With this it will be convenient to discuss the following amendments:
No. 70, in
clause 95, page 42, line 1, at beginning insert,
'A plain clothes constable, a designated appointee of a testing unit, or'.
No. 13, in
clause 95, page 42, line 7, at end add—
'(c) in doing so must not endanger the safety of the aircraft and those persons on board.'.
I, too, am disappointed to hear that the Minister of State has lost his voice. I wish him well, and hope that he has a speedy recovery and quick return, not least so that he is available on Report and
on Third Reading. He has made a number of promises to put things right in the Bill, and we hope that will do just that.
The hon. Member for Uxbridge, who is not here at present, said:
That may or may not be the case, but there is no doubt that the hon. Gentleman has been tenacious on a number of occasions. Together with the hon. Member for Vale of York (Miss McIntosh), he has pursued with some vigour the issue of uniforms and the question of whether the police should wear them. I am delighted that the Under-Secretary is in good voice. However, I am more delighted that he is considerably better briefed on this occasion than he has been previously. When the issue was last raised, when we were discussing the portion of the Bill that deals with shipping, the Under-Secretary, in response to a question from the hon. Member for Vale of York, said:
''The screening test on board the vessel would be conducted by a constable in uniform. Evidential testing is to be done by the police, and I understand''—
presumably he was not certain—
''that any such test must be carried out by a constable in uniform . . . We may need to consider precisely what is meant by uniform if the hat has blown off and so on.''—[Official Report, Standing Committee D, 4 March 2003; c. 422.]
A few days on from that, the Minister has done his homework and he has got the briefing. Well done him for telling us what the briefing says.
I think that ''understand'' in that context means that something is my knowledge, if that is of any help to the hon. Gentleman. I perhaps have a euphemistic way of expressing things and should be more forthright. However, I am pleased that the hon. Gentleman notes that we now have the precise information at hand.
I am delighted that the Minister is now better briefed. The hon. Members for Uxbridge and for Vale of York and I are all much happier. However, it is unfortunate that the matter is not as simple as that. The question remains of why the constable must have a uniform to enter premises, as covered by the clause. Why must the constable have a uniform when requiring the provision of specimens, as covered in clause 93? Under clause 94, the constable does not appear to require a uniform to carry out an arrest, having entered and taken a specimen. [Interruption.] The Government Whip, the hon. Member for Enfield, North (Joan Ryan), suggests that we have suddenly moved on to the subject of strippograms, which might make a change from some of the other issues that we have been debating. There is certainly a question that needs to be answered.
The hon. Gentleman is right, although what he says applies only in respect of the arrest being carried out without a warrant. The Bill is silent about
whether a uniform is required in the case of an arrest when there is a warrant. There is some confusion, and no doubt the Minister will clear it up, because he is obviously full of good briefing today. However, I shall leave that aside, because I am sure that he will give us an answer to all that.
I want to raise a point that was mentioned in relation to amendments Nos. 69 and 70, which is whether it is always appropriate for a uniformed constable to enter an aircraft. I mention that because several people in the aviation industry, including the British Air Line Pilots Association—the union that represents the pilots—is genuinely concerned that there could be circumstances in which the presence of a uniformed officer in the very crowded area where people enter a plane could lead to undue anxiety among passengers.
BALPA has suggested that, although it may be appropriate in some circumstances for a constable to be in uniform, there may be occasions when it would be more appropriate for a constable not to be in uniform or for testing to be carried out by a separate plain-clothes unit. Those are genuine concerns, and I am sure that they have already been raised with the Minister, but I would be grateful to hear his response.
I hear what the hon. Gentleman says, but I wonder whether it would be more disconcerting for passengers to see someone whom they think is a fellow passenger suddenly arresting someone. That might lead passengers to think that there is more going on than is actually the case.
The hon. Gentleman may be right, which is why I have not proposed the deletion of ''constable in uniform'' from clause 95. I will give the hon. Gentleman time to read the amendment, but he will see that I am suggesting an addition rather than a deletion because he is absolutely right to say that circumstances will differ. All I am suggesting is that the Bill should allow the opportunity, from time to time and where appropriate, for a uniformed officer to enter a plane in the way described in the clause.
Amendment No. 13 also relates to the effect that a uniformed officer entering a plane could have. The amendment merely makes it clear that the prime concern in anything that the uniformed constable does must be the safety of the aircraft and, thereby, the safety of the passengers. There could be circumstances in which a slightly over-zealous uniformed constable took action that the flight crew believed could endanger the aircraft. It must be clearly understood, therefore, that the uniformed police constable cannot do that. That is straightforward common sense.
Perhaps the Minister can assure me that that guidance would be given to police and that it is not necessary to insert it in the Bill. However, it would be useful for the Minister to put on the record words to the effect that nothing done by the police under the Bill would in any way endanger the safety of the aircraft and the passengers on board.
