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Amendment 28

Air Traffic Management and Unmanned Aircraft Bill [HL] - Committee (2nd Day) – in the House of Lords at 4:30 pm on 12th February 2020.

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Lord Rosser:

Moved by Lord Rosser

28: Schedule 8, page 66, line 24, at end insert—“Annual statement on stop and search demographics2A(1) The Secretary of State must, at the end of the period of 12 months beginning on the day this Act is passed, lay before both Houses of Parliament a statement setting out how many times the police have exercised the stop and search powers under paragraph 2 of this Schedule.(2) The statement must include a list of each incident broken down by protected characteristics of each person searched, as defined in section 4 of the Equality Act 2010.(3) The Secretary of State must lay before Parliament a report in similar terms covering each subsequent 12 month period, within six months of that period ending.”Member’s explanatory statementThis amendment would require the Secretary of State to publish details of the demographics of those who have been stopped and searched.

Photo of Lord Rosser Lord Rosser Shadow Spokesperson (Home Affairs), Shadow Spokesperson (Transport)

My Lords, there are three matters in this group: Amendments 28 and 29 and whether Schedule 8 should stand part of the Bill. I shall address Amendment 28. Paragraph 2 of Schedule 8 sets out the powers of a constable to stop and search persons or vehicles and includes the conditions that have be met in order to do so. This amendment would require the Secretary of State to publish details of the demographics of those who are stopped and searched. The purpose of the amendment is to find out what the Government intend in this regard.

The amendment refers to the Equality Act 2010 and the nine protected characteristics: age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race, religion or belief; sex; and sexual orientation. At Second Reading the Government said that stop and search demographics would be available for those subject to a stop and search under these powers, and that

“they will be published by the Home Office in the usual way.”—[Official Report, 27/1/20; col. 1295.]

What does “published by the Home Office in the usual way” mean in relation to this amendment and the nine protected characteristics under the Equality Act 2010?

How did the Government come to the decision to enact these stop and search powers under Schedule 8? In autumn 2018, the Home Office ran a public consultation on

Stop and Search: Extending police powers to cover offences relating to unmanned aircraft … laser pointers and corrosive substances.”

The Government indicated in the Explanatory Notes to the Bill, if I have read them correctly, that responses to the consultation were broadly unsupportive of proposals relating to unmanned aircraft, with many respondents feeling that the intrusive nature of stop and search powers would be disproportionate to the likely threat.

Since that consultation, we have had the incident at Gatwick Airport at the end of 2018. Following that incident, in response to the consultation, the Home Office committed itself to developing a stop and search power for offences related to flying an unmanned aircraft in the flight restriction zone of a protected aerodrome. The Home Office also indicated its intention to keep the further expansion of stop and search powers in relation to other unmanned aircraft offences under review.

The Bill now provides the police with the power to stop and search any person or vehicle, subject to certain conditions. At Second Reading, in response to the point that the Home Office consultation was completed before the Gatwick incident, the Minister said:

“I reassure noble Lords that we have of course been in touch with members of the police force around Gatwick and, indeed, all over the country to make sure they are content with the powers in the Bill. We believe that they are. We have a close relationship with them, so they have been involved since Gatwick in making sure these powers are appropriate. Of course, we still meet with the police and other stakeholders to discuss these matters in general.”—[Official Report, 27/1/20; cols. 1291-92.]

Bearing in mind that, in the public consultation prior to Gatwick, responses were broadly unsupportive of proposals on stop and search powers in relation to unmanned aircraft, were any meetings or other forms of contact had with those who had been broadly unsupportive of the proposals, to check that their views had changed since the Gatwick Airport incident? Did the Government make an assumption that views would have changed, or did they not intend anyway to take any notice of the broadly unsupportive responses to the stop and search proposals, so that it did not really matter whether views had changed as a result of the Gatwick incident? A government response on this would be helpful.

