Relevant documents: 12th Report from the Delegated Powers Committee, 4th Report from the Joint Committee on Human Rights.
Moved by Baroness Smith of Basildon
56MD: Before Clause 100, insert the following new Clause—
“Firearms licences: assessing public safety
(1) The Firearms Act 1968 is amended as follows.
(2) After section 28A (certificates: supplementary) insert—
“28B Assessing public safety
(1) When assessing the threat to public safety under section 27, 28, 30A, 30B or 30C, the chief police officer must ensure that a range of background checks are performed.
(2) Where these checks uncover substantiated evidence of violent conduct, domestic violence, mental illness or drug or alcohol abuse, the presumption is that the chief police officer should refuse the licence application unless exceptional evidence can be brought forward by the applicant as to their suitability to possess a weapon.
(3) When assessing public safety within this section, the chief police officer must follow any guidance issued by the Secretary of State.”
(3) After section 113(1) (power of Secretary of State to alter fees) there is inserted—
“(1A) Before making an order under this section, the Secretary of State must consult chief police officers to ensure the level of fees collected by the police under sections 32 and 35 are appropriate after considering the costs they incur through the administration and assessment of firearms’ licences made under this Act.””
My Lords, we support the Government’s clauses on firearms but feel that more needs to be done, which is why we have tabled Amendment 56MD. Our proposed new clause calls for a broader range of better background checks to be included as part of the licensing process. It amends the Firearms Act 1968 so that a history of domestic violence, drug or alcohol abuse, or mental illness provides a presumption against the acquisition of a firearms licence, unless exceptional evidence can be provided to the contrary. It also introduces full cost recovery, to ensure that the cost of a licence reflects the cost to the police of processing it. In this amendment, firearms and shotgun applications are treated the same and the range of background checks is improved. Both the IPCC and the Home Affairs Select Committee in the other place called for this.
The Minister will recall that I raised this issue at Second Reading and gave a specific example, about which I know he will share my concerns. Susan McGoldrick was murdered, along with her niece and her sister, by her partner, who legally held a firearm. As many as one in three women killed by their partner in England and Wales is shot with a legally owned weapon; 64% of these murders involve shotguns. The Government have introduced new guidance, which is welcome, and I know that we cannot stop every crime by legislation alone, but we can do better.
In the past 12 months, 75% of female gun deaths occurred in domestic incidents; in 2009 the figure was 100%. The IPCC and the Home Affairs Select Committee have both proposed tougher rules to prevent people with a history of drug and alcohol abuse, mental illness or violence—particularly domestic violence—from acquiring firearms licences. The IPCC called for:
“Explicit guidance around domestic violence and seeking the views of partners/family members where domestic violence is a previous factor”.
We agree with the need for explicit and clear guidance on legislation but the issue of seeking the views of partners or ex-partners is somewhat difficult, and we would not support seeking the consent of a partner or former partner because that could lead to intimidation and place people at even greater risk. Perhaps there should be wider consultation on this with a range of people.
The present position is that just one home visit is required by law for an initial application. Good practice means that there can be additional visits or checks, but that is not in the legislation. I understand why there are concerns about the impact of part of this amendment on those who have a history of mental illness. I stress that mental illness at some point in a person’s life does not disqualify them for ever but they would have to provide evidence that would allow an exceptional case to be made for their suitability to possess a weapon. Of course, we are not saying that they cannot take part in shooting—there are registered clubs—they just cannot have weapons at home.
The Government have stated that the Home Office will issue guidance and that should alleviate the issue. But we are pretty sure that guidance alone is not enough to tackle tragic domestic violence-related deaths, which have been on the rise. It is not good enough, and that is why we have tabled Amendment 56MD.
The other part of the amendment concerns full cost recovery. In so many areas, the Government are seeking full cost recovery, but not in firearms. I am curious about the reasons for this anomaly. Our amendment would require the Home Secretary to consult with police officers before setting a fee level that would enable police forces to recoup all the costs they incur when conducting proper background checks.
Currently a firearms licence costs just £50 for five years and only £40 for renewal, but if an application is processed properly it takes up a considerable amount of time, including home checks and background checks, which is not reflected in the cost of the licence. The cost of administering a firearms licence is much higher. Therefore, at present the taxpayer is subsidising the firearms licensing system by an estimated £18 million a year. Given the level of police cuts across the country, that level of subsidy seems unfair. It is difficult to understand why, at £50 for five years, the annual cost of a firearms licence is barely a third of the cost of a fishing licence, which costs £27.50 a year, and roughly equivalent to the cost of a CRB check, which costs £44 and only requires a name to be checked against a database, which is much less onerous.
The Government’s current position is that they will aim to introduce a fee regime in 2015 under which just 50% of the cost—not the full cost—is recovered by the police. I ask the Minister: why only 50% and why not until 2015? Why are fishing licences so much more expensive? Why are the Government not going for full cost recovery when they are committed to that general principle across the public sector, for example, with passports and driving licences? Why is that not extended to gun licences? At Second Reading we discussed full cost recovery on tribunal fees; that will come up again. The Government claim that they want to improve the system of background checks associated with firearms licences but will not commit to putting that in legislation. On full cost recovery, they say that they will introduce a fee regime in 2015.That is too late; it can be done sooner than that.
These issues need to be addressed now. We want to save lives and reduce the number of gun-related domestic violence deaths as soon as possible. Amendment 56MD seeks to do this and is a much more direct and effective solution than the Government’s alternative of vague guidance and promises for 2015. I beg to move.
My Lords, I start by declaring an interest. I have interests in shooting and I am a firearms and shotgun licence holder. I have also been a referee for others who are such licence holders.
After the tragedy of Dunblane, it was one of my party tricks to ask chief officers of police whom I ran into how we were getting on with the police national firearms computer, which was promised in the wake of that tragedy. It took a very long time for anything that even approached that to become a reality.
I said on Second Reading that I supported the Government’s proposals to tighten things up with regard to firearms licences. The amendment, however, seems to rest on a premise that is at variance with my experience and that of others whom I know. I sought information from the British Association of Shooting and Conservation. I am not a member of BASC, but every now and again, I attend the All-Party Parliamentary Group on Shooting and Conservation, for which BASC provides secretarial support. It has largely confirmed my belief.
I believe that the measures in proposed new Clause 28B, “Assessing public safety”, and subsection (1) in particular, are already being performed—those checks are already taking place. That is certainly my experience of what the police in more than one force are doing in response to an application. I believe that there is a new ACPO professional practice document for firearms licences due early in 2014. I have not seen it, but I understand that it will set out how that will be dealt with at database level on the police national computer, including local intelligence and the domestic violence unit. I understand that there is also new guidance from the Home Office, but I have not seen that either, but presumably it will tie in with what ACPO is doing. So I question whether the amendment is necessary.
On new subsection (2) and the question of,
“substantiated evidence of violent conduct”,
and so on, the chief officer of police must also always have final discretion on the matter, but that subsection appears to take that discretion away. That was also the view of BASC. In any event, presumption exists that someone such as Michael Atherton, who was known to be a heavy drinker and in a violent domestic situation, will be refused. Durham police knew that but failed to act. The amendment does not add anything and would do nothing to make that failure more or less likely. Perhaps the Minister has a different take on that.
On new subsection (3) and the question of the guidance of the Secretary of State, this may sound like semantics, but if it is guidance, adherence to it is presumably not mandatory. For it to be mandatory, there must be something more like a directive or regulation. If it is guidance or whatever, chief officers of police ought to adhere to it or be able to give pretty compelling evidence why they have departed from it. That should be on a case-by-case basis. The reason that I say that is that I am advised that settled law requires every such case to be considered on its merits.
With regard to the question of fees, I was not clear whether what is proposed is a flat rate, which is what we have at the moment, or whether there should be a variable rate depending on whether someone was what you might call a difficult customer and therefore needed more investigation. Perhaps that could be explained.
I do not really have a view on the actual level, other than that it should be proportionate and consonant with other licensing regimes. I suspect that in reality £50 looks a bit cheap. Those are my comments on the amendment.
My Lords, this seems to be a matter of straightforward common sense. When there is a history either in which people have been involved in violence or which suggests that they may not always be in full command of their activities, because of alcohol or drug misuse, those are exactly the sort of people who should be denied access to firearms. The cases cited about firearms being used in domestic violence situations are a particularly compelling example of why this is important.
While I accept that chief officers of police must use their judgment, spelling out in legislation in this way that these are the matters they should look at, and that the presumption should be one in which they would refuse a licence application, is exactly the right way round it. That would then place the onus on those seeking the licence to demonstrate why they are suitable, notwithstanding the history of violence they may have shown or the fact that they were known to have substance abuse problems.
It is also extraordinary to hear from my noble friend Lady Smith about the difference in fees for various sorts of licence. This is surely an example where the fees should be set to reflect the fact that the checks which should be done should be thorough and all embracing, and should certainly cover the matters outlined in this amendment. On any common-sense interpretation of what Parliament should be doing about restricting the access to firearms of people who might be a danger to others, this is exactly the sort of amendment that should be put forward and agreed.
My Lords, I am pleased that we have had this short debate on what is a very important issue. The new clause proposed by the noble Baroness, Lady Smith, relates to two firearms licensing issues which were discussed extensively during the passage of the Bill in the House of Commons. As the noble Baroness has explained, the first part of the proposed new clause seeks to create a presumption that if an applicant for a firearm meets one of the stated criteria, the police should not grant a licence. The stated criteria include evidence of domestic violence, mental illness and drug or alcohol abuse. While I share the anxiety of the noble Baroness about firearms being possessed or accessed by unsuitable persons, the police already have the ability to take these factors into account when assessing the risk to public safety. I would also be concerned about including mental illness as a presumption for a refusal. It would be wrong for us to suggest that all forms of mental illness, even a past episode, should prima facie disqualify a person from possessing a firearm.
I understand that there are particular concerns about domestic violence and abuse. In response to these, on
The proposed new clause also seeks to introduce a requirement that the police must follow any guidance issued by the Home Secretary when assessing public safety. I understand that argument, but I consider that guidance needs to remain just that. It is right that chief officers have the discretion to assess applications for firearms in their local areas, taking into account the merits of each case and the published guide. Chief officers are ultimately responsible for public safety at a local level. I agree with the noble Earl, Lord Lytton, on this. The Government have sought to make decision-making a local responsibility wherever possible. I would not want to undermine this.
However, we are ensuring that, where national action can support local decision- making, it does. We are working with the national policing lead for firearms licensing to ensure that police have a more detailed awareness and understanding of the Home Office guide. The College of Policing will also be publishing authorised professional practice on firearms licensing, which will complement and cross-refer to our guidance. I believe that this is the way forward. In order to assess standards, HMIC has carried out a scoping exercise on how firearms licensing is conducted in practice, and we will use the findings from the exercise to drive up consistency of decision-making across the country.
I turn to the second part of the proposed new clause, which seeks to introduce a legal requirement for the Secretary of State to consult all chief police officers before revising the licence fees so that they achieve full cost recovery. Noble Lords should be reassured that consultation with the police is integral to the fee-setting process and we fully accept the need to consider the impact of licensing on police resources. That is why a new online licensing system is being introduced, cutting the administrative burden of a paper-based system. Primary legislation is not required to make this happen. Until we have driven out the inefficiencies in the current paper-based approach to the licensing function, it would not be appropriate to raise the fees fourfold in order to achieve a “one giant step” full cost recovery. The current fees and licensing structure has remained the same for a long time and—we all accept—needs to be reviewed. It is extremely important that we achieve a balance between an efficient system and a proper fee level. For this reason, we are considering what level firearms licensing fees should be over the long term, once these efficiencies have been made. I hope that, having demonstrated to the noble Baroness that we have made considerable progress on these issues, she will be persuaded that further legislation is unnecessary and in a position to withdraw her amendment.
My Lords, I would love to have been persuaded by the Minister, because the only reason we brought this amendment forward is that the current system is not working. If it were, there would be no need for such an amendment, so it is clear that we are extremely concerned. I was interested in the point raised by the noble Earl, Lord Lytton, on the case of Michael Atherton; he said that existing legislation was adequate. I tell him that there are a number of reasons why Mr Atherton should not have had a firearms licence, perhaps most crucially his history of domestic violence. The police wanted to refuse his application, but they were given legal advice that they did not have the grounds to refuse. That is part of the problem: it indicates the change in the law that is needed. Discretion can be very difficult for police officers when they are getting legal advice that, if they use that discretion, they will be challenged in courts. That is one of the reasons we have brought this forward. I understand the concerns on mental illness, and I would never suggest for a moment that anybody who has had a mental illness should not be able to hold a licence. I think, however, that there should be a check on people who have had a mental illness who could be a danger to themselves or others; where it is coupled with domestic violence, for example, then there is a case.
I am also rather surprised by the Minister’s issue on full cost recovery, because I do not think that that principle is applied to other areas of full cost recovery. It does not really explain to me why a fisherman pays so much more to have a licence or why that licence is so much more expensive than a firearms licence.
In the light of the debate today I will take away the Minister’s comments and look at them in Hansard, and for now I beg leave to withdraw the amendment.
Amendment 56MD withdrawn.
Clause 100: Offence of possessing firearm for supply etc
Amendment 56ME not moved.
Clause 100 agreed.
Clause 101 agreed.
Moved by Lord Ahmad of Wimbledon
56MF: After Clause 101, insert the following new Clause—
“Possession of firearms by persons previously convicted of crime
(1) In section 21 of the Firearms Act 1968 (possession of firearms by persons previously convicted of crime), before subsection (3) there is inserted—
(a) a person has been sentenced to imprisonment for a term of three months or more, and
(b) the sentence is suspended under section 189 of the Criminal Justice Act 2003, the person shall not have a firearm or ammunition in his possession at any time during the period of five years beginning with the second day after the date on which the sentence is passed.”
(2) In section 58(2) of that Act (saving for antique firearms), for “Nothing in this Act” there is substituted “Apart from—
(a) section 21 and Schedule 3, and
(b) any other provision of this Act so far as it applies in relation to an offence under section 21, nothing in this Act”.
(a) a person is in possession of a firearm or ammunition immediately before the day on which subsection (1) comes into force,
(b) by reason of a sentence imposed before that day, subsection (1) would (but for this subsection) make the person’s possession of the firearm or ammunition subject to a prohibition under section 21 of the Firearms Act 1968, and
(c) the person’s possession of the firearm or ammunition immediately before that day is authorised by a certificate within the meaning given in section 57(4) of that Act, the prohibition does not apply while the certificate remains in force.”
My Lords, the Government remain committed to strengthening the system of firearms control where necessary in order to protect people from harm. We have identified two loopholes in the Firearms Act 1968 that we are taking the opportunity provided by this Bill to address.
The first change is in response to a recommendation made by the Home Affairs Select Committee in 2010. The committee recommended that persons with suspended sentences should be prohibited from possessing firearms in the same way as those who have served custodial sentences. The Government have accepted that recommendation, and subsection (1) of the new clause will ensure that the same prohibition applies to people who have suspended sentences.
A person who has served a custodial sentence of between three months and three years cannot possess a firearm for five years after the date of their release. For the purposes of suspended sentences, this prohibition will start from the second day after the date of sentence rather than the date of release. This is because a person with a suspended sentence will not be in custody from the date of sentence, so the prohibition needs to begin almost immediately. We have said the second day after the date of sentence so that, if the person does have a firearm, they are not instantly in breach of the law upon receiving their suspended sentence. In effect, they may have around 24 hours to sell the firearm or transfer ownership of it to someone else.