As the hon. Lady has referred to the lurgy on several occasions and fearing that I may be coming down with it, I took the trouble to check in the Official Report how the word is spelt. I was quite fascinated to find out the answer.
I am sure that there will be an opportunity to return to the trolley bus.
It was interesting that the hon. Member for Bath (Mr. Foster) was taken by our argument about whether an officer should be in a uniform. A plain-clothes constable could have been called an undercover officer, but that might have connotations that the Committee would find confusing and misleading.
The Police and Criminal Evidence Act 1984 says that a constable need not be in uniform. However, if he is not in uniform, he must take reasonable steps to produce documentary evidence that he is a constable before commencing a search. How will someone who is stopped know that he is being stopped by a police officer? Preventing a police officer from boarding an aircraft with a view to arresting somebody and resisting arrest are serious offences. I am surprised that the Government have not argued that the officer must always be in uniform because he could then be easily identified as a police officer carrying out functions under the Bill. I do not wish to do the Minister's job for him, but I hope that he will clarify that point.
If a person who is stopped believes that he has been accosted by a non-police officer and resists arrest, will the Minister confirm that the person might not be charged with the offences that were the reason why the police stopped him but with offences arising directly from the stop? That might happen if a person prevented a police officer from boarding an aircraft under clause 95. When talking about section 1(1) of the 1984 Act, the right hon. Member for Manchester, Gorton (Mr. Kaufman) said that stop and search would provoke as many crimes as it dealt with, if such matters are regarded as crimes. There are compelling reasons why an officer must be in uniform.
The hon. Member for Bath did not clarify his point about a designated appointee of a testing unit at great length. For the 1984 Act circumstances were envisaged in which a police constable should be accompanied. The explanatory notes for that Act give the example of
a constable entering a residence in an area with a strong ethnic character. In such circumstances, it would be appropriate for someone from that background to accompany the officer. It would be useful to hear whether those circumstances will apply under the Bill or whether a constable will be expected to enter an aircraft alone to make an arrest in most circumstances—I imagine that that will be the case.
I turn to amendment No. 13. I assume that a police constable must not endanger the safety of an aircraft or persons on board when he enters it. I have difficulty envisaging circumstances in which that would happen. A police officer who tried to arrest someone who was unfit for duty under clause 89 prior to take off would be considered to be doing persons on the aircraft a favour.
On an earlier clause we discussed sky marshals. As I understand it, the Bill does not apply only to British nationals, for whom carrying a weapon on a plane would be illegal. If a police constable went on to a plane and tried to arrest someone for whom he thought there was reasonable evidence that they were under the influence of alcohol or drugs and if that person was sitting next to a sky marshal, the sky marshal might think an incident was taking place and that might endanger the aircraft's safety.
That is a pertinent point. The question of the sky marshal has not been elaborated in the Bill for understandable reasons, but there is a lack of clarity. My hon. Friend has raised a compelling point, which I hope the Minister will address. It would be appropriate to address the other issues in the clause stand part debate. I have great difficulty with the amendments. We exhausted these points in our earlier debate, but the Liberal Democrats are seeking clarification of other issues.
I am sure that my right hon. Friend the Minister of State touched by the hon. Member for Bath's kind remarks. I shall make sure that they are passed on, together with his less kind remarks about whether he would be as good as his word. My right hon. Friend is always as good as his word.
I would hate the official record to suggest that I implied that the Minister of State would not be good to his word. I said that I hoped that he would make good his promises on the Floor of the House.
I am glad of that clarification. It is not quite how I heard it the first time, but I am always pleased to have some clarification from the hon. Gentleman.
Amendments Nos. 69 and 70 seek to give plain-clothes policemen and specialist testing personnel the same rights of entry as uniformed constables. However, the clause already provides that one or more persons can accompany a uniformed constable when he is exercising his right of entry. That would include plain-clothes constables.
Furthermore, as the use of force is permitted to gain entry, it is entirely appropriate that a uniformed officer should be present. I agree with the hon. Member for Uxbridge: more alarm could be caused if a uniformed officer were not present. The hon. Member for Bath asked whether the presence of a uniformed officer could lead to anxiety among passengers. I should have thought that the opposite was the case: if someone without a uniform entered the aircraft and sought to take a test from the pilot or another person on board the plane, that could occasion alarm.
I note with interest that the hon. Gentleman introduced for the first time the notion that a specialist testing unit might be given responsibility for the testing of aviation subjects. It will not have escaped the Committee's attention that we have—for the sake of consistency across transport modes—tried to replicate as far as possible the relevant testing procedures already established in road traffic legislation. The Transport and Works Act 1992 applies the same regime on the railways, and the police are familiar with the procedures.
The police have been testing drink-drivers for many years. The procedures adopted have been tested and approved by the courts many times. The permanent police presence at most major airports will also enable the rapid response to and testing of suspected offenders. Given that a criminal conviction may follow a failed test, it is appropriate that the police rather than a separate testing unit should be responsible for carrying out preliminary breath tests.