The second item in this group relates to Schedule 8 standing part. I want to talk about paragraph 5(11) of Schedule 8, which inserts a power at new subsection (4B) into Section 93 of the Police Act 1997. This enables the Secretary of State, by regulations, to add or remove an offence from the definition of “relevant offence” set out in subsection (4A), also inserted by this Bill. Paragraph 5 of Schedule 8 deals with

“authorisations to interfere with property” or interference with wireless telegraphy. This is a Henry VIII power. In their memorandum to the Delegated Powers and Regulatory Reform Committee, the Government said that it was necessary to ensure that the list of relevant offences remained up to date

“if the evolution of technology results in unmanned aircraft being used in new or different types of offence.”

I note that they used the word “if”, not “as”, in relation to the evolution of technology; clearly the Government do not actually know whether they will need this power to add, by regulations, additional or even completely new offences.

In the same memorandum, the Government say:

“The power to interfere with property or wireless telegraphy is a significant power which entails the possibility of interferences with, for example, people’s property rights.”

Further on, the Government refer to

“any expansion of the power to interfere with property and wireless telegraphy”.

Yet the Government want to have this “significant power” and this “expansion of the power to interfere” with “people’s property rights” by adding additional new offences that they do not know they will need and appear unable to describe, and to do so not by primary legislation but by regulations that cannot be amended.

Even though the Government do not know whether they will need the power to add new offences by regulations, their case for wanting this not inconsiderable power is that

“otherwise it could be necessary to regularly introduce new primary legislation each time an offence is created”.

I hope the Government can provide a rather more convincing explanation of why this power to add new offences, unknown in both content and number, by statutory instrument rather than by primary legislation is deemed so crucial, and indeed unavoidable, as opposed to simply suiting the administrative convenience of the Government of the day.

I may well be wrong, but the provisions of Schedule 8 on the power of a constable to stop and search people or vehicles appear to cover the suspicion of not just serious crime but non-serious crime. Is that the case? If so, could the Government indicate in specific terms the lowest level of offence or suspected offence against which the stop and search powers in Schedule 8 could be exercised by a police officer?

The final item in this group is Amendment 29, which is about police and prison resources. It proposes a new clause that would require the Secretary of State to prepare and publish a report on whether the police and prisons are sufficiently resourced to carry out the new functions in Schedules 8 and 9 to the Bill. Introducing the Bill at Second Reading, the Government said, and this is a fairly long quote but it is about the additional powers that the police will have:

“The police will be given the necessary powers to require an unmanned aircraft to be grounded, to stop and search persons and to enter and search premises under warrant. They will also be given powers to: require a person to produce documentation or evidence of the permissions or exemptions required under the ANO 2016, such as permission to fly in the flight-restricted zone of a protected aerodrome; require a person to produce evidence of remote pilot competency and operator registration … and issue a fixed penalty notice for less serious unmanned aircraft-related offences. The Bill will also enable interference with property or wireless telegraphy in order to prevent or detect certain offences involving the unlawful use of unmanned aircraft.”—[Official Report, 27/1/20; col. 1268.]

The Bill also provides powers to address the issue of drones being used to smuggle drugs, weapons, mobile phones and tobacco into prisons. It is clear from that that the Bill places additional powers and responsibilities on the police in particular but also on the Prison Service. In her letter of 4 February 2020, the Minister acknowledged that questions had been raised at Second Reading about police resources. She said in her letter that

“Government, primarily through the Home Office, are working closely with the Police to ensure they have access to the people, technology and powers needed to combat the threat of malicious drone use”,

and that

“development of new training and guidance to support police officers is already underway.”

Could the Government say what the additional cost will be of ensuring that the police have access to the people, technology and powers needed, and whether that additional cost includes the training and guidance to support police officers that is already underway? Could they also say roughly what percentage of police officers would require access to the people, technology and powers needed, and what percentage of police officers will require the training and guidance referred to in the Minister’s letter of 4 February 2020? The letter also referred to

“new tactical advisors or subject matter experts to support officers’ decision making across the United Kingdom”.