I should say, however, that this requirement on a person given a suspended sentence immediately to divest themselves of any firearms is subject to the transitional provision in subsection (3) of the new clause. This provides that a person who has had a suspended sentence imposed, and who holds a firearm or shotgun certificate on the day that the new legislation comes into effect, will be able to continue to possess their firearm or shotgun for the duration of that certificate. This is to ensure that we are not placing any additional burden and bureaucracy on the police by obliging them to go through their records to find certificate holders who have suspended sentences. As I have already said, this is purely a transitional arrangement; it will not apply to anyone given a suspended sentence after commencement.
The second change, made by subsection (2) of the new clause, will ensure that prohibited persons are prevented from possessing antique firearms. Currently a person with any criminal conviction would be able to possess an antique firearm. Intelligence indicates that there is a growing interest in antique firearms from criminal groups. This amendment will ensure that persons convicted of a criminal offence and sentenced to at least three months’ imprisonment, including a suspended sentence, will be prohibited from possessing antique firearms in the UK.
We believe that closing both these loopholes will strengthen public protection by ensuring that, as the 1968 Act intended, persons convicted of a criminal offence carrying a sentence of at least three months’ imprisonment are prohibited from possessing firearms. Amendment 104 simply makes a consequential amendment to the extent clause. I commend the new clause to the Committee.
My Lords, my noble friend the Minister said that an offender would be allowed a couple of days’ grace, as it were, to sell or hand over the firearm. If the offender wanted to hand it to someone in the same household, would that person have to have a licence, so that there would be no question of it being kept around on the premises and available unless the licence was already there for someone else?
We certainly support these amendments as they address gaps in the legislation and will enable more effective and comprehensive monitoring of firearms licensing. It is interesting to note that the Government’s intention to close loopholes in firearms licensing seems to stop at those on suspended sentences and at tightening regulations on antiquities. Although we agree they are important areas, the Government’s legislation, as we said on the previous amendment, does not extend to other rather more serious areas of activity or to preventing people obtaining a firearms licence. The Government seem to be keen on addressing loopholes in certain aspects of granting firearms licences but not, apparently, in others.
My Lords, I intervene very briefly on this to thank the Government for including this clause in the Bill. It will have the effect of ending the present ludicrous and anomalous situation where British Transport Police officers can be selected and trained in the use of firearms, but then have to apply individually for firearms certificates, adding enormously to the bureaucracy through which they have to go and delaying the recruitment of trained officers to serve the British Transport Police. This is a subject I raised first during scrutiny of the Police Reform and Social Responsibility Bill in July 2011 and because nothing had happened by the start of this Session, I introduced a Private Member’s Bill which would have produced this effect. I am delighted to say that I got a letter from the noble Earl, Lord Attlee, on
I assume this is something the British Transport Police wants. I can hardly imagine that it is something the Government are imposing on it. Is this something it has been pressing for some lengthy period or has it been pressing for it only recently?
The noble Lord, Lord Faulkner, indicated that considerable extra burdens have been created for the British Transport Police in undertaking its responsibilities in this direction. We have been made aware of it. The noble Lord, Lord Faulkner, has been a very strong advocate of the issue. I am pleased that the Home Office has been able to respond favourably.
Clause 103 agreed.
Moved by Lord Foulkes of Cumnock
56N: After Clause 103, insert the following new Clause—
“Assault on workers in public facing roles
(1) A person, being a member of the public, who assaults a worker—
(a) in the course of that worker’s employment, or
(b) by reason of that worker’s employment, commits an offence.
(2) No offence is committed—
(a) under subsection (1)(a) unless the person who assaults knows, or ought to know, that the worker is acting in the course of the worker’s employment;
(b) under subsection (1)(b) unless the assault is motivated, in whole or in part, by malice towards the worker by reason of the worker’s employment.
(3) In this section—
“worker” means a person whose employment involves dealing with members of the public, to any extent, but only if that employment involves—
(a) being physically present in the same place and at the same time as one or more members of the public; and
(b) interacting with those members of the public for the purposes of the employment; or
(c) providing a service to either particular members of the public or the public generally,
“employment” in this context means any paid or unpaid work whether under contract, apprenticeship, or otherwise.
(4) Evidence from a single source is sufficient evidence to establish for the purpose of subsection (1) whether a person is a worker.
(5) A person guilty of an offence under this Act is liable, on summary conviction, to imprisonment for a period not exceeding 12 months or to a fine not exceeding level 5 on the standard scale.”
My Lords, Amendment 56N would create a new clause in the Bill. I think it is a key amendment. Since tabling it, I have received expressions of support from all sides of the House. I am glad to see the noble Lord, Lord Bradshaw, and the noble Baroness, Lady Coussins, in their places. They and others have expressed to me support for this amendment. I have not yet had the support of the Minister. I know that he is a listening Minister—I think it is the noble Lord, Lord Taylor, who is going to reply. I know him very well. I bump into him at airports and other places. I know he listens to logical argument and is concerned about these issues. I am sure that with a little persuasion we will get some sympathy, if not today then at some later stage.
I am sure that other Members of this House have been motivated as I have been by stories of shop workers who have been attacked when trying to apprehend shoplifters and effectively doing the work of a policeman. They are surrogate policemen in those instances, yet they get attacked as a result. There have been stories, too, of licensees set upon by teenage thugs for refusing to sell them liquor because they are underage. They may be underage for buying liquor but many of them are big, strapping lads and can inflict serious injuries on shopkeepers. That was the motivation behind the amendment and I will give a few examples and arguments later.
First, I acknowledge with sincere gratitude the help and support that I have received from the Union of Shop, Distributive and Allied Workers—USDAW—in drafting the amendment and advising on it. Unions sometimes come under attack and receive criticism of one sort or another, which is sometimes apposite, but they really look after their workers in so many ways. When legislation is being considered, our concern is to see what can be done to improve the lot of those workers. I particularly thank Karen Whitefield, a former Member of the Scottish Parliament, who helped with this, and Ruth George, one of the USDAW staff, who helped me greatly.
This amendment would cover more than just shop workers. It would cover health workers, public transport staff—about whom the noble Lord, Lord Bradshaw, is particularly concerned—local government staff, government agency staff, postal workers, teachers and catering staff; so the coverage is widely spread. In our privileged position in this House, it is sometimes easy for us to be divorced from the problems experienced daily by those on whom we rely for basic goods and services, so I will give some statistics that the union has provided. In 2012 alone, there were 120,000 violent attacks against retail staff throughout the United Kingdom; it is a very widespread problem. The Association of Convenience Stores has also expressed concern about this. In a briefing earlier today, it said that in the past three months more than half of retailers reported being victims of verbal or physical abuse during the course of their work. These are ordinary working people, often earning the minimum wage or little more, who are being attacked for simply doing their jobs and upholding the law of the land.
Consider for a moment the fact that 30%—nearly a third—of such violent and abusive incidents occur, as I said earlier, when customers are challenged on restricted items such as alcohol or cigarettes; that is, when staff are upholding the laws that we passed. Other such incidents occur when staff confront shoplifters, again when those staff are upholding the laws that we passed.
The assaults suffered by these workers are especially traumatic. People then have to go back and continue to work each day in the same situation in which they were attacked. Many retail staff report anxiety, panic attacks and a pervasive fear that such an incident will happen again. Such are the conditions under which they work.
I was given one example of a man in Sunderland out celebrating his lenient sentence—ironically, for a previous assault on someone with learning disabilities—who tried to steal some pork scratchings. He was challenged by a shop worker. First, he racially abused her in front of children and then tore out chunks of her hair. The shopkeeper was left shaking and crying, with her hair on the ground. The offender received as a punishment only a 12-month suspended sentence, effectively getting off. Such decisions do not acknowledge the physical and mental anguish suffered by the victim and do not inspire public faith in the criminal justice system. To make matters worse, there are so many cases that go unprosecuted. Perhaps it comes as no surprise that an USDAW survey showed that 17% of retail staff who had suffered a physical assault at work had not reported it as they believed that nothing would be done.
What, then, does the amendment do? It sets out to create a specific offence of assaulting someone who works with the public in the course of their employment. At present, doing that is simply one of 19 aggravating factors, and experience of prosecutions and sentencing shows that that is often not enough to see justice done. In far too many instances, because of the laws that currently govern assault in the workplace, the police and the CPS seem to decide that it is just not worth prosecuting people in those cases of common assault, as they will be fined perhaps only £50 at the end of that long procedure.
If, however, the amendment was passed, it would help to bring such cases to court and ensure that sentencing reflected the seriousness of the crime. By making assault on a public-facing worker a separate offence the amendment would elevate the seriousness of that crime and put it well above the offence of common assault in the sentencing guidelines. That, in turn, would make the range of penalties for offenders higher, thus encouraging a higher number of prosecutions. It would also send a clear message that such behaviour was totally unacceptable and, I hope, have a deterrent effect.
I advise the Committee that in Scotland similar protective measures for emergency workers have led to a decline in such incidents and to more than 1,000 prosecutions. I hope that the Committee will agree that the time has therefore come to provide shop workers, health workers, public transport staff, local government staff, government agency staff, postal workers, teachers and catering staff with a similar level of protection. If the Government are really on the side of those hard-working people—I know that the Minister has said so on a number of occasions, as have others—they can start by joining with us who support this amendment to give these men and women the peace of mind and support that they deserve. I beg to move.
My Lords, I support what the noble Lord has just said. I was moved to speak to the amendment having recently watched the six films on Channel 4 about the staff on First Great Western. It was brought to my attention—although I should have known it—that there was a lady guard or train manager on a train going from Paddington to Swansea. She went the whole way and was by herself. The train was invaded by drunks at Paddington, Reading, Swindon, Bristol, Newport and Cardiff. They got off at one place, another lot got on, and they got more and more drunk as the train went on. She had no means of defending herself whatever; I think it was only her good sense of humour that got her through. Other films showed people manning ticket barriers by themselves and being fearfully abused by people who were offering violence and that sort of thing.
That caused me to wonder about transport workers who work alone. If you are driving a bus in north London on a Friday night—I do not advise you to be a passenger—some people’s behaviour can be quite awful. We expect public servants to take that. As the noble Lord, Lord Foulkes, said, we sit here in comparative safety and peace, but I know from my time on the police authority that going around big cities on Friday and Saturday nights is an appalling position in which to be, especially during the small hours. I suppose that policemen cannot be offended by obscenities and threats of violence, but I am sure that many staff are very much frightened by them.
When I was coming to your Lordships’ House at the beginning of the week, on Monday, I was standing on the Bakerloo line platform at Paddington, where there was a relatively young lady who was the Bakerloo line duty manager. A man who looked as if he was drunk and had been to the races—the camel coat was the sign—was abusing her with the most awful obscenities, waving a stick and threatening to punch her, and all sorts of things. Yet she was down there in the station, absolutely alone; there was nobody else to whom she could turn for support.
What I want to know, and what I would like the Minister to mention in his reply, is whether the penalties really fit the crime. Is it enough to fine people £50 when the magistrate or court sits on a Tuesday morning, when everybody is sober and fairly well behaved? There should be an exemplary punishment. I am not in favour of shutting a lot of people up in prison, but there is scope for very substantial periods of community service. If they have to be served on Saturday and Sunday—or, more particularly, on Sunday, clearing up the mess of the night before—it is all well and good. If those people can be taken off the streets for a fair period of time, it would send a message not only to them but to the people with whom they associate.
In the peaceful town where I live—at least, I think that it is peaceful—fairly recently, a person racially abused a bus driver, assaulted him and broke his glasses. In that case, the court sent him to prison, though not for very long. It needs to be ingrained in people’s minds that if you assault somebody who is doing a public duty, particularly when that person is alone, you need to be dealt with more severely. I hope that the noble Lord, Lord Taylor, will have something to say about how that penalty can be toughened up.
My Lords, I support Amendment 56N. It would be particularly helpful and appropriate for workers in the licensed trade. I currently work with producer companies, but declare an interest as a former chief executive of the Portman Group, where
I also worked with licensees in both the on-trade and the off-trade. I am aware that vulnerability to assault is a live and worrying issue among this group of people, who have already been flagged up as a group for concern by the noble Lord, Lord Foulkes. The public is not generally aware that this is one of the issues of concern to people in the licensed trade, because it does not get any attention or media coverage. On the contrary, coverage about alcohol-related violence and anti-social behaviour tends to portray licensees as the bad guys for serving underage customers or drunks, or for provoking violence just by being there. The truth is that only a very small proportion of licensees are guilty of such offences as serving underage customers; the vast majority are scrupulously and professionally operating responsibility schemes such as proof of age ID to abide by the law and do the right thing. Yet, all too often, they are the victims of a backlash by violent customers for doing so.
The noble Lord, Lord Foulkes, referred to the survey from the Association of Convenience Stores, which was conducted only in August this year—so it is very recent and up to date. That survey revealed that 51% of retailers reported being a victim of verbal or physical abuse in the previous three months during the course of their work. When you match that up with the shopworkers’ union survey data, which suggested that refusing to sell age-restricted goods such as alcohol is a flashpoint for violence and abuse in 30% of cases, you can see how important this new measure would be for the licensed trade. Of course, it is not just a problem for the off-trade; the National Pubwatch scheme reports that pub licensees and their bar staff, as well as door staff, face a great deal of hostility when they are just doing their jobs. Indeed, National Pubwatch recently ran a campaign called “Court not Caution” to draw attention to the extent to which assault against their members was often ignored or seen to be dismissed by the police, who often seem to caution people for really quite serious incidents. This is leading to an undesirable loss of confidence in the criminal justice system. In one case a licensee had been smashed in the face with a glass but the offender was simply cautioned—never mind a £50 fine. The licensee subsequently suffered mental trauma and had to leave the trade and her livelihood. I believe the offence proposed by this amendment would be proportionate and consistent with the existing offence of assaulting a police officer and I urge the Government to give it the most serious consideration.
My Lords, I declare my registered interest in policing. I am sympathetic to the reason why the noble Lord, Lord Foulkes, has moved the amendment and why it has been supported by the noble Lord, Lord Bradshaw, and the noble Baroness, Lady Coussins. However, I fear the real mischief they and we might seek to address is not the absence of suitable offences but the absence of action by, perhaps, police, prosecutors and sentencers. There is a range of assault offences already on the statute book that is more than adequate to cover the challenges that noble Lords have raised, such as common assault, assault occasioning actual bodily harm, grievous bodily harm and aggravated assault if there is a racial element.
There are more than adequate offences on the statute book to deal with this challenge. The real mischief is the absence of action, the overuse of cautioning or the overly lenient sentencing around these offences—
I understand what the noble Lord is saying but will he accept that there is a specific offence of assault of a police officer, which has higher penalties than ordinary assault? When a shopkeeper is doing effectively the work of a police officer in arresting someone who is shoplifting, should that not be considered in exactly the same way as an attack on a police officer?
I hear what the noble Lord says but I do not find myself in total agreement with his arguments. He mentioned the experience of Scotland. That was a very laser-like, focused new offence on emergency workers only. I am genuinely sympathetic to the motivation behind this amendment but it is such a broad category of workers, across such a huge range of situations. Apart from the important symbolism of saying, “Here is a new offence”, I fear it would not add practically to improving the situation overall, and I say that with hesitation. The example the noble Lord, Lord Foulkes, gave of a licensed worker having their hair pulled out is clearly at least an assault occasioning actual, if not grievous, bodily harm. If there was no action, it is a dire condemnation of the police involved in that particular offence. I am very sympathetic to the motivation but the real mischief is in getting more action carried out, rather than adding more offences.
