against incursions. We should be co-ordinating these matters. I still believe that letting airports to go out to competitive tender to allow the BTP to police a bit more transport would be highly advantageous.

Photo of Lord Skelmersdale Lord Skelmersdale - Shadow Minister, Shadow Minister 10:45 pm, 20th October 2009

My Lords, I shall not return to the subject of airports, on which there has been some debate. However, during the speech of the noble Lord, Lord Bradshaw, I was reminded of my local station in Taunton, where there is what I still regard as a British Rail car park on one side and a council car park on the other. If, for example, there is a bag snatching in one or the other, it should be possible—I hope that the Minister will confirm that it is—for either the British Transport Police or a constable in uniform to chase the handbag snatcher from one to the other. That is what this amendment is about—although it does not say that and seems rather one-sided. It is probably intended to do exactly what I have suggested and I hope that on that basis the Minister will confirm that it is unnecessary.

Photo of Lord Faulkner of Worcester Lord Faulkner of Worcester Government Whip, Government Whip

My Lords, I should respond to the charge levelled against me by the noble Lord, Lord Bradshaw, that I have been an admirer and supporter of the British Transport Police over many years. To that the only response can be, "Guilty as charged". I am a huge supporter of the British Transport Police and have taken part in a number of debates in this Chamber where I have defended it—particularly when there have been outside forces at work attempting either to diminish its role or to abolish it altogether. The fact that the BTP is a highly regarded force and that its recently retired chief constable is regarded as an icon of policing is a measure of how far the force has gone and how far public and parliamentary opinion has moved in its favour. I am sure that it will be gratified that a number of your Lordships are willing to stay away from their beds at this late hour to sing its praises and to consider the interesting amendment tabled by the noble Lord, Lord Bradshaw.

The situation is complicated and I shall try to be as brief as I can, because I am conscious that the hour is late. The BTP is the specialist police force for the railway. Its constables have much the same powers as constables of other forces. The difference is that the BTP's jurisdiction is limited, broadly, to the railway. I use the word "broadly" with some care. Under the Railways and Transport Safety Act 2003, a BTP officer has jurisdiction,

"on track ... on network ... in a station ... in a light maintenance depot ... on other land used for purposes of or in relation to a railway ... on other land in which a person who provides railway services has a freehold or leasehold interest, and ... throughout Great Britain for a purpose connected to a railway or to anything occurring on or in relation to a railway".

This means that the BTP's powers already extend to many of the places that would be covered by the amendment. Station car parks, bus stops and taxi ranks will often be on land in which a railway operator has a freehold or leasehold interest. Even where that is not the case, the BTP has jurisdiction elsewhere where it is satisfied that it is using its powers for a purpose connected to or in relation to a railway. The car park in Taunton mentioned by the noble Lord, Lord Skelmersdale, would certainly be in that category.

Further powers are available to the BTP under Section 100 of the Anti-terrorism, Crime and Security Act 2001. Section 100(2) gives BTP constables the same powers as constables of other forces beyond the railway boundary. Unlike those in Section 100(1), these powers do not rely on the BTP receiving a specific request from another force to assist in an incident. The powers are not limited to dealing with terrorist incidents, but they are limited in other ways. The BTP officer must have a reasonable suspicion that a person has committed, or is about to commit, an offence, or that the exercise of the powers is necessary to save life or prevent injury and that securing assistance from the local force would result in serious prejudice to the incident in question. The officer must also be in uniform or have documentary evidence that he is a member of the force.

I now believe that the existing legislation is wide-ranging enough to ensure that the BTP is not unduly constrained in carrying out its duties. To take a practical example, an officer may see a mugging take place on a train—possibly on a train to Birmingham International station. If the culprit then gets off at Birmingham International and makes his way to the airport, the effect of Section 31 is that the officer has the power to pursue and arrest him whether or not he is still on railway property by the time the officer catches up with him. This is not to say that there are no limits to the BTP's jurisdiction, but I believe that, where there are such limits, they are well understood by BTP officers. My concern with the amendment is that, far from clarifying matters, it would introduce greater uncertainty. We all know a bus stop or a taxi rank when we see one but determining whether a transport link is or is not,

"in the vicinity of the station", is much more difficult, and determining precisely how far the legal boundary extends is more difficult still for a police officer on the ground.