How many such tactical advisers will be needed, and will they be new permanent posts or simply existing posts renamed?

Finally, what additional training and resources will be provided to the Prison Service arising from the provisions of the Bill? This is not just about what resources the Government currently think the police and Prison Service will need when taking on the functions in Schedules 8 and 9, it is about whether that assessment proves to be correct so that we do not end up with the police, in particular, being even more stretched; hence the reference in my amendment to the Secretary of State’s report being published within 12 months of Section 12 coming into force. I beg to move.

Photo of Baroness Randerson Baroness Randerson Liberal Democrat Lords Spokesperson (Transport) 4:45 pm, 12th February 2020

My Lords, I support the noble Lord’s comments, particularly in relation to Amendments 28 and 29. Our experience of the use of stop and search powers over the years has revealed that the police have to perform a very careful balancing act in their use of those powers. The idea of ensuring that they are looked at carefully after a period of time would therefore certainly assist in avoiding the misuse of powers.

This is particularly complex because the leisure use of drones is about a lot more than a group of people standing in a field and having a little fun. There are a lot of brilliant commercial uses of drones, along with some very important uses by the military and in our emergency services generally. But there is a complex, unofficial use of drones nowadays and it is not all innocent fun. They are widely used in the drugs trade. It is therefore important that the use of stop and search powers is exercised with a view to looking at potential criminality, beyond whether a drone is being used in the wrong place or flown too high and so on. However, that has to be done proportionately and carefully. Our experience over many years in this country is that there is nothing quite like a little transparency in the way in which a power is exercised, to ensure that it is done properly and fairly.

I support Amendment 29, too, because of the obvious fact that the Prison Service is greatly overstretched. It can be argued logically that if you used these resources to control the misuse of drugs in prisons, you would actually make the life of the Prison Service rather easier. Unfortunately, when a service of any kind—we have had this all the time with the NHS—is as badly stretched as the Prison Service, it has a hand-to-mouth existence. It is very important that the impact of this additional responsibility is looked at carefully in the months following the introduction of these powers.

We will investigate a lot of other issues in debating the next group of amendments, which emphasise the complexity of the situation now with drugs. However, the two amendments in this group draw out two important threads.

Photo of Baroness Vere of Norbiton Baroness Vere of Norbiton Parliamentary Under-Secretary (Department for Transport)

I thank the noble Lord, Lord Rosser, for introducing this group of amendments, which gives us the opportunity to discuss the stop and search powers and the resourcing of police, and to dip our first toe in the water on delegated powers.

We recognise that stop and search is a significant power and that it is essential that we use it appropriately and proportionately. The noble Lord, Lord Rosser, rightly recognised that the consultation on the use of stop and search for drones reported before Gatwick. Therefore, the powers in this Bill were included as a result of a significant amount of consultation after Gatwick to make sure that we got it right. Since that consultation concluded, officials have had various meetings with stakeholders to discuss the consultation response both within and outside government. Those consulted include the Ministry of Defence, the Ministry of Justice and BEIS, as well as the National Police Chiefs’ Council and CT Policing. The Department for Transport has also met groups such as BALPA and the Guild of Air Traffic Control Officers, who in general support the police powers proposed in the Bill.

It is important that the powers be used only where proportionate, so there are a number of limits in the Bill. In the first instance, a constable must have grounds for suspecting that they will find an unmanned aircraft or something associated with an unmanned aircraft, such as a controller, and that the unmanned aircraft or article has been involved in the commission of one of the offences specified in the Bill. I shall send the schedule to noble Lords.

Photo of Lord Campbell-Savours Lord Campbell-Savours Labour

The Minister referred to BALPA. Is she saying that BALPA has expressed no reservations whatever about the police powers?