My Lords, I am afraid I do not take the same view as the noble Lord, Lord Condon, and support very much what my noble friend Lord Foulkes and the noble Lord, Lord Bradshaw, have said. I am particularly pleased that the noble Lord, Lord Bradshaw, has talked about public transport workers, who are some of the most vulnerable public servants. They face members of the public, often on their own, in very difficult circumstances.
I declare an interest as a member of the First Great Western stakeholder board and I can say to the Committee that all of us were very proud of the staff depicted in the television programme to which the noble Lord, Lord Bradshaw, referred. We, too, were horrified at the thought that women would be in charge of trains, on their own, late at night, travelling to far-flung parts of the United Kingdom and being subjected to the sort of treatment he described. It is unacceptable. The situation might be easier if the trains were policed by officers from the British Transport Police—not armed officers; I spoke about them a moment ago. Just the presence of British Transport Police on the trains has a very significant effect. However, the force is not large enough to be able to police all the trains so there has to be a measure of self-restraint and adequate penalties for people who behave in an unacceptable and violent way towards public servants doing their job properly.
All too often one finds that members of the public do not want to know when they see these things going on. When fellow passengers have behaved in an anti-social manner on the Underground or the Croydon tram, I have always felt a little nervous about trying to intervene.
One of my colleagues on the Great Western board attempted to intervene on the District line at Westminster when a man was racially abusing another passenger. The man was completely off his head on drink or drugs. No one came to my colleague’s aid and, when he got off the train, the drunk got off with him and then assaulted him on the platform. As far as I know, no follow-up action has been taken. This is not acceptable. Noble Lords have done the Committee a great service in bringing this amendment before it. I hope that the Minister will take what has been said very seriously.
My Lords, I understand, and can picture, some of the incidents that have been described. When I used to have to go up to Manchester regularly at weekends, I took to checking whether Manchester United was playing at home and took care not to travel back on trains which might be full of supporters. Having said that, I agree with the noble Lord, Lord Condon, on this. I would be very reluctant to make this a new criminal offence and add it to the statute book. Indeed, I would be reluctant to add any new criminal offence to the statute book unless it was absolutely necessary. Will my noble friend say a word about aggravating factors in sentencing? Would this be a matter for sentencing guidelines, which I know are not under the control of the Government given that we have a Sentencing Council? If an offence has been committed in this context, a sentence can be imposed without the need to create a new offence. I take the point that has been made about that. If a new offence were created in this context, the same problems would arise in pursuing a prosecution as arise with existing offences.
My Lords, the amendment we are considering, which was moved so ably by my noble friend Lord Foulkes of Cumnock, would create a specific offence of assault against workers in public-facing roles. Reference has been made to various people who fall in that category such as shop workers, and they also include bus drivers and health workers. The proposed offence would carry a period of imprisonment not exceeding 12 months or a fine not exceeding level 5 on the standard scale.
Reference has been made to statistics provided by organisations such as the Association of Convenience Stores, USDAW and the British Retail Consortium. The latter estimated that 30,000 attacks on shop staff were reported last year. Women comprise a high percentage of staff in shops, and that is the case with a great many public-facing roles. Given that it is their employment, if they see a potential incident arising it is not particularly easy for them to walk away from the scene.
It has been argued that there is no need to create a different category of offence. I think that the issue is fairly clear cut. The noble Lord, Lord Condon, and the noble Baroness, Lady Hamwee, have expressed the same view on this issue and we wait to hear whether it is shared by the Minister. However, I think a lot of people feel that those who are attacked and assaulted in the course of their employment are entitled to greater protection than might be the case in other circumstances.
The current sentencing guidelines for assault indicate that an offence committed against those working in the public sector or providing a service to the public should be regarded as an aggravating factor adding to the seriousness of the offence. However, as has been said, that is just one of a number of possible aggravating factors. There is a wide range under the sentencing guidelines for common assault offences of this kind.
We are also aware that many of these assaults do not seem to be reported where they happen in the course of people’s employment, which is what we are talking about. The survey by USDAW, as I think my noble friend Lord Foulkes mentioned, showed that 17% of retail staff who had suffered a physical assault at work had not reported it as they believed that nothing would be done. There is also a feeling among some employees that many cases which are reported are not prosecuted, even where the assailants are known to the police.
Reference has been made to the separate offences of assaulting police officers in the execution of their duty and, in Scotland only, assaulting emergency service workers. The offence in Scotland in respect of emergency service workers is defined by the Emergency Workers (Scotland) Act 2005 and is, I think, subject to a maximum of nine months in prison or a fine of up to £10,000. Prosecutions using that Act have grown year on year since its introduction. There were 324 prosecutions in 2010-11 and, in total, there have been just over 1,100 prosecutions since the Act came into force, with the implementation of the Act raising the profile of assaults on those who provide emergency services.
The evidence indicates that if we had a separate offence in England and Wales of assaulting public-facing workers—we are talking about people in contact with the public in the course of their employment—with tougher penalties than for common assault, that would increase the likelihood of cases being prosecuted. It would restore what is clearly waning confidence among many public-facing workers that the judicial system will protect them, and it would act as a deterrent, as preliminary evidence from Scotland shows that while the number of prosecutions for assaulting emergency service workers has gone up, the number of such incidents has declined. That suggests that the message may be getting over, but I am afraid that attacking and assaulting people in the course of their employment when they are carrying out that role in direct contact with the public just will not be accepted. There has to be a change in attitude towards assaults of this kind, and I suggest that that can only properly be reflected in making clear that the penalties will be higher than they would be for other kinds of assaults.
The present arrangements in England and Wales do not appear adequate, as assaulting a public-facing worker in the course of his or her employment is not a separate specific offence and is regarded as being only one of a number of potentially aggravating factors relating to the crime of common assault. The result is that such assaults are not regarded as being much more serious than many other assaults in the way that applies, as it should, to assaults on a police officer in England and Wales and emergency service workers in Scotland.
If the Government want to assert that this Bill is about putting the victim first, they should recognise that public-facing workers are all too often victims of assault in the course of their employment, and they should accept this amendment, which creates a separate specific offence, with tougher penalties, for assaults of this kind.
My Lords, I welcome this debate. It is very interesting that the speeches we have heard have all referred to behaviour which the earlier parts of the Bill are designed to address. Often, assaults arise from anti-social behaviour in the first instance. It has been a very useful debate. The Government cannot support the noble Lord’s amendment but perhaps I may explain why. It has been discussed twice in the House of Commons, so it will not come as a surprise to the noble Lord, Lord Foulkes, that I am not in a position to accept it.
I wholeheartedly share the view of noble Lords that assaults on people whose work brings them into contact with the public are unacceptable. I assure your Lordships that the Government take this matter very seriously. The speeches in this debate reflect our equal concern at the large number of assaults on people serving the public.
The Government entirely agree that no one should be expected to face violence in the course of their work, particularly when they are serving the public. We have a wide range of people on whom we depend to deliver services—nurses, teachers, police officers and firefighters, to name a few. Assault is wrong and a crime, whoever the victim. Transport workers and shop workers also form part of our essential infrastructure, as do many others whose work brings them into contact with the public. Staff of small shops may be particularly vulnerable because they may need to stay open long hours to make a profit and may operate with minimal staff. The noble Baroness, Lady Coussins, referred to people who work in the retail drinks industry. It is vital that the criminal justice system treats violence against these essential members of society adequately.
However, I do not believe that changes to the law, or a new specific offence, are necessary to achieve that. The noble Lord, Lord Condon, articulated that view well. I do not consider the proposed changes would mean more prosecutions or warrant the higher sentences which might follow. For example, I think that noble Lords would accept that if someone is assaulted in their own home and must live with the sense of fear and anxiety that that may cause, that, too, warrants a stiffer sentence. Nor do we believe that a higher sentence would necessarily have a deterrent effect. The evidence on that point is decidedly mixed. There is already a range of offences having general application which criminalise violent behaviour, and which would already apply in the context envisaged by this new clause. Further offences would only complicate the law and make prosecution more complex rather than make it more straightforward. I reiterate: assault is wrong, whoever the victim.
All cases referred to the Crown Prosecution Service by the police are considered under the Code for Crown Prosecutors. Under the code, prosecutors must first be satisfied that there is sufficient evidence to provide a realistic prospect of conviction, which I think we all understand. In every case where there is sufficient evidence to justify a prosecution, prosecutors must go on to consider whether a prosecution is required in the public interest, which, again, we would understand. However, the section of the code giving guidance on this public interest test says:
“A prosecution is also more likely if the offence has been committed against a victim who was at the time a person serving the public”.
That is in the prosecution’s guidelines and is an important recognition of the point which the amendment seeks to address. If the evidence is there, and the code is satisfied, the CPS will prosecute.
Finally, mention has been made by my noble friend Lady Hamwee of the sentencing guidelines, which specify that where an assault is committed against someone providing a service to the public, whether in the public or private sector, this is an aggravating factor and so should result in a higher sentence within the current maximum. The Sentencing Council has made clear in its guidance that that phrase includes those who work in shops and the wider retail business sector, which reinforces the way in which the implementation of the law already reflects the concerns of noble Lords on this issue.
I listened to the speeches made by my noble friend Lord Bradshaw, the noble Baroness, Lady Coussins, and the noble Lord, Lord Faulkner of Worcester, as well as the speech made by the noble Lord, Lord Rosser. It has been a useful debate. I intend to draw the attention of the Crown Prosecution Service and the police to the terms of the debate because it reinforces the message that we take this issue seriously in this House as well as within government. With that assurance, I hope that the noble Lord, Lord Foulkes, will be prepared to withdraw his amendment.
My Lords, the one point on which I totally agree with the Minister is that it has been a useful debate. I am really grateful for the eloquent and powerful support that the amendment has received from the noble Lord, Lord Bradshaw, my noble friends Lord Rosser and Lord Faulkner—before he was elevated to his position as Deputy Chairman—and the noble Baroness, Lady Coussins.
I am deeply disappointed that the noble Lord, Lord Condon, who eloquently argued the case that there should be a special offence of assault of a police officer, does not agree that that should also apply to shop workers who are effectively apprehending criminals on behalf of the police. They are doing the same job as the police are doing and ought to have the same kind of treatment.
May I explain that particular discrepancy? We do not ask of people in their normal employment that they place themselves in positions of danger in dealing with potentially violent incidents. We do ask that of the police. That is why all Governments through time have conceded that a special task is imposed on serving officers of the police in the conduct of their duty. That is the reason for that special offence.
But shopkeepers and others are put in the position where they are not able to get away, as my noble friend Lord Rosser said. They are doing this in the course of their duty and their employment. They are apprehending shoplifters. That is what some shop workers are trained to do. They know they have to do that as part of their responsibility. They are doing the work, effectively, of a police officer. We can come back to that.
The Minister said that this has not been agreed on two occasions in the House of Commons so there should be no surprise that he will not accept it here. But this is a revising Chamber. What are we here for if not to consider what comes from the Commons and make suggestions, proposals and amendments? I hope that that argument will not be used completely as a barrier, otherwise we might as well all go home.
My noble friend Lord Rosser underlined this issue when he said again and again that we are talking about people who, in the course of their work, cannot walk away. The noble Baroness, Lady Hamwee, said that she avoided the trains back from Manchester on which there were football supporters because she did not want to be assaulted. With respect, she can avoid those trains, but the workers on those trains cannot avoid them. They have to be there to run the trains and collect the tickets. That is the difference, and I hope that the noble Baroness, Lady Hamwee, who has tabled a lot of amendments to the Bill, will consider that carefully.
Would the noble Lord consider an assault on the noble Baroness, Lady Hamwee, on a train to be less severe than an assault on someone employed to work on the train? In effect, the noble Lord seeks to introduce a special measure for someone who is assaulted in the course of their work. My argument is that assault is wrong; it is a crime whoever is the victim. Let us keep it simple and not complicate this with what people are doing at the particular time they are assaulted.
I am not saying that. It would probably be even more heinous if the noble Baroness, Lady Hamwee, was attacked. However, as she has told us, she can avoid those trains on a Saturday afternoon: the workers on the trains cannot. I do not want to prolong the debate as there are other important amendments.
Having heard the arguments, I am happy, between now and a later stage, to consider, with my noble friends on the Front Bench, the unions and others, what the Minister has said, particularly his helpful point about drawing this debate to the attention of the police and Crown Prosecution Service. The amendment might be revised or, as the noble Lord, Lord Condon, suggested, we might look at narrowing it down to deal with people in particular circumstances. I hope I will have the opportunity to bring it back on Report and test the view of the whole House. Meanwhile, I beg leave to withdraw the amendment.
Amendment 56N withdrawn.
Moved by Lord Rosser
56NA: After Clause 103, insert the following new Clause—
“Control of new psychoactive substances
(1) Any person supplying, or offering to supply, a synthetic psychoactive substance including but not restricted to—
(a) a powder;
(b) a pill;
(c) a liquid; or
(d) a herbal substance with the appearance of cannabis, which is likely to be consumed by a person for the purpose of causing intoxication, will be subject to a synthetic psychoactive product order prohibiting its supply.
(2) Any subsequent breach of that order will be an offence.
(3) A person guilty of an offence under this section shall be liable on summary conviction to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale.
My Lords, Amendment 56NA and the proposed new clause seek to stop the high street trade in what are known as legal highs. Head shops are retailers that have traditionally sold material and devices relating to the cannabis culture. In the past five years, these outlets have mostly diversified their range of products to include legal highs, which are psychoactive substances that have not been assessed for their harms by the relevant authorities and mimic the effects of illegal drugs such as cocaine, cannabis and ecstasy.
It is estimated that there are around 260 of these head shops, located in major cities and some of the more affluent suburbs. A further report has indicated that legal highs are also on sale in such diverse places as shoe repair shops, petrol stations and takeaway restaurants. Since 2009, the volume of trade and number of outlets in the United Kingdom selling new psychoactive substances has risen considerably. There has yet to be any significant legal challenge to their questionable operations, but the current law does not really provide for this eventuality. Local authorities that have attempted to prosecute sellers under consumer protection legislation have failed. To evade prosecution through the Medicines Act 1968, the legal highs are invariably labelled “research chemicals” which are “not for human consumption”.
The Office for National Statistics has estimated that the number of deaths from new psychoactive substances has risen from 29 in 2011 to 52 in 2012. The Scottish Government’s drug-related death statistics estimate 47 legal high deaths in Scotland in 2012. The reported effects vary depending on drug type, but include symptoms such as anxiety, paranoia, delusions, psychotic episodes, irregular heartbeat, chest pains, hyperthermia and seizures. The UN Office on Drugs and Crime estimated the number of young people aged between 15 and 24 in the United Kingdom who have taken a legal high at 670,000 or 8.2%. That figure is the highest in Europe. It is estimated that the number of websites selling new psychoactive substances in Europe rose from 170 in 2010 to 690 in 2012. About half of these are based in the United Kingdom.
Both ACPO and Police Scotland have expressed support for introducing some enforcement measures against head shops. Legal highs often have an inconsistent set of ingredients; there is no regulation on how they are produced and the substances have, in effect, no status. The manufacturers, often in China or India, are always a step ahead of the law and when any temporary ban is signed, new untested drugs with similar properties come on the market within days. However, the reality is that only three substances have been subject to temporary banning orders in the past two years. The European Monitoring Centre for Drugs and Drug Addiction identified 76 new substances in 2012 and the United Nations Office on Drugs and Crime report for 2013 recognised that more legal drugs are available for purchase than are listed in the UN conventions on drugs.