The noble Lord, Lord Bradshaw, referred to Reading station. Indeed, he mentioned it to me a week ago when we were considering this amendment and I made some inquiries about the BTP's powers to police the car park, the bus stop areas and the taxi rank at Reading. The BTP reports that it polices those parts of the station and that it does so under the existing powers in Section 31 covering land held by a rail operator and land used in relation to a railway. Whether or not the noble Lord happens to see BTP officers when he is touring the car park or the bus stops is not a matter for me; it is a matter for the operational commander. However, they certainly have the power to patrol those areas, so, with great respect to the noble Lord, that is not the best example that he could have used.

If we had more time, I would take a while to pay my own tribute to the work of the force. It has been around since 1825 and the very earliest days of the railway. I say only that the force has a very long record of service to the railway and its passengers, and, as I said at the beginning of my remarks, the progress that it has made has been remarkable and a source of great pride to the former chief constable, Sir Ian Johnston.

I hope that it will be clear from what I have said that not only I but the Government as a whole are very strong supporters of the BTP and believe that they have a crucial part to play in helping to achieve the targets that we are setting for increasing rail use by passengers and freight, as well as meeting the objectives set out in this legislation. I hope that the noble Lord will have been sufficiently reassured by what I have said to be prepared to withdraw his amendment, even if, as I suspect, he is not entirely convinced by it. However, I am sure that we will have an opportunity to come back to this matter at some stage in the future.

Photo of Lord Bradshaw Lord Bradshaw Spokesperson for Transport

The noble Lord is right: I am not convinced by it because I believe that this is a peculiar piece of legislation. To turn to the point made by the noble Lord, Lord Skelmersdale, if the bag snatcher snatches the bag in the railway car park, the British Transport Police will pursue him. If he snatches the bag in the public car park, unless he obviously runs on to the station saying, "I've just snatched a bag", the British Transport Police will be out of the equation altogether. The jurisdiction is wrong; it should relate to what the public want and what the transport user wants, not to what the bureaucracy or the chief constable wants. I shall come back to this but, for now, I beg leave to withdraw the amendment.

Amendment 159EA withdrawn.

Clauses 110 and 111 agreed.

Amendment 159F

Moved by Lord Brett

159F: After Clause 111, insert the following new Clause—

"Removal of limitation on warrants under Misuse of Drugs Act 1971

(1) Section 23 of the Misuse of Drugs Act 1971 (c. 38) (powers to search and obtain evidence) is amended as follows.

(2) In subsection (3) omit "acting for the police area in which the premises are situated".

(3) Omit subsection (5)."

Photo of Lord Brett Lord Brett Government Whip, Parliamentary Under-Secretary of State, Home Office, Government Whip, Parliamentary Under-Secretary (Home Office) (Identity) (also Lord in Waiting)

This amendment seeks to amend Section 23(3) of the Misuse of Drugs Act 1971 and the amendments in this group are clarifying amendments. The Misuse of Drugs Act 1971 is the legislative vehicle by which we control dangerous or otherwise harmful drugs.

Section 23(3) authorises a justice of the peace, or in Scotland a justice of the peace, a magistrate or sheriff, to grant a warrant to enter and search premises to any constable acting for the police area if they are satisfied that there are reasonable grounds for suspecting that a person is in unlawful possession of controlled drugs on the premises, or documents relating to an unlawful transaction in respect of such drugs are on the premises. Those with the powers of a constable, who are working for law enforcement agencies with national jurisdiction such as the Scottish Crime and Drugs Enforcement Agency, and the Serious Organised Crime Agency, do not act under the direct control of a chief constable in a particular police area.

The amendment seeks to remove the phrase,

"acting for the police area in which the premises are situated", from Section 23(3) of the 1971 Act as we wish to make it absolutely clear that people working for law enforcement agencies with national jurisdiction are nevertheless entitled to obtain a search warrant under Section 23(3) where the court is satisfied that the statutory criteria are met. This is important to ensure that these agencies can tackle serious organised crime associated with drug trafficking.