Photo of Baroness Vere of Norbiton Baroness Vere of Norbiton Parliamentary Under-Secretary (Department for Transport)

I am not aware that BALPA has any reservations about the stop and search powers under discussion.

Photo of Lord Campbell-Savours Lord Campbell-Savours Labour

So it has no reservations.

Photo of Baroness Vere of Norbiton Baroness Vere of Norbiton Parliamentary Under-Secretary (Department for Transport)

I am afraid that I cannot recall exactly what BALPA’s reservations are—whether it has reservations about other police powers—but it was certainly one of the stakeholders that we spoke to regarding stop and search. As a consequence of the conversations that we had, we believe that introducing the powers in this Bill is proportionate and appropriate.

The more serious offences that could be liable to stop and search go towards the higher end of the penalty range and might involve transferring articles into or out of prisons et cetera. The Bill also sets out further conditions that need to be met. For offences that could be considered less serious, the conditions are more stringent. For example, in relation to Article 95 of the Air Navigation Order, flying a small unmanned surveillance aircraft too close to people, or Article 239(4), flying within a prohibited area, where it is more likely that somebody has committed an offence unintentionally —which again goes back to proportionality—stop and search can be used only where there are reasonable grounds to suspect that the commission of an offence using an unmanned aircraft or associated article was for one of the following purposes: endangering an aircraft, which I think noble Lords would all agree should be top of the list; causing any person harm, harassment, alarm or distress; undermining security, good order or discipline in any prison or institution where people are lawfully detained; damaging property, or threatening national security. So, there are many offences where stop and search does not apply—for example, Article 94, including flying beyond visual line of sight without permission and flying commercially without permission. Here, stop and search would not be applicable.

We also recognise that it is very important to minimise the potential for discrimination in the exercise of police powers. In addition to the limitations written into the Bill, the conduct and recording of the Bill powers will be subject to Sections 2 and 3 of PACE, for which there is already guidance for police in Code A, the code of practice for police in the exercise of statutory powers of stop and search. Code A will apply to the Bill powers to ensure that they are being exercised appropriately.

Transparency is important. The Home Office already publishes national statistics on police powers and procedures annually, including on the use of stop and search powers. It is our intention that the use of stop and search powers under the Bill will be incorporated as one or more datasets in that report. This will help us to ensure that the data is collected in one place in a manner that is consistent and therefore comparable to the exercise of stop and search powers under other legislation. We will look to add this data to the next round of the annual data requirement—ADR—collection from April 2021.

I turn to Amendment 29 and the report on police and prison resourcing. During the drafting and preparation of the Bill, officials in the Department for Transport worked very closely with the Home Office, the police and the Ministry of Justice to obtain operational advice and ensure that the powers contained in it can be effectively utilised. Following this involvement, the Government do not expect the burden on the police as a whole generated by these new powers to be significant. The Counter-Unmanned Aircraft Strategy, published in October 2019, committed to a new national police counterdrone unit. The Home Office has already committed £1.28 million to the police to develop this unit, which will provide a national capability to respond to unmanned aircraft incursions.

The Government are also working with the police to ensure that the new counterdrone unit has access to the people, technology and powers it needs to combat the threat of malicious unmanned aircraft use. The unmanned aircraft elements of the Bill are key to this, but ensuring an effective response is not just about establishing a new national capability, although of course that is part of it. As unmanned aircraft become part of everyday life, countering the threat from unmanned aircraft must become part of day-to-day community policing. As such, the counterUAV strategy commits to the provision of new training and guidance for police officers. The police have existing mechanisms with the Home Office to ensure that they have sufficient resources to deliver what is required without the legislative requirement to report this.

Turning to prisons, over the last few years, prisons in England and Wales have made considerable improvements to their security regimes and have been given funds to invest in a range of technologies to stem the flow of contraband entering them. Currently, the industry that provides counterunmanned aircraft measures that would be appropriate for the needs of prisons is very small, but we are looking into it and it is evolving rapidly. The provisions of the Bill will allow prisons to make use of counterunmanned aircraft measures in future. Future investment will allow us to evaluate this sector and invest where appropriate. Any additional investment would then be reflected as expenditure in Her Majesty’s Prison and Probation Service’s published annual report and accounts.