Amendment 56NA is based on the existing Intoxicating Substances (Supply) Act 1985, which prevents the sale of glues and butane to minors. That law has been successful over some years in reducing the number of deaths from volatile substances. Under the provisions in the amendment, a court would issue a civil order against a particular shop, listing the products identified by trading standards officers which appeared to be psychoactive, synthetic and intoxicating, and prohibiting their supply. The amendment specifically excludes medicines, alcohol and tobacco. Any breach of the synthetic psychoactive product order issued to a supplier or retailer would be a criminal offence.
There is a need to act. The sale of dangerous substances in an everyday retail environment has the effect of normalising their use. It encourages experimentation among minors and exposes more vulnerable people to powerful psychoactive substances. The problem with legal highs is that people wrongly believe that, because they are legal, they must be safe, and having the substances so openly available only reinforces that impression. The reality is that the number of head shops is growing inexorably and nothing appears to be currently in place to prevent that continuing —hence the proposed new clause that we are now debating, which will help to check the substantial increase in the number of shops selling these substances and help to cease the trade in untested psychoactive substances in existing outlets.
The second amendment in the group aims to probe the Government about the comparative lack of data on the impact of legal highs. The Government need to do more work to assess and understand the impact of legal highs on the resources of the police, the NHS and other agencies and the link to anti-social behaviour, criminality and drug abuse. The proposed new clause in Amendment 56NB addresses this point by requiring the Secretary of State to carry out a review within 12 months of the Bill passing.
I hope that the Minister, in responding, will recognise that this problem is getting worse. It has not stabilised: it is getting worse and doing so fairly quickly. Although the Minister may well tell us everything that the Government have done—I am sure the Government have been seeking to do things to address the problem—the reality is that whatever the Minister will tell us has been done has not had the impact desired. The problem is growing and we need action now. This amendment constitutes that action and stands a chance of being an effective way of addressing an increasingly serious problem.
My Lords, in speaking to Amendment 56NA, I commend the noble Baroness, Lady Smith, and the noble Lord, Lord Rosser, for tabling it. We need government and, indeed, all political parties to get together to try to create a safer world for our young people while new psychoactive substances are so readily available to them. The amendment has merit on two grounds: first, it seeks to remove these substances from the shop window, as one might put it, which has to be helpful; and secondly, a feature of the amendment is that it focuses exclusively on suppliers and does not seek to criminalise the users of these substances. Those are two important points in favour of the amendment.
However, we need to be aware of some of the potential problems with the amendment. My only qualification for speaking today is that I chaired the APPG inquiry into new psychoactive substances, which received evidence from all the major governmental and non-governmental organisations involved in this field, as well as academics and those working on the front line, who really understand the implications of policies and perhaps their ineffectuality. As a result of that work, I have a number of concerns.
The first is the absence of proportionality or logic in the proposal. We have to accept, albeit reluctantly, that a sizeable proportion of young people will use drugs that may harm them. Our aim must surely be to reduce the incidence of addiction to any dangerous drug and, in particular, to reduce addiction to the most dangerous drugs, whether legal or illegal. We also need to reduce as far as possible the risk of a young person having a single dose of a substance that can cause death or serious injury.
Our drug policies must face reality. We will not stamp out drug use through bans and punishment. Our only hope is to create a rational system which makes abundantly clear to our young people those substances that are seriously dangerous, those that cause medium harm and those with short-term and relatively mild ill effects. We have not even begun to go down the road of proportionality in our drugs policy and, unfortunately, this amendment does not adopt this essential principle. Some other countries have done so, with impressive results, and even the US is beginning to take steps in a rational direction.
My comments on this amendment reflect my increasing conviction of the need for proportionality in our drug policies, combined with extensive information, education, treatment and psychological support for those who need it. Only with such an approach will we have a chance to achieve a safer drugs policy.
We need young people to respect the law. If the law is an ass, young people will get round it or simply ignore it. The amendment does not offer a proportionate response to these substances. There is also a lack of logic in the amendment, if I may put it that way; for example,
“a herbal substance with the appearance of cannabis”,
would be banned under this amendment. Why those particular herbal substances? They may in fact present a far lower risk and be far preferable for the health of young people than legal drugs such as tobacco and alcohol, and certainly the many other drugs that are available.
The Angelus Foundation, the organisation behind this amendment, argues in its briefing that the ban should apply only to synthetic psychoactive substances. It accepts that head shops have sold a number of substances that are non-addictive, do not cause significant social problems or are mild in their effects. It rightly says that such substances should not be caught by this amendment. But why should synthetic substances of similarly low risk and lack of social consequences be banned? Young people will very quickly realise the inconsistency in the situation.
Turning to a different issue, I find myself in agreement with the Home Office concern that the amendment completely bypasses the ACMD—the Advisory Council on the Misuse of Drugs. That august body of scientists should be at the heart of drug policy-making, assessing risks and actually making decisions—if I had my way —on the classes of different drugs. If we had scientists making these decisions, we would arrive at a more sensible set of policies.
Another and quite different concern is that if this amendment were passed it might be seen as a solution to the problem of NPS. Of course, a proportion of these young people will immediately go to the web if they cannot get what they want from the local head shop, and that proportion could be very close to 100%. Young people know all about the web—far more than I do—and it would not take them many minutes to realise that that is all they have to do to get what they want.
A very different question is whether the authors of the amendment explored the implications for research of this measure. Already, serious psychopharmacological researchers are having incredible difficulty obtaining the substances they need to undertake their research.
Also, have those supporting the amendment considered its cost implications? Trading standards representatives who gave evidence to our APPG on Drug Policy Reform made clear that if they are to take responsibility for policing head shops, they will need money to do it. That money has to cover the testing of those substances. It is no good their picking up a substance from a head shop if they have no idea what it is and no money to test it.
In conclusion, I applaud Angelus for its untiring work to try to reduce the access of young people to dangerous psychoactive substances. I welcome the attempt to reduce the risks to our young people of NPS. Whatever is agreed on the amendment, I hope that all political parties will work together to achieve improved policies to deal with the considerable risks presented to our young people by new psychoactive substances.
My Lords, I well understand the concern expressed by the noble Lord, Lord Rosser. For instance, I recognise what I can think of only as collusion between sellers and buyers of substances labelled bath salts, plant food, and so on. The noble Baroness says that this is her only qualification—come on, it is some qualification. We are very lucky to have her explain her point so clearly and, to my mind, so persuasively. As she says, trading standards authorities are as concerned as everybody else and struggling to find a way to deal with this. Has the noble Lord had comments on the proposal from the Trading Standards Institute?
Like the noble Baroness, the points that occurred to me, which I will not repeat but simply support, are: is this risk-based, is it evidence-based, will it bring the law into disrepute, does it recognise the psychology of the consumer? Chemists in China will stay ahead of the game and will use the internet. Of course we have to be smart, but we have to be smart differently, not try to beat them in the way that they are working.
My Lords, the problems of new psychoactive substances are real and perilous. My noble friend Lord Rosser mentioned the number of recorded deaths. It is simple for an organic chemist to synthesise a new psychoactive substance to mimic the effect of a substance that has been banned. We understand that, across Europe, about 250 new psychoactive substances have been introduced in recent years. The Angelus Foundation, which originally proposed the new clause, has counted at least 250 head shops offering to provide such substances on the shopping streets of this country. There are other outlets, as has been mentioned, all of which succeed at the moment in evading existing regulation.
It follows that the buyers of those substances have no information about the composition, toxicity or purity of what they are buying. It is not only from the head shops that those substances can be obtained. Increasingly, they are being bought over the internet. Social networking spreads the news of the arrival of a new substance, and it is not at all uncommon for party invitations, distributed through social networking, to contain links to the suppliers of such substances.
The situation is very dangerous. The substances are cheap to produce and pretty cheap to buy. Sadly, young people are willing to take extraordinary risks with their own health and safety. A survey by Mixmag of club drug users found that no fewer than 25% of respondents said that they were willing to purchase and consume any white powder, unidentified.
The Angelus Foundation is right to have highlighted this issue and to have dedicated itself to improving the education available to people about new psychoactive substances. I pay tribute to Maryon Stewart, who created the Angelus Foundation following the tragic death of her daughter, who had consumed a new psychoactive substance. Maryon Stewart was impressive when she gave evidence to the inquiry which the noble Baroness, Lady Meacher, chaired on this issue.
However, with genuine great respect for the Angelus Foundation, and of course for my noble friends Lady Smith and Lord Rosser, I believe that this proposed new clause is not the right way to approach the problem. Attacking head shops in the way that it envisages might indeed succeed in driving them out of business, but my worry is that it would drive the people who are purchasing these substances into the arms of nastier criminals—into the danger and squalor of engaging with gang-related street dealers in car parks and alleyways. If they are not already using the internet, and I suspect that most of them will be, it will of course drive them into its seductions and dangers, perhaps particularly those of the dark web. The European Monitoring Centre for Drugs and Drug Addiction reported in its 2013 annual statement that it has identified 693 different internet outlets offering new psychoactive substances for sales. Actually, what I think will happen is that the internet will drive the head shops out of business, just as it has driven record shops and book shops out of business. This is not a measure that would enable us to police the net.
The Angelus Foundation has been candid that its purpose in proposing this new clause is to ban the sale of new psychoactive substances but all the evidence from 50 years of prohibition is that banning substances does not stop trafficking in drugs or people using drugs. In fact, it drives innovation; as one avenue is closed, another is opened. Prohibition has been an engine of crime. It has been counterproductive and has produced appalling consequences.
There are also civil liberties implications in this proposed new clause. Since an earlier version was debated in another place, it has been revised to require a lower standard of proof. The proposition is now that if a court is satisfied merely on the balance of probabilities, and not beyond reasonable doubt, it may make an order against a head shop listing products which appear to trading standards officers to be psychoactive and synthetic, and to have been bought for the purpose of intoxication. If the proprietor is unable to demonstrate that that is not the case, he will be liable to a prison sentence of six months or a level 5 fine. It is inconceivable that in this country we should legislate to imprison people because it appears to an official of the state that such and such is the case and the accused is unable to disprove the allegation. We have not seen legislation like this since the days of the Warsaw Pact in eastern Europe. It would be wrong for us to lower our standard of justice.
I am also bemused to note that the expectation, according to the Angelus Foundation briefing, is that consultation should follow once the legislation is on the statute book. That would be Alice in Wonderland legislation. I had not hitherto seen my noble friend Lady Smith of Basildon as the Red Queen, or my noble friend Lord Rosser as the Red King.
The Intoxicating Substances (Supply) Act 1985 is, I suggest, a bad model for legislation to deal with the problem that we are addressing. It was designed to ban the sale of glue or lighter fluid for purposes of intoxication, but we know what glue and lighter fluid are. The very difficulty is that we do not know what these new psychoactive substances are, so how would the court establish the balance of probabilities? Would it be on the basis of guesswork or on the say-so of a trading standards officer? Justice, like policy, ought to be based on evidence. One of the great difficulties that we are facing is that the infrastructure for forensic testing in this country is entirely inadequate. We have not invested as we needed to do in it. That is a point that we made in the all-party group’s report. The result is that the Misuse of Drugs Act 1971, temporary class drug orders and the whole apparatus of the Advisory Committee on the Misuse of Drugs are underresourced and unable to deal with a problem of the scale, complexity and pace of change that we have to deal with in respect of new psychoactive substances.
Therefore, what should we do? I believe that the most promising approach to this very serious problem has been developed in New Zealand. In 2011, the New Zealand Law Commission made recommendations on how to deal with new psychoactive substances. It took the view that universal prohibition would be unacceptable on cultural grounds and inconsistent with the principles of a free society, as well as being impractical. It recommended that a would-be supplier of a new psychoactive substance should have the opportunity, paying for scientific research, to show that the substance would be of limited harm and to seek the approval of a regulatory body to introduce it to the market. They were very specific that no sale should be permitted to minors.
In 2012, the New Zealand Health Minister, Peter Dunne, accepted the recommendations of the New Zealand Law Commission and its Parliament has legislated to create a legally regulated market in synthetic drugs. Having considered the matter, they believed that this was safer than continuing with the dangers of an unregulated market. To date, I understand that 15 new psychoactive substances have been submitted for approval under this process.
I believe that we are driven to conclude that the way to protect our young people and our society as a whole from the dangers of new psychoactive substances is to legalise and regulate them: not the most dangerous of them, but a range of them. This is less dangerous than persisting with a policy of prohibition. The reality is that people are going to get hold of these substances; young people will always experiment, always take risks and always challenge authority. These drugs are dangerous, and it is for that very reason that they ought to be regulated. If a limited range of psychoactive substances—the safer ones—were legally available, with their purity controlled and with trustworthy advice as to their usage, people would be less attracted to taking risks with harder drugs or with unknown, new psychoactive substances. There would be less incentive for producers and retailers to introduce new drugs on to the market.
Of course, as the noble Baroness, Lady Meacher—who is my friend— emphasised, we would need to accompany any such policy with a wholly improved strategy for education and information. To me, it is sad and a real worry that the education department seems to be so largely disengaged from the whole issue of drugs. It lays minimal obligations on schools in respect of drugs education. It shrugs its institutional shoulders in saying that it does not monitor the programmes or resources used by schools in drugs education. We need to do very much better in schools, but the reality is that people who want to understand these drugs will go to websites such as the excellent one created by the Angelus Foundation, whynotfindout.org, or others created by people who are experienced in this field and want to protect people from the harms that drugs may cause, such as DrugScope.
I share the deep alarm that has motivated my noble friends in proposing this new clause and the deep concern of the Angelus Foundation, parents and all of us, but I do not think that this proposed new clause is the right way to go.
My Lords, to explain the background to the comments that I am about to make, as most noble Lords will know I was a police officer for over 30 years and have seen things from the enforcement side. However, a few months ago a former partner of mine in his early 40s, to whom I was still very close, took an overdose of an illegal drug and died. Hopefully, noble Lords will realise that I am not biased one way or the other on this issue, bearing in mind recent events.
Obviously, I welcome the opportunity to debate this issue, and I therefore welcome the amendment tabled by the noble Baroness, Lady Smith of Basildon, and the noble Lord, Lord Rosser. However, I have to agree with the noble Lord, Lord Howarth of Newport, the noble Baroness, Lady Meacher, and my noble friend Lady Hamwee that this is not the way to reduce harm. My professional experience has taught me that young people in particular—though, as I say, my former partner was not particularly young, but then everything is relative—take no account of whether or not a drug is illegal, particularly bearing in mind the discredit that has been cast on the system of drug classification, where very harmful drugs are in a lower category and far less harmful drugs are in a higher one. They certainly do not pay any attention to what class any illegal drug might be. As far as I see it, the evidence that cannabis use has been reducing, for example, is the result of information in the media about potential harmful medical effects of cannabis. That is what has really had an effect on people’s attitude towards that drug, not whether or not it is illegal or indeed what class of illegality it is in.
This is a very difficult issue to deal with. As we know, particularly with regard to legislating, all that the manufacturers do is slightly alter the compound whenever a drug is made illegal, as previous speakers have said. Clearly we need to allow our young people to know exactly what the effects of these sorts of substances are and try to persuade them not to take them, bearing in mind that most young people pay no attention to whether or not they are illegal. We should therefore put far more emphasis on and resources into education and far less into enforcement, let alone into making yet more substances illegal.