The omission of these words will also make the position in England, Wales and Scotland consistent with that in Northern Ireland, where these words have already been omitted under Section 23(5) of the 1971 Act. This amendment is primarily a clarifying one. I beg to move.

Photo of Lord Brett Lord Brett Government Whip, Parliamentary Under-Secretary of State, Home Office, Government Whip, Parliamentary Under-Secretary (Home Office) (Identity) (also Lord in Waiting)

Essentially, at the point at which this legislation was going to the other House, representation was received from the SCDEA seeking that this be resolved and we are pleased to bring this forward. The Scottish Crime and Drug Enforcement Agency, supported by the Crown Office in Scotland, and the Serious Organised Crime Agency both supported these proposed amendments because they will ensure that our activities in connection with drugs and other offences in Scotland are more effective.

Photo of Lord Skelmersdale Lord Skelmersdale - Shadow Minister, Shadow Minister

Thank you.

Amendment 159F agreed.

Amendment 159G

Moved by Lord Lester of Herne Hill

159G: After Clause 111, insert the following new Clause—

"Exemption from civil proceedings for trespass brought by offender

(1) Section 329 of the Criminal Justice Act 2003 (c. 44) (criminal proceedings for trespass to the person brought by offender) is amended as follows.

(2) After subsection (1) insert—

"(1A) This section does not apply where the defendant was at the material time a constable.""

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Spokesperson for Women and Equality

So late is the hour that I shall draw attention to the fact that the Minister seems to think that we are discussing something called constitutional renewal, which is not the case.

The reason I am not in my bed but am keeping everyone up is because of the important issue raised by the Court of Appeal in the Adorian case. I am sorry that the noble Lord, Lord Hunt of Wirral, and the noble and learned Baroness, Lady Scotland, are not here, as they were the principal players involved in us being where we are now.

The amendment seeks to amend Section 329 of the Criminal Justice Act 2003 to remedy a classic example of unintended consequences, which were brought to my attention as a result of the recent decision of the Court of Appeal in the case of Adorian v The Commissioner of Police of the Metropolis. It was a strong Court of Appeal with Lord Justice Sedley, Lord Justice Keene and Lady Justice Smith.

At this stage, this amendment is probing, but I promise to return to it at the next stage. Section 329 was enacted in response to the case of Tony Martin, the Norfolk farmer who, in 1999, shot two burglars who had entered his house. In 2003, the surviving burglar sued Martin for damages relating to his injuries, although he later dropped the case. During the passage of the Criminal Justice Bill, the noble Lord, Lord Hunt of Wirral, moved an amendment entitled,

"Excluding civil liability of victims of crime".

Following the debate, he withdrew his amendment and the Government agreed to table their own amendment along the same lines. That resulted in Section 329 which provides a defence to a civil suit for trespass to the person brought by a convicted person, where, during the commission of that crime the victim or a third party has taken action which he believed necessary to prevent the crime or to protect themselves, or another person or property. The defendant must have believed that the claimant was about to commit an offence, was in the course of committing an offence, or had committed an offence and the action must not have been grossly disproportionate. Trespass to the person refers to assault, battery or false imprisonment.

Although the provision clearly applies to third parties who may have intervened to protect the victim or deter the criminal, at no stage in the parliamentary debate were actions against the police discussed. Since this provision came into force in January 2003, it has been used only by police defendants seeking to defend themselves against civil actions.

In the case of Adorian, he had been convicted of obstructing police officers in the execution of their duty. He sought damages from the police for trespass of the person and negligence in relation to the injuries suffered during the course of his arrest which were,

"so severe that the force medical examiner concluded that he was unfit to be detained".

The police sought to strike out the action using Section 329.

Lord Justice Sedley gave the judgment for the three judges of the Court of Appeal. One of the things he said was that the court could not fail to notice,

"that this section has nothing on the face of it to do with policing. In what one can call the Tony Martin situation—a sudden encounter with a crime—it gives the individual a defence of honest, even if unreasonable, belief in the need for his or her act; and it forfeits the defence only if the act was grossly disproportionate. There is nothing on the face of the section or in its shoulder-note which manifests an intention to afford the police a novel protection from claims by offenders for objectively unreasonable or unnecessarily violent arrests".