Turning to Schedule 8, the delegated powers contained in paragraph 5(11) were noted by the noble Lord, Lord Rosser. I shall open the discussion about delegated powers by putting on record that the Government have very carefully considered all the delegated powers in the Bill, and we are satisfied that their use is necessary and justified. Every effort has been made to limit the number and the scope of the delegated powers in the Bill, and they have been included only where it is not appropriate or practical to make provision in the Bill itself. A full explanation and justification of all the delegated powers in the Bill is set out in the published delegated powers memorandum and I encourage all noble Lords to read it if particular concerns still exist. The Delegated Powers and Regulatory Reform Committee published its report on the delegated powers in this Bill on 21 July. I was delighted to see that it concluded that there was nothing in the Bill which it wished to draw to the attention of your Lordships’ House.

Each of the Bill’s Henry VIII powers has been included only when absolutely necessary, and often the reason for using a Henry VIII power has been to ensure that the Bill’s provisions remain fit for purpose in light of future legislative and technological developments such as developments in drone technology. The department has carefully considered the parliamentary procedure for all the Bill’s Henry VIII powers to ensure that they receive an appropriate level of scrutiny.

The delegated power mentioned by the noble Lord, Lord Rosser, contains a power for the Secretary of State to make regulations to amend the list of relevant offences in relation to which a chief constable or other body listed in Section 93 of the Police Act 1997 can authorise interference with property or wireless telegraphy for the purpose of detecting or preventing the commission of those offences. Adding offences to this list is a key power; we take very seriously the powers it gives the Government and therefore the police to counteract malicious use in that regard. However, technology will change. The noble Lord, Lord Rosser, made a distinction between the words “if” and “as”. My notes say “as”, so the “if” he noted could also have been an “as”—so 1-0 to him today.

This power is necessary because technology may emerge which could result in unmanned aircraft being used for new or different types of offences about which we currently have no proper understanding or idea. It is essential that the law stays up to date. The way we do that is by adding offences to Section 93 of the Police Act 1997, and because that is adding an offence to a piece of primary legislation it is necessarily a Henry VIII power.

However, we agree that it is a very significant power and therefore in this case we have mandated that the affirmative resolution procedure be used so that noble Lords have the opportunity to discuss the new offences that are being added to this piece of primary legislation. Noble Lords may ask why a Henry VIII power is necessary in this case. It is key that we keep these offences together, and therefore Section 93 of the Police Act is the right place for them. I am sure that our legal eagles could have come up with a structure that would have meant that the Henry VIII powers would not have been needed, but then we would have had two different pieces of legislation containing offences which apply to the same central core—the ability to interfere with wireless telegraphy and property.

With that, I hope the noble Lord will feel able to withdraw his amendment.

Photo of Lord Rosser Lord Rosser Shadow Spokesperson (Home Affairs), Shadow Spokesperson (Transport) 5:00 pm, 12th February 2020

I thank the Minister for her response to the amendments on which I and others have spoken. I will of course withdraw my amendment, but am not entirely convinced on her point about police resources. I asked some fairly specific questions about the percentage of police officers who would be required to have the training; I still do not know whether it is envisaged that all police officers will have this knowledge or whether it will be a much smaller grouping. I also asked about the tactical advisers; I suspect on that one it will be a case of waiting to see what happens—whether the Government’s view of the extent to which it will involve an additional responsibility or duty on the police materialises or whether it will prove somewhat greater than the Government anticipated. But for now I beg leave to withdraw my amendment.

Amendment 28 withdrawn.

Schedule 8 agreed.

Clause 13 agreed.

Amendment 29 not moved.