My Lords, I welcome this opportunity for debate. The quality of speeches that we have had has shown that the House is good at debating issues of this type; indeed, my noble friend Lord Ahmad took a debate only recently on this subject. It is a good thing that we are reviewing policy in this area. As the noble Lord has explained, these new clauses seek to address the open sale of new psychoactive substances.
I think that the intention of the new clause is to deal with the problem of novelty, and indeed much of the debate has been concerned about novelty and the ability and inventiveness of the producers of these drugs. I will check the wording of the amendment in that regard but, as I am not seeking to make it a part of the Bill, it is not a concern of mine.
Many of these new products are often sold under misleading descriptions but of course are ultimately marketed for the purposes of intoxication, and there are potential harms to our fellow citizens from the fact that they are freely available. The first amendment builds on the provisions of the intoxicating substances supply legislation that previously led to the successful prosecution of a legal high supplier. It is also similar to the legislative proposals adopted in Ireland and Poland. Similar new clauses were tabled by the Opposition in the House of Commons and Jeremy Browne, who was then the Minister responsible for drugs policy, set out the Government’s approach to new psychoactive substances. He also referred to the Home Office’s international comparators study of alternative approaches to drug issues such as legal highs, which we now expect to complete soon to help inform our response.
The Government have been far from inactive in this area of our drug strategy. We are working with the Advisory Council on the Misuse of Drugs, monitoring the emergence of and trends in new psychoactive substances and updating our legislation following advice on the related health and social harms where appropriate. We are also supporting law enforcement agencies to use the full force of the law where officers suspect that head shops are selling controlled drugs or substances containing them. That is often the case because hundreds of these substances are already controlled drugs in the UK.
Last week, we initiated a concerted programme of enforcement activity to disrupt the market in new psychoactive substances, restricting their availability on our streets and targeting the criminals behind the supply of these substances. As part of this, police have been visiting head shops across the country to send out a clear message that so-called legal highs cannot be assumed to be safe or legal. We are also working with prisons to raise awareness of the risks of legal highs with both prisoners and visitors. The UK Border Force and the National Crime Agency are also stepping up action to stop new psychoactive substances at the borders.
The noble Lords, Lord Paddick and Lord Howarth of Newport, originally raised the issue of what we are doing in terms of education. We are doing all we can to inform young people, prevent them from taking drugs in the first place and intervene early with those who start to develop problems. We want all young people to have access to education and information on drugs so that they are aware of the harms and are able to make informed choices and resist peer pressure. The Home Office ran a communication activity from July to October this year which targeted 13 to 19 year-olds contemplating using legal highs, and we are going to consider using similar campaigns in future.
Has the Minister held discussions with his counterpart Ministers in the education department? The evidence given to the Home Affairs Select Committee was that the majority of schools provide drug education only once a year or less. As far as the national curriculum goes, they are required to provide some sort of drug education within the science curriculum, but that is just about it. PHSE has only a toehold in school education. This is not the right way to help young people develop the resilience and capacity to take their own responsible decisions. A great deal more needs to be done in our schools.
I note the noble Lord’s point. I assure him that communication across government on this is very vigorous. I am sure he will agree that schools are not the only place where you can communicate with young people. We live in an age where there may be other less formal ways of conveying this message. I think the Government are right to see issues such as this also in those terms. I hope he will understand that our strategy is multifaceted; it is not just the single point that he made. The legal high trade is very resilient. It is inventive. There is no silver bullet for dealing with it. We need to ensure that whatever we are doing is equally resilient and effective.
The noble Lord, Lord Howarth may have been referring to a meeting of the Home Affairs Select Committee last week, at which my colleague Norman Baker, who is the Minister now responsible for drug policy, advised the committee that he is particularly keen that we look at all the options for tackling new psychoactive substances and to learn from other countries in that regard—the noble Lord referred to New Zealand, for example—and that is what we are doing. However, even though this area is a cause for concern, caution needs to be exercised before we take any further steps. The possible unintended consequences need to be fully understood. That is why I think that the speeches of my noble friends Lady Hamwee and Lord Paddick, along with the excellent speeches from the noble Baroness, Lady Meacher, and the noble Lord, Lord Howarth, demonstrate that they are right to be concerned that the amendment and this new clause are deficient.
With this in mind, the move away from an evidence-based approach to drug harm that Amendment 56NA could imply is not one that the Government can take lightly; I think noble Lords were right to point that out. We are committed—as indeed we should all be committed—to ensuring that our legislative response continues to restrict the supply of harmful new psychoactive substances, both in our communities and online, by providing UK law enforcement with robust and practical powers to tackle this trade.
The Minister said that the way forward is more enforcement. Is he aware of the view of the UK Border Agency, ACPO and others that the legal framework and the enforcement behind it is actually not fit for purpose to deal with the particular problem of “new psychoactive substances”, as they are called—although in fact they are often not new?
Enforcement is, of course, part of the issue. If we decide that we need to restrict the supply, we will need to have the methodologies of enforcement. However, I think that I have made it clear that having evidence and information is equally important to underpin any legislative background against which we are operating. There is much going on in this area and I make a commitment to keep noble Lords informed of developments. With that in mind, I hope that the noble Lord will be able to withdraw his amendment.
I will ask the Minister to clarify one point before I make my main response. Did he say that officers, whether police or trading standards officers, had been going around the country to head shops and warning them of the error of their ways—those were not the Minister’s exact words but that was the general thrust of them—and that those officers were also saying to them that legal action could be taken against them? Or were they just going around and chatting to them, giving no indication at all that they had any powers to do anything?
I am sorry if I misunderstood. I thought that there had been a reference to such approaches being made. I will make one particular point on that, which is really a follow-up to the point that I just made, even if I misunderstood what the Minister had said.
I have come across the point referred to by the noble Lord. The police have indeed been visiting head shops across the country to send out the message that legal highs cannot be assumed to be safe or legal. I think that is a reasonable thing to say. It is part and parcel of the communication that the people who are engaged in this trade need to be aware of their social responsibilities and the legal risk in what they are doing. It is a reasonable task to ask of police, who are enforcing the law in this area.
I have no problem at all with the police going around and doing that. I was asking: if the police are going around doing that—I have no problem with it; it is a good idea and they should be doing it—are they able to say to those they meet who are involved in that particular trade that any legal action can be taken against them?
If the drugs are illegal, clearly that is exactly the position, and that is the point they make. The assumption those people may have, that some of the formulated chemicals that they are selling are legal or safe, may well be wrong. The noble Lord will know that some chemicals on the list of banned substances under recent legislation—last time we brought in 10 proscribed formulations—may well be present in products that those people may not be aware are illegal.
One of the main points is whether those are illegal drugs, in which case action can be taken. That is one of the issues around many of those psychoactive substances. If the noble Lord says that the police are going around and saying that some of those substances may well not be legal, can he tell me whether any prosecutions are forthcoming as a result of those visits?
Certainly, if people were found to be in possession of illegal drugs, an offence would have been committed and the opportunity to prosecute undoubtedly exists. The point is that there are people in this business who assume that what they are doing is beyond the scope of the law. We seek to make sure that they are properly informed of the fact that there is no such hiding place. The law is there to protect the citizen, and the current and future drugs legislation is designed to do just that—to make it clear to them that there is no hiding place for them.
If the Minister had been able to give me some assurance that he felt that action could be taken through the law against people involved in supplying those particular substances, I would feel greatly relieved. However, I have listened to what the Minister has had to say and there have been an awful lot of mays, ifs and maybes, and nothing specific. He is not saying that, as a result of looking at current legislation, the Home Office and the Government are satisfied that action can now be taken under a particular Act. My understanding and the information I have—the Minister may well tell me that I am wrong—is that some local authorities have attempted to take action under existing legislation but have not been successful. However, if the Minister is saying that there is legislation under which we can take action against those people in relation to those substances, I would be greatly relieved. However, I would like to know what that legislation is and what action is being taken.
I promised to keep Peers informed of the outcome of that campaign, and will do so. However, it is quite clear that with some of those psychoactive drugs—I believe that I debated that issue with the noble Lord in Grand Committee, when we passed that legislation—the truth is that people may be dealing in those chemicals who are unaware of the illegality of their actions. I will keep noble Lords informed and I hope that we can move on.
They have access to the means to test the substances, which is a reasonable enough basis on which to alert the people running those premises that they might be dealing in illegal drugs.
We have identified harmful legal formulations. The noble Lord sat with me while we discussed that in Grand Committee. This House has approved statutory instruments that identify those substances. We are quite clear that our war on dangerous drugs will include the restriction of supply of harmful psychoactive drugs. It does that at present and will do so in the future. However, the development that the proposed new clause seeks to put into the Bill takes this further than what we consider to be our current policy. We ask the noble Lord to withdraw the amendment because we are working in that area. My honourable friend Norman Baker is likely to produce his views on this matter shortly. I have committed to informing noble Lords on that basis.
I appreciate the Government’s position, which is that if any of those substances sold contained controlled drugs, they would expect the retailers to be prosecuted. That is what Norman Baker was quoted as saying in the press. However, the issue is that many of the substances involved are not illegal, for all the reasons that we have been discussing. That is one of the reasons why we have the problem that we have. I am aware that the Government are not entirely unsympathetic to the issue of law enforcement, even if there has not been much support for that idea from anywhere else in your Lordships’ House today. I am referring to the Government’s approach, which we are dealing with. When I say “legal enforcement”, I mean as per the amendment that I put forward. I do not suggest that people are suggesting that legal action should never be taken.
In the Written Statement to which the noble Lord recently referred, which was published towards the end of November, he quoted the Minister for Crime Prevention, Norman Baker, who said that the G8 member states had,
“identified a need to speak with one voice to source countries, creating a space for dialogue about substances of concern and pressing for domestic controls in source countries and law enforcement cooperation”.—[ Official Report , 26/11/13; col.
I am not entirely sure what “law enforcement cooperation” refers to, although I am not asking the Minister that now.
I will certainly withdraw the amendment. This has been an interesting debate. I am well aware that I have not had any friends as regards the amendment that I moved. My concern is that there has been a general recognition that there is a problem in this area and that it is getting worse. I do not think that any noble Lord has sought to say anything to the contrary. The real concern must be that we do not spend all our time discussing what to do, not taking any action at all and finding that the problem gets worse and worse, which could happen. Let us hope that that is not the case; I note what the Minister has said about actions they seek to take. I beg leave to withdraw the amendment.
Amendment 56NA withdrawn.
Amendment 56NB not moved.
Moved by Baroness Thornton
56NC: After Clause 103, insert the following new Clause—
“Proxy purchasing of tobacco products on behalf of children
(1) A person commits an offence if he or she buys or attempts to buy a tobacco product or cigarette papers on behalf of a person under the age of 18.
(2) A person guilty of an offence under subsection (1) is liable on summary conviction to a fine not exceeding level 5 on the standard scale.”
My Lords, Amendment 56NC, in the names of my noble friends, makes tobacco proxy purchasing an offence, punishable by a maximum £5,000 fine—the same penalty as for alcohol. It is illegal across the UK to sell tobacco products to anyone under the age of 18. However, it is not an offence for someone to buy tobacco products on behalf of a minor. We believe that that is a significant loophole in our system. Proxy purchasing of alcohol is already illegal across the UK, but that is not the case with tobacco products. That is why we want this to be remedied. Getting someone else to buy on their behalf is one of the chief ways in which young people access tobacco products. Trading Standards has estimated that nearly half, or 46% of underage smokers, regularly get their tobacco from a proxy purchaser. Given the Government’s latest extremely welcome U-turn on plain packaging, I should have thought that the Minister, on behalf of the Government, would be seeking to deal with this issue.
A study in 2011 found that 53% of occasional smokers and 89% of regular smokers had used proxy sales as a means of accessing tobacco in the previous year. Proxy purchasing tobacco is already illegal in Scotland, under the Tobacco and Primary Medical Services (Scotland) Act 2010, and the Northern Ireland Executive are currently supporting an amendment that would ban it there, too. This would leave England and Wales as the only places in the UK where it is still legal. A law to ban proxy purchasing tobacco products for under-18s has already received public support from the Association of Convenience Stores, which says that it is in favour of a ban on proxy purchasing tobacco products to bring the legislation in line with the purchase of alcohol.
It is with some disappointment that, during a debate in the tobacco products directive, Jane Ellison, Parliamentary Under-Secretary of State for Health, said:
“Many children who smoke get their cigarettes from friends and family, and from other children who share cigarettes in parks and playgrounds. An offence of proxy purchasing would be unlikely to stop family members or friends giving cigarettes to young people”.—[Hansard, Commons, 28/10/13; col. 736.]
We disagree with her; we think that the evidence clearly reflects that tobacco proxy sales are a means for under-18s obtaining cigarettes and then, as we know, becoming addicted at that young age. That is why we have tabled Amendment 56NC.
Tobacco proxy sales pose a significant problem. They have a harmful impact on the health of those under 18, for the rest of their lives. We urge the Government to consider our amendment and make proxy purchasing tobacco products on behalf of children an offence, as Scotland has and Northern Ireland is considering doing. I beg to move.
My Lords, I apologise that I was not present for Second Reading and ask for the forbearance of noble Lords in my intervention at this stage to support my noble friend’s amendment. However, my support comes with a heavy health warning about effective surveillance and enforcement. As president of the Trading Standards Institute, I am aware of this significant problem. As so many thousands of young people experience their first steps down the road to smoking addiction, as my noble friend said, it is through that means that that addiction starts.
Any move to tackle proxy sales of tobacco would get the full support of the trading standards profession, but proper enforcement and adequate surveillance is a great concern to it. A recent study of proxy sales of tobacco found that there was a strong desire from business representatives—and my noble friend referred to this—to see legislation implemented. The Robinson and Amos study of 2010 of young people’s sources of cigarettes and attempts to circumvent underage sales laws concluded that, while there was indeed a problem, more detailed research was needed before further action was taken. It was suggested that regular national smoking surveys should include questions that could capture more accurately the nature and extent of proxy purchases. I feel that this is somewhat cautious, given what we know from a number of surveys about the danger that young people are placed in by this activity. However, I would appreciate the Minister’s views on the suggestion of a more consistent way in which to survey the problem.
While the Demos think tank report that was out last week, called Sobering Up, studied the very real issue of underage access to alcohol and street drinking, and involved working with Kent trading standards officers, the read-across to tobacco is obvious. Even with legislation, enforcement is the key. The report recommended tackling the growing problem of proxy purchasing through greater community policing of the offence and tougher punishments for those caught. Of course, we are aware that there is an offence of proxy sales of tobacco in Scotland, with fixed penalty notices for both the purchase of tobacco by a young person under the age of 18 years and, separately, for the proxy purchase of tobacco on behalf of a person under 18 years. In Scotland, from April 2011, for the purchase of tobacco by a person under 18, the fixed penalty is £50 and the penalty on prosecution is up to a £200 fine. Also from April 2011, proxy purchases carry a fixed penalty of £200 and up to a £5,000 fine for a penalty on prosecution.
What research have the Government carried out into the effect of this new legislation in Scotland on proxy sales purchases so far? While many of us have anecdotal evidence, we are now two years down the road from the introduction of this Scottish legislation, and I think that noble Lords who want to support this amendment would agree that government has the provision and means to come up with far more structured evidence. I know that the Scottish legislation is still embedding itself; the Scottish Government’s request is for a softly-softly approach to be taken, especially with the introduction at the same time of the display and vending machines ban this year. But the aim, certainly, of trading standards in Scotland is to work in partnership with retailers to increase compliance with the new law. I am grateful to Veronica McGinley, the trading standards officer for Renfrewshire Council for her thoughts on the Scottish experience so far.