Lord Justice Sedley continued:

"The section nevertheless inexorably covers police officers as well as civilians. Indeed, so far as counsel have been able to tell us, since it was brought into force ... it is only police defendants who have invoked it. The consequences should not go unnoticed. In place of the principle painstakingly established in the course of two centuries and more, and fundamental to the civil rights enjoyed by the people of this country—that an arrest must be objectively justified and that no more force may be used in effecting it than is reasonably necessary—the section gives immunity from civil suits, not confined to those involving personal injury, to constables who make arrests on entirely unreasonable grounds, so long as they are not acting in bad faith, and accords them impunity for using all but grossly disproportionate force in so doing".

The Court of Appeal described the particular facts of the case, explaining that the class of injury was so severe that it was,

"associated with head-on car crashes or falls from a significant height. But the claimant had been walking at the moment of arrest, and there is at present no evidence suggesting either that he has brittle bones or that anything happened following his arrest which is capable of explaining the injuries".

Towards the end of the Court of Appeal's judgment, on the invitation of counsel, it then referred in some detail to what happened in this House. It explained in paragraph 36 how the noble Lord, Lord Hunt of Wirral, had sought to insert in the Bill an original provision as I have described because of concerns about the Tony Martin case by protecting private individuals from lawsuits arising out of their endeavours to confront or apprehend criminals. The Court of Appeal referred to the fact that the noble Lord, Lord Hunt of Wirral, withdrew the amendment when the noble Lord, Lord Filkin, undertook that the Government would table their own amendment, directed to the same end, but clearer and more focused and, as Lord Justice Sedley said, perhaps more relevantly one,

"that does not have any damaging effects on the wider law".

Then the court referred to the noble and learned Baroness, Lady Scotland, introducing her own amendment, and it quotes what she said. Then the Court of Appeal observed that:

"Conspicuously, the minister did not take the opportunity, had this been the intent, to say that the clause was meant to create an absolute bar to any action ... Nor did she mention actions against the police. Had she done so, one might have expected considerable constitutional concern about a new defence to assault allegedly committed in the course of an arrest which abandoned the standard of objective reasonableness which the law has historically set for police actions, in favour of a test of subjective belief in a need to commit a trespass to the person, barring only gross overreaction. There might also have been puzzlement why, if such a defence was justified, it was to be confined to the moment of arrest. But an informed observer would have concluded that the amendment was concerned with the protection of private individuals who attempt, albeit misguidedly, to intervene when they witness what appears to be a crime".

I make no apology for quoting all of that because it explains why we are not in our beds. It is important when a court draws attention to an anomaly that we take it seriously.

Another example is the case of Buike v the Chief Constable of West Yorkshire. Again Section 329 was invoked to prevent an action brought by the claimant alleging that the police encouraged or allowed a dog to continue to bite the claimant longer than necessary to effect arrest, and dragged him for a substantial distance along the road, stamping on and kicking him.

The use of Section 329 by the police has led to a mismatch between civil and criminal proceedings. For example, it is a defence to a criminal charge of assaulting a police officer to show that you are protecting yourself against unreasonable force on the part of the police. In that situation, the police cannot argue that although the force was unreasonable it was not grossly excessive. But if the same person tried to sue the police for civil trespass to the person, the police could rely on Section 329 unless their actions were grossly disproportionate. There is no equality of arms and the current position fails to recognise that the police are public officers of the state, not private individuals. They are rightly endowed with special powers, but they have special obligations.

There is also a risk that Section 329 as it stands violates the right to physical integrity protected by Article 8 of the European convention and the right in Article 13 to an effective remedy. I will not in detail now explain why that is so. An action taken by an ordinary person to protect or defend themselves or another person from a crime must surely be treated differently from a police officer trained in the use of force. Whereas a police officer must be required objectively to justify her or his actions and use no more force than reasonably necessary, an ordinary person may be given some leeway for an honest and instinctive overreaction, which is what motivated the original amendment of the noble Lord, Lord Hunt of Wirral.