Schedule 9: Police powers relating to requirements in the ANO 2016

Amendment 30 not moved.

Schedule 9 agreed.

Clause 14 agreed.

Schedule 10: Fixed penalties for certain offences relating to unmanned aircraft

Debate on whether Schedule 10 should be agreed.

Photo of Lord Rosser Lord Rosser Shadow Spokesperson (Home Affairs), Shadow Spokesperson (Transport)

I have written down an item about Schedule 10 and I will speak in particular to paragraph 6 of Schedule 10, which allows for supplementary provision to be made by regulations with respect to fixed penalty notices, including to the extent of amending or repealing provisions by an Act of Parliament. Paragraph 6(1)(b) of Schedule 10 also states that the Secretary of State may by regulations make

“provision about the consequences of providing false statements in connection with fixed penalty notices, including provision creating criminal offences.”

In their memorandum to the Delegated Powers and Regulatory Reform Committee, the Government’s justification for this power to create criminal offences through regulations, which cannot be subject to amendment, appears to be at least in part that there is a precedent in Section 54 of the Space Industry Act 2018. That Act was in essence a skeleton Act, which the Government told us was needed on the statute book before it could be properly fleshed out—hence so much being left to subsequent regulations—to provide assurance or comfort to the emerging UK space industry that the Government were prepared to give it the legislative backing and certainty it required. I suggest that the same consideration hardly applies here in relation to fixed penalty notices and the creation of criminal offences.

The Government say that the powers in paragraph 6(1)(b) to create criminal offences are needed to ensure that provision can be made for the consequences of providing full statements in connection with fixed penalty notices. But what kind of criminal offences are we talking about which are apparently so unique that the Government cannot formulate them now and put them in the Bill? Alternatively, since the Government refer only to the

“possibility of creating criminal offences in relation to false statements,” why not first determine what those new criminal offences are that need creating and then include them in the next suitable Bill, where they can be fully debated and amended?

The Government clearly regard this Henry VIII power to be of some significance, since they state in their memorandum to the DPRR Committee that

“the regulations may create criminal offences and make provision about the process around appeals, and there is therefore the potential for significant impact to the public, police and judicial system.”

However, despite that potential for significant impact, the Government think it appropriate to use Henry VIII powers and regulations rather than primary legislation, which is invariably more fully debated and which, unlike regulations, can be amended. So can the Government give a somewhat fuller explanation of why having the powers to which I have referred in Schedule 10 is so crucial and, in their view, unavoidable, as opposed to them being powers, frankly, of administrative convenience to the Government?

Photo of Baroness Vere of Norbiton Baroness Vere of Norbiton Parliamentary Under-Secretary (Department for Transport)

I thank the noble Lord, Lord Rosser, for introducing a specific part of Schedule 10: notably, paragraph 6, which gives the Secretary of State the power to make regulations for the provisions about fixed penalty notices, the form of and the information included, and the consequences of providing false statements in connection with fixed penalty notices, including the provision of creating criminal offences, as the noble Lord noted. It is important to note that within all this there is the affirmative resolution, and the consequences need to be proportionate and appropriate to the fixed penalty notices themselves. So proportionality will certainly come into this.

Should the regulations be used in future, the key consideration will be whether they are proportionate. The noble Lord mentioned that the consequences could be put in other legislation, but there could be no other suitable legislation coming down the track. As he noted, there is precedent for making regulations in the manner set out in the Bill. This would be a perfectly reasonable way to provide the flexibility that the Government need in this area as the entire sector develops. We need the flexibility not only for the information required in fixed penalty notices; it must therefore be the case that the consequences of providing false statements in relation to fixed penalty notices must also be needed. That is why we have taken this power in the Bill.

I hope that, with that explanation, the noble Lord will feel able not to oppose the schedule.

Schedule 10 agreed.

Clause 15 agreed.

Schedule 11 agreed.

Clause 16 agreed.