It has been emphasised to me that there are, of course, real personal safety risks attached to this type of sale, so we are not simply talking about young people’s health but their personal safety. In Renfrewshire alone, the recent Scottish Adolescent Lifestyle and Substance Use Survey found that 54% of 13 year-olds and 55% of 15 year-olds reported getting someone else to buy their tobacco for them. More frighteningly, in the case of 35% of 13 year-old regular smokers, this was most likely to be from an adult unknown to them.
While supporting moves to legislate in principle, we have to be aware that the enforcement of much tobacco control legislation, including the current age of sale, is the responsibility of local authority trading standards officers. There has been a great deal of talk about trading standards officers. I do not think—my noble friend is no longer in his place—that they would necessarily see themselves as cold war warriors: they are very much into partnership and encouragement these days. However, enforcement is extremely challenging given the massive reductions in staff and budgetary allocations that trading standards departments have faced in the past three years up and down the country. We have heard very recently of a local authority which has proposed reducing its trading standards department by 80% over the next two years. This is very serious if we are talking about the proper enforcement of serious legislation. The requirement also for a Regulation of Investigatory Powers Act authorisation in each case may pose a significant barrier to the testing and enforcement of future legislation. Can the Minister say what further assistance the Government envisage in terms of resource allocation to local authorities in the enforcement of this proposed legislation and, indeed, of current legislation? My noble friend made a robust case for introducing these new offences into the Bill and I look forward to the Minister’s reflections.
My Lords, I thank both noble Baronesses who have spoken on this issue. I was slightly surprised to see this amendment as it is something that perhaps has been, and no doubt will be, considered in debates on the Children and Families Bill. There was also last Thursday’s Urgent Question, but that was more specific on the issue of standardised tobacco packaging, which I am sure the House will deal with in its own way at the appropriate time.
We in this Committee and in the wider House can all agree that it is wrong for people to buy tobacco on behalf of children and young people; that was a point well made by the noble Baroness, Lady Thornton. We totally acknowledge that smoking is an addiction which unfortunately begins largely in childhood and adolescence, with peer pressure, friends or whatever encouraging people to take it up. Almost two-thirds of current and ex-smokers in England say that they started smoking regularly before the age of 18.
Part of our comprehensive tobacco control plan for England, which was published in 2011, was therefore focused on reducing the numbers of young people taking up smoking. The plan also includes a national ambition to reduce smoking among young people in England to less than 12% by 2015. As a result of decades of tobacco control, rates of smoking among young people have reduced considerably to around 10%, according to the most recent figures. I am sure that we have all noticed the practice of reducing smoking and prohibiting it in places such as restaurants.
I remember as a child seeing smoking on trains and undergrounds, which we would be appalled by in this modern age. Restricting and prohibiting smoking has led to a reduction of it in society in general.
However, the take-up of smoking by young people continues to be a problem. It is estimated that more than 300,000 young people under the age of 16 in England try smoking for the first time each year. Reducing access to tobacco by children and young people remains a high priority for the Government and we are determined to reduce further the smoking rates among young people.
As for the sale of tobacco, we know that the majority of retailers are law-abiding and conscientious in how they conduct their sales. I acknowledge the important role they play in ensuring that legitimate tobacco products are sold in accordance with the law, including by being rigorous in refusing sales to young people under the age of 18. I realise that this can be difficult and I understand why some noble Lords and some retailers feel that it should be an offence to buy tobacco on behalf of under-18s. However, as the noble Baroness, Lady Crawley, said, we need to consider carefully whether creating a new offence of proxy purchasing is the right way forward at this time.
The supply of tobacco to children and young people is not a straightforward issue. A new offence of proxy purchasing would not necessarily tackle the wider problem of the supply of cigarettes because children and young people get them from a range of sources, not just from retailers. For example, many children and young people who smoke obtain their cigarettes from their parents or other members of the family—it is tragic but it does happen—or from friends or people they may socialise with who are over the age of 18. Buying single cigarettes in the school playground happens in certain parts of the country. A proxy purchasing offence would do nothing to stop these issues.
We also need to look at the practicalities of enforcing a proxy purchasing offence. Enforcement of most tobacco control legislation, including the current law on the age of sale, is—as the noble Baroness, Lady Crawley, pointed out—the responsibility of local authority trading standards officers. On the previous amendment my noble friend Lady Hamwee asked whether the Government have been speaking to the Trading Standards Institute. The Trading Standards Institute is broadly supportive of any measures to limit access to tobacco by young people. However, it has also told us that the experience of enforcing the proxy purchasing offence for alcohol suggests that it would be difficult for a similar offence for tobacco to be applied effectively. Enforcement would be resource-intensive for local authorities, particularly because of the burden of proof that would be required for a successful prosecution.
There are already considerable pressures on local authority trading standards officers and it can be difficult to prove the offence of proxy purchasing. Effective enforcement requires surveillance of shopper and retailer behaviour and is time-consuming. However, when this issue was debated recently in the other place, my colleague the Minister for Public Health, Jane Ellison, said—and I repeat that offer—that she would be happy to hear the views, as she said, of Members, and I am sure of all noble Lords, about the local authorities they are dealing with on this issue, particularly on the issue of enforcement.
I can assure noble Lords that the Government are not complacent about smoking by young people. I will give some examples of the actions we are taking. Since April 2012, supermarkets can no longer have permanently open displays of tobacco products; and in April 2015 this will apply in all shops and anywhere else selling tobacco to the public. Tobacco can no longer be sold from vending machines in England. This has removed an easily accessible source of underage sales. It was estimated that in England about 35 million cigarettes were being sold to people under the age of 18 every year from vending machines. We also continue to run hard-hitting marketing campaigns, including Stoptober. In June and July 2013, we ran a television-led marketing campaign to encourage smokers to protect their families, particularly their children, from second-hand smoke by not smoking in the home or family car. Since January, we have distributed more than half a million Quit Kits—our local stop smoking services are among the best in the world. Smokers trying to quit do better if they use these kits. To discourage smoking, we have some of the highest priced tobacco in Europe and will carry on reviewing our tax policy in this regard. Of course, we fully support the smoke-free legislation passed in the Health Act 2006, which is proving to be both popular and effective in reducing smoking-related illnesses.
The noble Baronesses, Lady Thornton and Lady Crawley, both referred to Scotland. A proxy purchasing offence has been in place there since 2011. I assure noble Lords that we are keeping a close eye on how this is being implemented. It is one of a number of changes made as Scotland brought in its registration scheme for tobacco retailers. The Scottish Government, who we have talked to about this issue, say they do not currently hold any information about the numbers of convictions or, as yet, any evaluation of the effectiveness of the new offences. As I said, however, this is an open and live dialogue. The noble Baroness, Lady Crawley, also talked about resources. She is right to raise this issue, but it is very much a matter for local authorities to decide what resources they wish to put into enforcing trading standards.
Finally, while the Government want to take all appropriate action to ensure that cigarettes do not reach those under the age of 18, we remain to be convinced that a new offence of proxy purchasing is, in itself, the answer to stopping smoking by children and young people. This issue is driven primarily by the effectiveness of enforcement. Having illustrated some of the initiatives we are taking, and restated that we wish to hear about the experiences and ideas on how this matter can be tackled of all who are concerned about this issue, I hope that the noble Baroness is minded to withdraw this amendment.
The noble Baroness is right to raise that issue. As someone who worked in local government for 10 years, I am aware of the budgetary challenges faced by local authorities, irrespective of which Administration is in control centrally, and they need to establish priorities. The noble Baroness made an important point about enforcement. If this were to be made an offence, we would need to consider how it would be enforced. Even if a local authority took it upon itself to increase its number of trading standards officers to enforce this measure, it would be very difficult to do so given all the retail outlets that would need to be monitored. It is important to see what happens in other parts of the country, particularly in Scotland. We have an open door on this issue. If local authorities come up with a good initiative, I hope that they will share it with us so that it can be replicated across the country.
I thank the Minister for his reply and I particularly thank my noble friend Lady Crawley for her contribution. As the Minister is a fairly recent newcomer to tobacco issues and I am not, I gently say to him that all the initiatives he mentioned were introduced by the previous Labour Government in the teeth of great opposition from the Benches opposite, if not from those to the left. We are pleased that those initiatives are being carried through, including the introduction of plain packaging—there is absolutely no doubt about that at all. However, the arguments that the Minister has deployed on proxy purchasing are the same ones that the Conservatives have deployed in all the discussions we have had about tobacco regulation over the many years that I have dealt with the issue. It was argued that because one initiative would not solve the whole problem it should not be introduced. We know that making it an offence to proxy purchase tobacco products on behalf of children is not the complete answer—of course it is not—just as we know that plain packaging is not the complete answer, and just as we know that covering up tobacco products in supermarkets is not the complete answer. We know that the provision we are discussing is not the complete answer. However, that does not mean that it is not important to consider it.
I am pleased that the Minister said that the door was open on this issue. Perhaps I may push at that door a little and say that if this amendment is not acceptable to the Government, perhaps they need to consider taking a power to introduce an offence of proxy purchasing at the next stage of the Bill, which can then be implemented in due course. That might resolve this problem. I hope the Government will think about that between now and the next stage of the Bill. I beg leave to withdraw the amendment.
Amendment 56NC withdrawn.
Clause 110: Regulations to be prepared or approved by the College
Moved by Lord Ahmad of Wimbledon
56P: Clause 110, page 81, line 37, leave out “and (7)” and insert “, (7) and (10)”
My Lords, Clause 110 provides the legal basis for the College of Policing to set standards for the police in England and Wales. This is the first of a number of provisions relating to the college and I think it would be helpful to explain some of the context for them.
The ability of the police to fight crime depends, for the most part, on the skills and abilities of the brave men and women who serve as police officers and police staff. As I glance around the House, I note several noble Lords who can speak with great experience and expertise of that area. The threats police officers and police staff must deal with on a daily basis are significant. Neither the Government nor the police can afford to neglect training and development. To do so jeopardises the safety of all our communities.
The arrangements this Government inherited were insufficient. Although the National Police Improvement Agency had responsibility for police training, its remit was too broad and its work too complex for it to deliver effectively for the police and the public. Given the severity of the threat the police and public face, the Government believe that a more focused set of arrangements are required. Part of those requirements involves the creation of the professional body for the police—the College of Policing.
The College of Policing’s mission will be to support the fight against crime and protect the public by ensuring professionalism at all levels in policing. It will do this through delivery in five core areas of responsibility. Those areas include: setting standards of professional practice; accrediting training providers and setting learning and development outcomes; identifying, developing and promoting good practice based on evidence; supporting police forces and other organisations to work together to protect the public and prevent crime; and identifying, developing and promoting ethics, values and standards of integrity.
The Government intend that the creation of the college should cement the status of the police as a profession. As a profession, the police will need to take greater responsibility for setting standards. Too often, those standards have been led by government. Clause 110 changes this balance. The clause provides that in future regulations regarding rank, qualifications for appointment and promotion, service on probation and personal records for police officers and special constables will be prepared by the college. The college will also prepare regulations relating to training for police officers and qualifications for deployment to particular roles. Finally, if the college believes it to be necessary, it can also prepare regulations regarding police practice or procedure.
As my right honourable friend the Home Secretary will continue to make these regulations and will continue to be accountable to Parliament for them, she will retain a right of veto. This power will be exercised if the regulations prepared by the college would impair the efficiency and effectiveness of the police, would be unlawful, or would for some other reason be wrong. This final power of veto may be used where the regulations as drafted are flawed, insufficiently clear or do not achieve the policy intention that the college hopes to achieve. In such circumstances the Home
Secretary could ask the college to prepare a fresh draft of the regulations so as not to present flawed regulations before Parliament.
As I am sure noble Lords are aware, the Delegated Powers and Regulatory Reform Committee has commented on this clause. Indeed, it has issued an additional report which was published only this morning. The Government are most grateful to the committee for both its reports and we have already dealt with a number of amendments that implement its recommendations. As with its other recommendations, we have given careful consideration to the committee’s points about the delegation of the Home Secretary’s regulation-making powers as provided for in Clause 110.
The Government agree with the committee that regulations made under Section 53A of the Police Act 1996, governing the practices and procedures of police forces, should be subject to the affirmative resolution procedure in all cases. Police practice and procedure are matters of legitimate public concern. We all have an interest in the way that police officers go about their duty and it is only right that Parliament is able to scrutinise the work of the college in this area.
The Bill proposes to give the college two powers regarding standards of police practice and procedure. First, it proposes to give it a power to issue statutory codes of practice under Section 39A of the Police Act 1996. In the event that the college exercises this power, chief constables must have regard to any such code. Secondly, the Bill proposes to give the college a power to make changes to police regulations concerning practice and procedure. The Government believe that, in the event that the college wishes to make matters of police practice or procedure mandatory, Parliament should have the opportunity to debate and approve such regulations before they come into force. We have accordingly put forward Amendments 56P and 56Q.
However, in respect of regulations under Sections 50 and 51 of the Police Act 1996 and Section 97 of the Criminal Justice and Police Act 2001, the Government believe that the negative resolution procedure should continue to apply. These regulations relate to limited aspects of the governance, administration and conditions of service of police forces and to police training. These are more akin to regulations on pay and discipline, which are subject to the negative resolution procedure. There is no need for regulations prepared by the college to receive an enhanced level of parliamentary scrutiny when regulations made under the same powers on matters of at least equal significance, such as police pay, do not. Moreover, there may be occasions where such regulations need to be made quickly, and the application of the affirmative procedure would preclude that.
The Delegated Powers Committee was particularly concerned about the regulation-making power in Section 53A of the 1996 Act. We believe that making those regulations subject to the affirmative procedure largely addresses that concern.
The Government have always been clear about the importance of the College of Policing being independent of central government. The Government have taken a number of decisions that have allowed the college to operate independently since its creation, and we will work with the college to explore its longer-term ambition of securing a royal charter. However, there are several steps to be taken before active consideration can be given to helping the college to succeed in that aim. In particular, the college needs to reduce its reliance on central government for funding, raising more of its revenue itself through trading.
Although the college is independent, the Government believe that there are some areas where it should be accountable to Parliament. I have already spoken about the role that Parliament will play in the event that the college chooses to exercise the powers that the Bill proposes to confer on it regarding police regulations. I should now like to spend some time focusing on another area where I believe there should be increased scrutiny by Parliament: the college’s ability to charge fees.
As noble Lords will be aware, the college already has the powers that it needs to trade through its existence as a company limited by guarantee. However, Amendment 56QZA extends the college’s accountability to Parliament for some of the products and services that it will sell which may be considered services of a public nature. The proposed new clause would allow the Home Secretary to specify the categories of such services in secondary legislation—for example, examinations for sergeants and inspectors. As with the provisions relating to the standards that the college will set, this provision will continue to remain in place even if the college succeeds in its aim of gaining a royal charter. This amendment would ensure that there was proper ministerial and parliamentary oversight of the college’s charging framework. It would also ensure that the college was able to develop commercially so that it could thrive as the independent professional body for the police.
For the reasons I have set out, I commend Clause 110 and these amendments to the Committee.
I gave notice of my opposition to the Question that Clause 110 stand part, and I did so for probing purposes. I am still not clear that the Government are fulfilling the recommendations of the Delegated Powers Committee. I accept that the Minister addressed himself to the first report of the committee but I think I am right in saying that it is very unusual—it may never have happened before—that the Delegated Powers Committee has twice recommended to the Government that regulations should be subject to the affirmative procedure, and I should like clarification on that.