Finally, lowering the level of justification for assault in actions against the police, creating a mismatch between civil and criminal proceedings involving the police and potentially violating the convention is not what Parliament intended when agreeing to the clause. I am sure that it is not what was intended by the noble Lord, Lord Hunt of Wirral, when he originally proposed the provision and I do not believe that it was intended by the noble and learned Baroness, Lady Scotland, and the Government either.

My amendment would disapply the provision from actions against the police and restore the position that a trespass against the person occurring in the course of an arrest by a police officer must be objectively justified, and that no more force must be used than reasonably necessary. Otherwise, as has happened for centuries, the arrested person must be able to bring a claim for damages. I apologise for taking so long. I beg to move.

Photo of Lord Skelmersdale Lord Skelmersdale - Shadow Minister, Shadow Minister 11:00 pm, 20th October 2009

My Lords, I assure your Lordships' Committee that there is absolutely no way, in any possible sense, that we could support any weakening of the expected standard of behaviour of the police. We have had several discussions already over time in Committee on this Bill on the appropriate consequences of what appears to be inappropriate behaviour during police action.

I hope that the Minister will be able to take this opportunity to add to his reassurances during those debates and respond fully to the concerns of the noble Lord, Lord Lester. We certainly hope that the 2003 Act has in no way led to any greater leniency for police officers than was previously the case.

I accept that I am on slightly dangerous ground here, but would not the noble Lord's amendment establish an unprecedented distinction in the civil court between classes of defendant; namely, an officer of police and the ordinary citizen? I am sure that the Minister is better qualified to pronounce on that than I am, and I look forward to hearing his response.

Photo of Lord Brett Lord Brett Government Whip, Parliamentary Under-Secretary of State, Home Office, Government Whip, Parliamentary Under-Secretary (Home Office) (Identity) (also Lord in Waiting)

My Lords, it is with great trepidation that I come to the Dispatch Box to cross swords with the noble Lord, Lord Lester, for whose knowledge of the law I have the greatest admiration. He enunciated very clearly the law of unintended consequences. The amendment highlights the issue. I am grateful for that, but the Government consider it appropriate to consult more widely and to involve the police and other interests before making any decisions as to whether a change to the law outside the Bill is appropriate.

In any event, the amendment does not address all the scenarios that need to be considered. For example, it would deny the protection of Section 329 to an off-duty constable who finds an intruder in his home. I am sure that that was not the noble Lord's intention.

Several wider issues are raised, and the Government's intention at this stage is to consult more widely with the police outside of consideration of the Bill. On that basis, we ask the noble Lord, Lord Lester, to withdraw the amendment.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Spokesperson for Women and Equality

I am grateful that the Government want to consult; that is always sensible, but perhaps I may deal with a couple of points.

The noble Lord, Lord Skelmersdale, raised an important question as to whether treating the police differently from ordinary citizens would create a lack of equality before the law. That was the fallacy, if I may say so, in cases such as Malone, where English courts said that the police can tap our telephones just as an ordinary private person can tap our telephones: they are entitled to full equality of treatment, like any other person and there should be no distinction drawn between them. The fallacy is that, of course, the police are not like an ordinary private person—they are public officers of the state, with special powers and special duties. The European Court of Human Rights held that the tapping of telephones by the police—not by private persons, but by the police—had to be regulated by statute and could not be treated as though it were ordinary conduct by private persons. That is fundamental to any constitutional system of government: the agents of the state have special powers and special duties.

The second point is that, although the Government may wish to consult, if I am right there is a mismatch between the way that that operates at the moment and the obligations under the human rights convention. Therefore, unfortunately, there will be continuing exposure to the possibility of further humiliation in Strasbourg or by our courts if the point is not addressed. The point about the off-duty constable is very important. Of course, if the constable is not on duty, he is in the same position as a private person. We are discussing the situation where public powers are being used by a public officer on duty. That takes advantage of a loophole sensibly introduced by the noble Lord, Lord Hunt, for a totally different reason. As for the wording, if the Government want to tackle the problem, there is no problem in my agreeing any wording that they would like to produce something more elegant and workmanlike. This problem will not go away. If there is to be consultation, we should get a move on.

Having said that, I beg leave to withdraw the amendment.

Amendment 159G withdrawn.

Schedule 7 : Minor and consequential amendments

Amendment 160

Moved by Baroness Harris of Richmond

160: Schedule 7, page 169, line 32, leave out paragraph five

Photo of Baroness Harris of Richmond Baroness Harris of Richmond Deputy Speaker in the Lords, Deputy spokesperson for Northern Ireland, Home Affairs spokesperson for police matters, Deputy Speaker (Lords) 11:15 pm, 20th October 2009

My Lords, I must declare an interest as a former chair of a police authority and the present vice-president of the Association of Police Authorities. I put my name to the amendment tabled by the noble Baroness, Lady Henig, and, with the agreement of your Lordships' House, move it on her behalf. She unfortunately cannot be with us tonight.

This amendment relates to Clause 5 on police collaboration, which we discussed some time ago. At present, police authorities can use local government legislation about the supply of goods and services by local authorities as an alternative means of collaboration. The effect of the Bill's wording is to prevent police authorities entering into these types of agreements with other police authorities and force them to use the collaboration arrangements set out in the Bill in these circumstances. Is that the Government's intention? It seems that the local government legalisation could still be used to collaborate when entering agreements with non-police bodies, but not when entering agreements with policing organisations.

It is a police authority's statutory duty to ensure efficiency and effectiveness, so it follows that it should be left to the police authority to decide what structural arrangements best meet local needs. Preventing or mandating the use of particular types of agreement could impede an authority's statutory duty to put in place the arrangements that are most efficient and effective in the circumstances. The amendment removes this limitation and reinstates the current situation that police authorities should be able to decide locally the most effective way of working together. It would mean that there might not be a standard approach everywhere; however, it is not the structures and mechanisms that matter, but better results for our communities tailored to local needs. It has been said time and again in policing that one size does not fit all, and that is particularly true of complex collaboration projects covering large geographical areas. Retaining flexibility is the best way of ensuring that meaningful results can be delivered.

It would be disingenuous of me to ignore the impact this change would have on the Home Secretary's powers to mandate or prevent collaboration because he has no such powers under local government legislation. That begs the question of why police authorities are not treated as mature partners in the same way as other local government organisations and why the greater devolution promised in the policing Green Paper seems not to be happening in practice. I beg to move.

Photo of Lord Brett Lord Brett Government Whip, Parliamentary Under-Secretary of State, Home Office, Government Whip, Parliamentary Under-Secretary (Home Office) (Identity) (also Lord in Waiting)

My Lords, I rise to resist this amendment, although I recognise the concern that police authorities might have over the provision in Schedule 7 that restricts their use of the Local Authorities (Goods and Services) Act 1970. I understand that Section 1 of that Act is used most commonly by police authorities to make agreements on the provision of goods and services with other public bodies, such as local councils or other emergency services, rather than with other police authorities, and I should make it clear from the outset that the provisions in the Bill do not prevent that continuing and are, in fact, not concerned with that situation.

However, without this consequential amendment in Schedule 7, an unacceptable loophole would remain. Police authorities could use the 1970 Act for agreements between police authorities where they could be using the collaboration provisions in the Police Act 1996, as amended by Clause 5. This would allow police authority agreements to circumvent the safeguards provided in the collaboration provisions.

There is no particular advantage for police authorities in using the Local Authorities (Goods and Services) Act with each other instead of the Police Act collaboration agreement provisions—it simply allows agreements about providing goods and services to be made between local authorities and any person—save to avoid having to comply with the provisions in the Police Act. In that way, they do not need to have regard to any guidance that may be issued by the Secretary of State on best practice in drawing up agreements and do not have to consult their chief officer.

It has been suggested that some agreements between police authorities are too small to warrant being categorised as collaborations and therefore do not deserve to be constrained by the provisions in Clause 5. I argue that the constraints placed on police authority collaboration agreements do not impose a significant burden and I trust that authorities use common sense in judging what is required for compliance in each case. They must consult their chief officer on all agreements but, if the subject of the agreement has no impact on operational matters, that consultation would be routine.