Clause 110 amends provisions which confer these powers to make regulations relating to the police. I listened to what the noble Lord said but I am not completely clear that the regulations will be subject to the affirmative procedure. In paragraph 5 of its report produced today, the Delegated Powers Committee said that,
“we remain of the view that, if the House considers it appropriate to transfer control of the content of the regulations to the College of Policing, the regulations should in all cases be subject to the affirmative procedure”.
I am still not sure whether that is the case. If I am right that the Government have made some regulations subject to the affirmative procedure but not these, then that is a cause for some discussion and concern. If I am wrong, I apologise to the Committee.
Secondly, I seek some explanation of the wording that has already been referred to by the noble Lord. In new subsection (2ZA) introduced under Clause 110(1), paragraph (c) says that,
“it would for some other reason be wrong to do so”,
in relation to the Secretary of State’s right of veto. Therefore, the Secretary of State is giving with one hand and taking away with the other. My honourable friend David Hanson raised the same question in the House of Commons. It seems contradictory, and I should like the Minister to explain to the Committee why the Government reached that view.
I want to make one other point in relation to the noble Lord’s final remarks. He said that the College of Policing will be subject to further scrutiny concerning its fees and other matters, as well as its financial and commercial viability. I just want to ask how on earth the Minister thinks that being accountable to Parliament for one’s financial and commercial viability will work.
My Lords, regarding the noble Baroness’s first set of questions, she is indeed correct. I mentioned that the Delegated Powers and Regulatory Reform Committee had issued a second report. She quoted from paragraph 5 of that report. Earlier on in that paragraph, the committee says:
“The Government have accepted this recommendation in so far as it relates to regulations under section 53A of the Police Act 1996”.
I believe that that was very clear from the points that I made. She then asked which regulations remain under the negative procedure, and perhaps I may expand on that a bit more. We have said that in respect of regulations under Sections 50 and 51 of the Police Act 1996 and Section 97 of the Criminal Justice and Police Act 2001 the Government believe that the negative resolution procedure should apply, and I shall expand on that.
These regulations relate to limited aspects of the governance, administration and conditions of service of police forces and to police training. Clearly, as I said earlier, these matters do not have the same level of sensitivity and public interest as police practices and procedures. During debate on an earlier amendment, the noble Baroness referred to the fact that she has been in your Lordships’ House far longer than I have, and I am sure she can relate to the fact that no regulations have been made in relation to training since Section 97 of the 2001 Act came into force and that the existing regulations under Sections 50 and 51 of the 1996 Act concerning ranks, appointments, promotion and personal records have been the subject of limited and infrequent amendment.
These essentially administrative matters are more akin to regulations on pay and discipline, which are also made under Sections 50 and 51 of the Police Act 1996, and are subject to the negative resolution procedure. There is no need for regulations prepared by the college to receive an enhanced level of parliamentary scrutiny, when regulations made under the same powers on matters of at least equal significance, such as police pay, do not. The negative procedure has worked effectively for many years on all these issues without any difficulty. It seems right and proportionate to maintain those uniform arrangements going forward. That does not of course mean that we cannot rule out the possibility that the regulations might need to be made quickly. Therefore, the affirmative resolution procedure would make that more difficult. Typically, that would occur in response to some unforeseen emergency, a change to our international obligations, a court decision that existing regulations are unlawful or the discovery of some error in the regulations that requires particular correction.
The noble Baroness also talked about my right honourable friend the Home Secretary retaining the power of veto for any other reason and the reasons for that. The information on when it may be wrong to make regulations for any other reason are set out in the Explanatory Notes, to which I refer the noble Baroness. It covers circumstances in which the regulation, as drafted, is not sufficiently clear, as I said earlier, is flawed or would not achieve the policy intention for which the college had hoped. In such circumstances the Home Secretary could ask the college to prepare a fresh draft so as not to present flawed regulations before Parliament.
In proposing what they are, the Government have struck the right balance, which ensures sufficient scrutiny by Parliament and supports oversight by the Home Secretary, if required. I commend the amendment to the Committee.
Amendment 56P agreed.
Moved by Lord Taylor of Holbeach
56Q: Clause 110, page 81, line 37, at end insert—
“( ) in subsection (9), for “the first regulations to be made” there is substituted “regulations”.”
Amendment 56Q agreed.
Clause 110, as amended, agreed.
Clauses 111 to 113 agreed.
Moved by Lord Taylor of Holbeach
56QZA: After Clause 113, insert the following new Clause—
“Charging of fees by the College
After section 95 of the Police Act 1996 there is inserted—
“95A Charging of fees by College of Policing
(1) The College of Policing may charge fees for providing services of a public nature only if—
(a) the services are of a specified description and are provided with a view to promoting the efficiency, effectiveness or professionalism of the police, and
(b) the fees are of a specified amount or are determined in a specified manner.
(2) In this section “specified” means specified in an order made by the Secretary of State.
(3) A statutory instrument containing an order under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament.””
Amendment 56QZA agreed.
Clause 114 agreed.
Clause 115: Disclosure of information to the College
Debate on whether Clause 115 should stand part of the Bill.
My Lords, I am taking this opportunity to ask the Minister, who knows about my question, whether Clause 115 has the effect which it seems to me to have. The new section which is to be inserted into the Police Act will provide for powers to anyone to disclose information to the College of Policing where this is,
“for the purposes of the exercise by the College of any of its functions”.
Will the Data Protection Act be overridden in its entirety by this provision? What checks, possibility of challenge and possibility of complaint will there be? Is there any proportionality, propriety and so on? I am sure that I will be told that there is a difference between the college’s functions and its powers but I am not clear about the extent of this clause, which seems to be very wide.
I take it that my noble friend’s comments primarily were probing. Clause 115 provides the basis of information-sharing agreements between individuals and the College of Policing. In order for the college to fulfil its objectives it will need, from time to time, to have access to certain information. This information could cover a range of issues, including information about data in support of its work on the effectiveness of policing practice, data to inform the standards it sets for police officers and staff, and information that will help it produce the standards of ethics and values for the police. For example, as part of the college’s work to develop standards and ethics for the police, it may need information from the IPCC about its investigations and some of the lessons it has learned from the conduct of police officers. This information will be general and it should not be necessary for the IPCC to share information that would enable the college or its staff to identify individual police officers. I hope that noble Lords agree that it is important for the IPCC and other public authorities to have a clear legal power to share this valuable information with the college.
Noble Lords will be aware that public authorities can act only within the scope of the powers given to them by legislation. It is therefore necessary for them to have clear statutory powers to share information. This clause will ensure that every organisation that would not otherwise have the power to disclose information to the college has a power to do so. However, it does not absolve those organisations, or the college, from their legal duties in relation to the sharing of information, which was a particular issue that I raised vis-à-vis the Data Protection Act. The Data Protection Act provisions on the processing of personal data, the right to privacy under the European Convention on Human Rights and the common-law duty of confidentiality are not affected by this clause.
This enabling power ensures that organisations which may wish to share information with the college are able to do so. We have not specified those organisations or the information that they may need to share in the Bill. We want the college, working together with the police, to determine how it can best deliver its objectives. That should include allowing it the freedom to identify the organisations with which it will work and how it wants those organisations to support its delivery. This clause will enable the college to do so successfully. In that explanation, I hope that I have addressed the questions raised by my noble friend and, if she is satisfied, that noble Lords will agree that the clause stands part of the Bill.
Of course, at this stage I am probing. Anything more comes later. I understand to an extent the purpose of the clause, which is to give powers. Perhaps it is a failure of my imagination but I am not clear as to what sort of information the college might require to be disclosed. I will look at what my noble friend has said. As I have said, this seems to be a very wide clause. I will have to do some work on this after today but I am not clear on how the restrictions to which my noble friend has referred would work in this connection. For the moment, I am left with one question. Has the Information Commissioner specifically been consulted about this clause?
I suggest that between Committee and Report I meet my noble friend to address her specific concerns, which I hope will help with clarity and understanding at the next stage.
Does the noble Baroness agree that it might be helpful if the Minister, in writing to her, sets out a precise list of what is required and explains why it would not be possible for that list to be laid in regulations so that it is clear what information is being referred to? The way in which it is written at the moment seems extraordinarily broad.
While inspiration may be somewhat limited, I take on board the noble Lord’s suggestion. As I have said, I will suggest a meeting to address some of the concerns.
Clause 115 agreed.
Clauses 116 to 118 agreed.
Schedule 6 agreed.
Clause 119: Consultation about regulations: England and Wales
Moved by Baroness Hamwee
56QZB: Clause 119, page 87, leave out lines 12 to 18
My amendment, which is probing at this stage, would remove the provision whereby the duty on the Secretary of State,
the matter is so urgent that there is not enough time, or the nature of the proposed regulations makes it unnecessary to undertake that. The duty is to “consider” advice rather than consult, so perhaps the message goes out but one does not wait to receive responses.
In my mind, this boils down to hours, leave and pay. What can be so urgent about these matters that the Secretary of State should not have to undertake process? If they are minor, the SSRB and the PRRB can say so. Indeed, if they are urgent, the two bodies could say, “We appreciate the urgency but we simply do not have time to deal with this”. The provision in new Section 52A(5) is a check on the Secretary of State, so I am concerned that it may be sidelined. The other amendments in this group are with regard to the Northern Ireland Secretary and the Department of Justice in Northern Ireland. I beg to move.
My Lords, I thank my noble friend for the opportunity to address this important safety mechanism in the functioning of the Police Remuneration Review Body. The provisions that my noble friend’s amendment would delete from the Bill are intended to be used in only two instances. The first is if a matter is so urgent there is not enough time for the Secretary of State or the Northern Ireland Minister of Justice to consult the review body, which is of course not in constant session. To illustrate that, the Government have in mind a time of national emergency—for instance, ongoing, widespread rioting, or co-ordinated terrorist attacks across the country, or even, because we must always plan for every eventuality, at a time of war. There might be, for example, an alternative process for arranging officers’ shift patterns, or officers might be called to take on special duties that we could not foresee but which might be critical to the national response to an emergency, and for which we would want them, rightly, to be compensated.
Secondly, the provisions that my noble friend has drawn to our attention are intended to be used in situations where it would be unnecessary to consult the review body on a matter. For example, if a minor drafting error in the regulations needed to be corrected it would be inefficient and unnecessary to have to consult the Police Remuneration Review Body before correcting the error. Similarly, if there was an uncontroversial change to employment law that did not automatically apply to police officers by virtue of their unique employment status, of which noble Lords will be aware, we would want to amend regulations to reflect this change in the law without reference to the review body.
We added this power specifically in response to comments by policing partners, including the Police Federation and the Police Superintendents’ Association, that they would be concerned that not being able to make police regulations without reference to the body, in certain circumstances, could actually make the system more cumbersome. We believe that this provision addresses that concern.
I should conclude my comments on this proposed amendment by noting that in all cases, regardless of whether the review body is consulted or not, a draft of the proposed changes must be supplied to all interested parties before any changes are made, and this includes the opportunity for interested parties to make any representations. Therefore, neither the Secretary of State nor the Northern Ireland Minister of Justice would ever make changes to police officer remuneration in a vacuum, and would always have the input of representatives of police officers and those responsible for maintaining police forces. I hope in the light of my explanations that my noble friend will be able to withdraw her amendment.
My Lords, it is helpful to have that explanation on the record. On the point about hours, leave and so on in the event of a national emergency—I believe that “national emergency” is being used in a rather non-technical, wide sense—I had assumed that the terms and conditions of the regulations already allowed for the flexibility needed for the circumstances referred to by my noble friend. That is no doubt naivety on my part. As to whether something is necessary, I simply say that it can be a matter of judgment. That is why I thought it was important to understand what was meant here. I beg leave to withdraw the amendment.
Amendment 56QZB withdrawn.
Clause 119 agreed.
Clause 120: Consultation about regulations: Northern Ireland
Amendments 56QZC and 56QZD not moved.
Clause 120 agreed.
Moved by Baroness Doocey
56QZE: Before Clause 121, insert the following new Clause—
“IPCC: requirement to carry out investigations
In section 10 of the Police Reform Act 2002 (general functions of the Commission) after subsection (2) there is inserted—
“(2A) In carrying out its functions in subsection (1)(a) with regard to investigations under subsection (2)(c), the Commission shall ensure that the majority of investigations are conducted by the staff of the Commission.””
My Lords, in moving this amendment, I shall speak also to Amendments 56QZF and 56QZG. The object of these amendments is to strengthen the independence and transparency of the IPCC. They would do so by increasing the proportion of independent investigations carried out by the IPCC, reducing the proportion of IPCC investigators who are former police officers and requiring the IPCC to report annually to Parliament.
Amendment 56QZE would require that, in the case of serious complaints, the IPCC would carry out the majority of investigations itself. To maintain the culture of policing by consent, there must always be an effective response to valid complaints and the public rightly expect independence and transparency in the investigation of such complaints. But last year, just one in 17 of the serious cases referred to the IPCC resulted in an independent investigation. I am sure that that is not what Parliament intended when the IPCC was set up, nor will this approach maintain public trust and confidence.
The House of Commons Home Affairs Committee considered the work of the IPCC on two occasions, most recently in January this year. Its report highlighted concerns about the independence of the IPCC’s investigations and the impact on its work of a high caseload and restricted resources. The IPCC has itself accepted that it must take on more independent investigations, and the Government have assisted it to do so by providing additional funding. Can the Minister indicate how much additional money it is to receive? The amendment seeks to ensure that, in future, the majority of serious complaints are independently investigated by the IPCC.
Amendment 56QZF addresses the problem of the number of IPCC investigators who are former or seconded police officers. This practice leaves the IPCC open to the charge that, even for the most serious complaints, it is actually the police investigating the police. The amendment would limit to just 25% the proportion of IPCC investigators who come from a police background. It would also prohibit the appointment of any former police officer to the important post of director of investigations of the IPCC.
The IPCC’s own annual report for 2011/12 reported that all of its senior investigators, plus half of its deputy senior investigators and one-third of its investigators, are former police officers or police civilians. For the investigation staff as a whole, the proportion coming from a police background was reported to be 43%. Furthermore, the IPCC’s current director of investigations is a former Metropolitan Police commander. This is a very significant post which requires absolute independence. I acknowledge that these former police officers bring valuable experience and skills to the job but, unfortunately, they also compromise the IPCC’s independence.
The additional funds that are to be given to the IPCC should enable the recruitment of new investigators from different disciplines outside policing. While the IPCC might need the skills of former police officers in the short term, the need to employ them should be greatly reduced in the long run. The amendment accordingly proposes that not more than one-quarter of IPCC investigating staff should have a police background and that it should be led by a director of investigations who does not have such a background. The amendment sets a deadline of
Amendment 56QZG is intended to maintain the drive for independence in the IPCC by improving its reporting requirements. The Police Reform Act 2002 already requires the IPCC to make an annual report to the Home Secretary on the carrying out of its functions during the year. The amendment would require the IPCC to also report to Parliament on moves to strengthen its independence. This would include the volume of independent investigations carried out, the number of investigators employed who have not served in the police, any other work to strengthen the IPCC’s independence and any changes to its responsibilities during the year. The amendment would ensure that greater exposure to the work of the IPCC is achieved through the mechanism of clear, annual reporting requirements. I beg to move.
My Lords, I am grateful to the noble Baroness, Lady Doocey, for tabling this amendment. I have put my name to it because I want to probe the Government on their exact intentions and the timescales for the changes and improvements to the IPCC that the Home Secretary has announced. I note with interest that this debate is now being observed by four former Commissioners of the Metropolitan Police. I cannot recall a previous instance when all four have been in the Chamber simultaneously and, as a consequence, I suspect that the Minister ought to be afraid, very afraid, about either this amendment or a subsequent one.