In our work with police authorities and the Association of Police Authorities on developing the statutory guidance on collaboration, we will want to ensure that it addresses the need to tailor agreements within the legislative framework across the whole spectrum of joint working, from sharing specialist staff between police authorities to multiforce collaboration programmes. The greatest clarity of outcome is achieved in this situation by preventing the availability of any alternative legal mechanism as the basis for collaborative working. On that basis, I hope that the noble Baroness will feel able to withdraw the amendment.

Photo of Baroness Harris of Richmond Baroness Harris of Richmond Deputy Speaker in the Lords, Deputy spokesperson for Northern Ireland, Home Affairs spokesperson for police matters, Deputy Speaker (Lords)

My Lords, I thank the Minister for his comments. The one part of his comments with which I agreed was working with the APA on statutory guidance, which I would certainly encourage. I just feel that the writers of the Bill have not got it; they just have not understood what we are trying to say, quite frankly. The use of common sense is all very well, but I wish that some had been applied when this had been written. At this late stage, I know that we are going to get no further with this. I will read the Minister's response. We may come back to this on Report but, in the mean time, I beg leave to withdraw the amendment.

Amendment 160 withdrawn.

Amendments 161 and 162

Moved by Lord Brett

161: Schedule 7, page 172, line 30, leave out from "of" to end of line 38 and insert "relevant entertainment—

(a) at premises for which a licence for a sex encounter venue is required (or the requirement has been waived) by virtue of Schedule 3 to the Local Government (Miscellaneous Provisions) Act 1982, and

(b) of a kind, and in a way, by virtue of which the premises qualify as such a venue, is not to be regarded as the provision of regulated entertainment for the purposes of this Act.

(1A) The provision of relevant entertainment—

(a) at premises which are subject to a licence for a sex encounter venue but are not such a venue merely because of the operation of paragraph 2A(3)(b) of Schedule 3 to the Act of 1982, and

(b) of a kind, and in a way, by virtue of which the premises would qualify as such a venue but for the operation of that paragraph, is not to be regarded as the provision of regulated entertainment for the purposes of this Act.

(1B) The provision of entertainment consisting of the performance of live music or the playing of recorded music is not to be regarded as the provision of regulated entertainment for the purposes of this Act to the extent that it is an integral part of such provision of relevant entertainment as falls within sub-paragraph (1) or (1A).

(1C) The provision of entertainment facilities is not to be regarded as the provision of regulated entertainment for the purposes of this Act to the extent that it is for the purposes of such provision of entertainment as falls within sub-paragraph (1), (1A) or (1B).

(2) In this paragraph—"

162: Schedule 7, page 172, line 40, at end insert—

""relevant entertainment" has the meaning given by paragraph 2A(2) of that Schedule to that Act;"

Amendments 161 and 162 agreed.

Schedule 7, as amended, agreed.

Schedule 8 : Repeals and revocations

Amendments 162A and 162B had been withdrawn from the Marshalled List.

Amendments 163 and 164 not moved.

Amendment 165

Moved by Lord Brett

165: Schedule 8, page 200, line 26, at end insert—

"Part 11AMisuse of Drugs Act 1971: warrants

Reference Extent of repeal
Misuse of Drugs Act 1971 (c. 38) In section 23— (a) in subsection (3), "acting for the police area in which the premises are situated", and
(b) subsection (5)."

Amendment 165 agreed.

Schedule 8, as amended, agreed.

Clauses 112 to 115 agreed.

Clause 116 : Commencement

Amendment 165A not moved.

Amendment 166

Moved by Lord Brett

166: Clause 116, page 134, line 14, leave out "and" and insert—

"(ba) section (Removal of limitation on warrants under Misuse of Drugs Act 1971) and Part 11A of Schedule 8 (and section 112(2) so far as relating to that Part), and"

Amendment 166 agreed.

Clause 116, as amended, agreed.

Clause 117 agreed.

House resumed.

Bill reported with amendments.

House adjourned at 11.24 pm.