We need to consider this important amendment—and I look forward to the ministerial response—because it goes to the core of how we can have confidence and trust in the police service. The public want to be satisfied that, when things go wrong, their concern has been properly investigated in an independent, thorough, robust and timely manner. If it is a serious matter which may lead to criminal charges, or dismissal of officers or whatever else, that process must be above rebuke and there must be no question of bias or anything else.
I have a lot of confidence in the chair of the Independent Police Complaints Commission, Dame Anne Owers, who is working very hard to improve the capacity and capability of the IPCC. The Government, having initially not quite recognised the importance of this body, have now changed their position but we need some clarity on how quickly things are going to move. Having trust in the processes followed by the IPCC is a necessary component of having trust in the police themselves. Whether or not the police have the consent of the public is called into question unless the public can have confidence that their complaints are being investigated adequately and independently.
These amendments would, first, ensure that most investigations—particularly serious ones—are carried out by staff who are not, nor have ever been, police officers themselves. Secondly, they reduce the number of investigations delegated to another police force or to the police force itself under investigation. Thirdly, they ask the IPCC to report regularly on its progress. However, we have heard that the Home Secretary intends to increase the resources available to the IPCC. As I understand it, it is not intended to transfer officers from police forces into the IPCC but to give them new resources. What are the timescales for these changes? What do the Government expect to see happen? Do the Government accept the principle that the proportion of investigations carried out by people who have not previously been police officers should increase?
There is a general belief that, when it is a serious matter, things are swept under the carpet and I am afraid that some recent revelations and crises have not helped this. It is therefore important that clarity is given and that people have confidence that this is not just about the police investigating themselves. Noble Lords in this Committee may be very clear that this is not about a police officer who knows the individual under investigation and who is therefore investigating their mate’s performance. At the moment, the IPCC has all sorts of measures in place to avoid that being the case, but the public perception is that complaints are being investigated by current or former police officers and it is assumed that the police are investigating themselves. This amendment is important because we need clarity that there is genuine independence, and that those concerned are not former police officers who, it may be asserted—probably wrongly—know the individuals or are part of the same culture about which someone has complained.
The Minister will, no doubt, have a whole series of technical points on why this amendment is not quite right or does not work. He does not: that is even better. We can agree it tonight and that will be very good. It is important to understand the direction of travel, how quickly we are moving there and how we will see the sort of independence which will give confidence in the complaints process and, in turn, enable the police to move back to a position of public trust.
My Lords, during my time as commissioner, I argued strongly for a fully independent and well resourced police investigation process. I have maintained that position since my retirement and I entirely support the motivation behind these amendments. However, I have concerns that Amendment 56QZF, in particular, is too prescriptive in the timescale available and that the notion of having 75% of investigators with a non-police background by January 2017 might, perversely, have the reverse effect of its intention. If it is a prescriptive requirement to get to that point, it may be tempting to employ people as investigators who are not adequately trained or have the right background to investigate these most serious and complex allegations. While admiring the intentions behind these amendments, I have concerns about the practicality of the timescales. I urge caution about such a prescriptive requirement.
My Lords, I will add to the comments of previous noble Lords in support of my noble friend Lady Doocey and the noble Lord, Lord Harris, of Haringey. As I said earlier, 30 years’ experience in the Metropolitan Police left me wondering whether the Independent Police Complaints Commission was truly independent. We have seen recent cases where the IPCC has not only apparently not been particularly independent but has not understood when a case is serious. It was only after officers had given evidence to the Home Affairs Select Committee about the meeting between the former Chief Whip and Police Federation officers that the IPCC decided that the case was serious enough to take on as an independent investigation rather than referring it back to the police to investigate themselves.
Another less well known case is that of former officers in the Metropolitan Police who have complained about the way in which the Directorate of Professional Standards conducted an investigation against them.
A complaint made to the IPCC was referred back to the Directorate of Professional Standards in the Metropolitan Police for it to investigate itself, which does not give much confidence to members of the public that things are being independently investigated. Clearly, having a former constable as the director of investigations—somebody who is controlling how investigations are carried out—does not appear to me to inspire confidence in the public that the IPCC is independent.
I agree with the noble Lord, Lord Condon; bearing in mind that he used to be my boss, it would be rude of me not to agree with him, and I notice nods from the other former commissioners who are in their place. However, I will say that I spent 15 years in uniform and was made an instant detective chief inspector overnight, such was the need at a certain time in the history of the Metropolitan Police. I received a visit some weeks later from my detective chief superintendent, who said, “Now you know what the secret is”—that there is really nothing much to being a detective.
I agree that the timescale set out in my noble friend Lady Doocey’s amendment may be ambitious but it is something that we need to aspire to in order give the public confidence. I am sure that there are people in other walks of life, such as former customs officers, who have not only the skills but the experience to investigate these sorts of issues. People who have not had previous experience of investigations could be given the necessary training to carry out effective investigations into alleged police malpractice.
My Lords, I apologise to my noble friend Lady Doocey for not being present for the first minute or so of her speech. She caught me out by moving faster than I anticipated and I apologise, too, if she made this point, about the general reputation of the police service. I have some past experience, as a member of a police authority for some six years and then as constituency Member of Parliament. I had to deal with not only the police service but occasionally of course, unfortunately, with the IPCC as well.
The police service itself would welcome a greater sense of independence from the IPCC because there is a perception—we all know in politics that the perception is very often more important than the reality—that there is an overcosy relationship between the police service and the IPCC that is almost incestuous. The case that has been made on all sides of the Committee for reinforcing the IPCC’s degree of independence is extremely important, not just for the reputation of the IPCC itself but for the overall reputation of the whole police service, which, as we all know today, is questionable. It is sad to say but, for those of us who rate the police service very highly and have a great respect for it, its reputation for integrity is not as great as we would like it to be. There would be support from within the service for a greater sense of independence between the IPCC and police officers themselves. On that basis, I hope there will be a very sympathetic response from the Minister.
Before that, having listened to the noble Lord, Lord Paddick, I will say that I now envy my noble friend Lord Condon as I, too, was the boss of the noble Lord, Lord Paddick, and he did not stop disagreeing with me.
The 75% figure represents a very noble direction of travel. That is what we need to get to, but getting to it in three years will water down the IPCC’s skills and potentially damage its reputation. In particular, I take issue with something that the noble Lord, Lord Paddick, said about the skills of senior and other investigators. All three of the commissioners on this particular Bench, and, I am sure, the noble Lord, Lord Imbert, will recognise the skill needed to be a senior investigating officer leading a major inquiry into police corruption or malfeasance. It needs the skills of somebody who has led serious investigations into something else before. The skill set is just not out there among people who are not police officers—there are very few investigative agencies with the level of skill to lead that complex an inquiry. We must not set targets here that end up damaging the ability of the IPCC to carry out independent investigations.
My Lords, I will just add my comments to those of my noble friends Lord Condon and Lord Blair and the noble Lord, Lord Paddick. Obviously, the Independent Police Complaints Commission should be independent, and noble Lords may be aware of the views of the commission that I chaired recently on the combination of the inspectorate and the Independent Police Complaints Commission itself. Putting that aside, it was fascinating to take evidence from the head of the IPCC, Anne Owers, and to see her recently for a couple of hours to talk about issues and realise how underresourced she is. Credit must be given to the Government that they have recognised that.
Along with my noble friends Lord Condon and Lord Blair, and my old colleague, the noble Lord, Lord Paddick, I just call for a little caution. Having led inquiries in difficult places such as Northern Ireland for 15 to 20 years, I know that you need the experience and the expertise. The noble Lord, Lord Harris of Haringey, is absolutely right that the IPCC has to be seen to be independent, but let us gradually work towards that. To train people up to the required level takes an awful lot of experience. In addition, this is not just about training but about having your feet on the ground, understanding how the systems work, building up a team and delivering something that is useful to the police service and, more importantly, to the complainant. Noble Lords should make no mistake about it: the IPCC needs support, needs resources and needs reforming. It has a massive job to do and I would not like to see it have the rug drawn from underneath its feet in terms of experience and delivery.
My Lords, I will be very brief. I, too, thank the noble Baroness, Lady Doocey, and my noble friend Lord Harris of Haringey for tabling these amendments. Clearly, their principal purpose is not so much to be specific but to provide the welcome opportunity to hear from the Minister what the Government’s future intentions are in relation to the
IPCC, particularly concerning its independence. Very important comments were made by the noble Lords, Lord Blair and Lord Stevens, about the need to ensure that there are suitably qualified people within the IPCC to carry out the investigations that are needed. We, too, hope that the Minister will be able to indicate how the Government see the future of the IPCC, in particular what changes and objectives they are seeking for the IPCC in the years ahead.
My Lords, when we discussed police integrity last Thursday, I felt that there was a degree of unanimity in the House. In the debate that we have just had on these amendments, there was also a degree of unanimity, certainly with regard to the direction of travel that we want to see the IPCC adopt. We had a very good debate last week, initiated by my noble friend Lord Paddick, and I am grateful to my noble friend Lady Doocey for the contribution she made to that debate, and for tabling these amendments today.
As the noble Lord, Lord Harris, and my noble friend Lord Tyler said, we need to address perception as well as reality. The IPCC confidence survey reported that 85% trusted it to handle police complaints impartially but we cannot be complacent in our drive to rebuild the IPCC as a truly independent body.
In connection with Amendment 56QZE, noble Lords will be aware that the Government are transferring resources to the IPCC to enable it to undertake all serious and sensitive investigations—an intention that is entirely consistent with my noble friend Lady Doocey’s amendment. An announcement will be made shortly, in line with the police annual settlement process, on the level of those resources. I can assure noble Lords that the expansion of the IPCC is on track and it will begin to take on more cases from next year.
However, in requiring the IPCC to carry out “the majority of investigations”, the amendment does not specify the nature of those investigations. My noble friend Lady Doocey talked about serious investigations and that is probably what she intends the amendment to deal with. Of course, some complaints made against the police are best dealt with at local level. We will still have the police investigating the police at a local level; for example, where it is a matter of service levels or a lack of civility. But I think we can all see that with the more serious investigations the IPCC must independently be in a position to investigate those matters.
As a Lincolnshire man, I am finely tuned to poachers and gamekeepers. As regards Amendment 56QZF, I note that my noble friend and the noble Lord, Lord Harris, are anticipating our direction of travel. I appreciate that the requirement for the director of investigations to be someone who has not held the office of constable in the United Kingdom would seem to provide a stronger guarantee of independence. However, I question how the public’s best interests would be served by the IPCC having to dismiss someone who currently performs this function effectively and impartially; indeed, I am doubtful whether this would even be possible under current employment law.
I am with the noble Lords, Lord Condon, Lord Blair and Lord Stevens of Kirkwhelpington, on this issue. We need a skills base within the IPCC if it is to be able to perform the task we expect of it. Similarly, the target—and it is a target, even though the Government have all but forsworn targets—of at least 75% of those employed as investigators by the IPCC being from non-police backgrounds by January 2017 is intended to address concerns about impartiality.
However, this amendment overlooks the steps the IPCC has already taken to ensure a diverse and multidisciplinary staff, and the training scheme aimed at those from a range of backgrounds. It is worth noting that according to the latest published figures, the proportion of investigatory and caseworking staff with a background in policing is below 16%. Of course, what is most important is the way in which all IPCC staff work and their commitment to the values and culture of the organisation. I am sure that the noble Lords, Lord Condon, Lord Blair and Lord Stevens of Kirkwhelpington—and, I hope, the noble Lord, Lord Imbert—share these sentiments. It is good to have such a distinguished group of former Met commissioners participating in this debate. I am sure they will agree that it is the culture of the organisation that dominates the way in which it responds to its independent role.
Moving to Amendment 56QZG, I can see that for the Home Secretary to receive annual figures on the proportion of staff from non-police backgrounds, and the number and nature of their investigations, would provide a degree of detail and certainty as to operational conditions within the IPCC. However, the commission already has a statutory duty to report to the Home Secretary on the carrying out of its functions each year. It already publishes details of the organisation and its investigations in its annual report and in annual statistics. I can see no benefit from prescribing the content of the annual reports in the way that the amendment seeks to do. Indeed, it might be suggested that that is not a very independent thing for the Independent Police Complaints Commission to be asked to do. I know that is not what my noble friend intends but it would certainly add to the bureaucratic burden of the organisation.
Having said that, I agree with my noble friend that the IPCC must be independent and be seen to be independent. In the light of my comments, I hope that she will feel able to withdraw her amendment.
My Lords, as the only other former commissioner here, I feel that I should add my support to their concern about the date.
I have often been told that the best way to catch a slippery officer—one who is corrupt, rude or has no integrity and lies—is to set an experienced, crafty detective chief superintendent, who is honest and full of integrity, to catch him. He knows the moves that that corrupt officer is going to take. It is this experience that I fear we will lose, but we must, in order to show the public that the IPCC is absolutely independent. I agree with the points that have been made about that, and with the noble Baroness, Lady Doocey.
However if we put that date on it, I fear that the IPCC, in its endeavours to get to the position where 75% are non-former constables of the United Kingdom—I hope that that means anywhere, including Australia, Canada, America or wherever—may well select people, whether ex-Customs, military or whoever, who do not have the experience or the time to train properly to catch a corrupt police officer. The date is far too soon. Let the IPPC select people who will make first-class investigators; let us not rush it, please.
Before my noble friend responds, perhaps I may add to the list of things that she might want to mention. As I understand it—I would be interested to know whether I read this correctly—my noble friend seeks a spread of experience. Points can be made about the date and the percentage, but what is important, apart from independence and the perception of independence, is that good practice—there is a lot of it among the police, but it is not confined to the police—could be spread to the non-police investigators and, conversely, that experience from elsewhere might be shared with those who have that professional background.
The last time that I took even the slightest issue with the noble Lord, Lord Stevens of Kirkwhelpington, somebody said to me, “Watch it, they’ll all have your car registration number”. However, I drive so slowly as perhaps to be a problem in that way.
We are trying to get to a good mix. Nobody exclusively has the right experience or the right way to approach these matters.
My Lords, I thank the Minister—my noble friend the listening Minister—for his positive response. I confirm that I was referring to serious cases —he was right about that—not the cases that should rightly be dealt with at a lower level. I apologise to the House if I did not make that entirely clear.
I am delighted that the Minister has confirmed that, in future, all serious cases will be investigated independently by the IPCC. That is very important. Everyone who has made comments agrees that it is important that the IPCC is not just independent but seen by the public to be to be independent. We can all agree on that.
However, I am concerned about the issue of a date. To me, the words “direction of travel” mean, “Kick it into the long grass”. It would be sad if that happened. I understand the experience of noble Lords who have spoken, and it may well be that the date that I chose is too soon, but there must be a date as a cut-off point. If there is not, it could go on and on; that would be very wrong. We must deal with this issue of the perception of the police investigating the police. That will continue as long as the vast majority of investigators are former or seconded police officers.
Having said that, I have no desire for the IPCC to lose very good officers who are doing a very good job and who have experience. The issue is not to throw the baby out with the bath water. There is time for us to modify my proposal, which the noble Lord, Lord Harris of Haringey, has agreed that we should do. With that in mind, I beg leave to withdraw the amendment.
Amendment 56QZE withdrawn.
Amendments 56QZF and 56QZG not moved.
House resumed. Committee to begin again not before 8.35 pm.