Amendment No. 13 seeks to require that a constable does not endanger the safety of an aircraft or those on board in exercising his right to enter an aircraft to test or arrest a suspected offender. I applaud the intention behind the amendment, but I assure the Committee that it is unnecessary. The clause already limits the officer to the exercise of ''reasonable force''. That term is commonly used to qualify the use of police powers and the police are familiar with it. As I said in answer to the previous debate, sanctions can be applied if somebody feels that a police officer has gone beyond the call of duty. What is reasonable force is a matter of fact and degree, and it depends on circumstances, especially the resistance offered by the suspect. In most cases, the force that is used will amount to little more than taking hold of a person's arm to prevent their running away. As resistance mounts, so the degree of force may increase. Nevertheless, the police officer must at all times use the degree of reasonable force that is appropriate in the circumstances.
In the aviation environment, the sensible exercising of the police powers will be supported by the power to enter with others—from airport management or security—who can advise the police officer on the spot. It is hard to envisage any circumstances in which it would be reasonable for the officer to use so much force that the action in itself endangered the safety of the aircraft or its occupants. Indeed, passengers may, as a result of police intervention, avoid the danger of a flight with a drunken pilot or crew member.
The hon. Member for Bath asked about the warrant. Constables would have powers to arrest
without a warrant. The example that he mentioned would be unlikely, because a warrant gives the police the power to arrest. It is not expected that the police will get warrants to make arrests under part 5; indeed, that would not be practical in most circumstances. A police officer must be identified before requiring a person to take the test. I am informed that for the actual purpose of arrest, the police officer does not have to be in uniform. I believe that that is the same for road traffic offences. However, the officer must be identified at the beginning of the procedure.
The hon. Member for Vale of York referred to the police being accompanied. Clause 95(3)(b) makes it clear that the police could be accompanied and that they could determine whether or not that would be appropriate. The hon. Lady also referred to sky marshals. Constables must be in uniform for the purposes of the right of entry; it should be made clear to any sky marshal who may be present on the plane that it is the police who are attempting to effect an entry.
I am grateful to the Minister for his answer. I was especially delighted by the compliment that was paid to me by the hon. Member for Vale of York. For her to say that I had not gone on at length is probably the greatest compliment that she is ever likely to pay me.
I am still pondering the Government Whip's notion of policemen taking their clothes off. That would be a possible solution to the conundrum: police constables can carry out arrests out of uniform but, having identified themselves, they are required to be in uniform for the entry of premises or for the taking of, or requiring the provision of, specimens.
When the Minister tells the Committee that he is informed that the police do not need to be uniformed but need to be identified, he is merely giving us information about the current situation. He has not, however, explained why that situation exists, and why it should apply in the new circumstances we are discussing. He has a strong point in saying that in many circumstances the best way of a person being identified as a police officer is to be in uniform.
I am a great believer in police officers wearing uniform as much of the time as possible because it gives such a confidence boost to members of the public. Senior officers of the local force in my constituency occasionally come to meetings with me wearing ordinary business suits. I have suggested that it would be much more helpful if they came to my office, in the centre of the city of Bath, in uniform because it boosts the visible police presence. I accept the Minister's point about the benefit of wearing uniform, but there was no logic in his answer to explain the occasions when it is necessary under law to wear a uniform and when it is not.
More importantly, there may be circumstances in which the appearance of a constable in uniform could lead to heightened passenger anxiety. The Minister said that he would have thought the opposite. He is entitled to his view, but when BALPA, which I suggest knows more about the circumstances in aircraft, takes a different view from the Minister—although it, too,
could be wrong—it has a right to a more detailed response to its anxieties than merely being told that the Minister thinks it is wrong.
I say to the Minister and to the hon. Member for Vale of York that I have not gone on at length about alternative forms of testing. There are powerful arguments for saying that a different group of people could take on the responsibility for testing. The hon. Lady has expressed her concern about the validity and security of the current testing procedure. There are arguments for suggesting that testing could be carried out by people specifically and solely trained to do so, but the Minister's sole response is that we should stick with the police because they are familiar with the procedure. Familiarity with a procedure is no justification for sticking with the same organisation or group of people for all time.
We are about to consider the much-amended Licensing Bill, which proposes that magistrates should no longer have responsibility for awarding licences to public houses, and that responsibility should be given to a different body—local authorities. It has been argued that magistrates should continue to have that responsibility because they have long experience of awarding licences. The Government have responded by saying, ''No. In time the new body, local authorities, will develop the expertise and it is better for them to do so.'' The logic that the Government have applied to the Licensing Bill could be applied in respect of the testing regime, especially as there are concerns about the way in which those procedures are carried out, as the hon. Member for Vale of York rightly said.
I am listening carefully the hon. Gentleman. Is he saying that there should be a specialist testing unit at every airport? Has he considered the cost implications of such a proposal?
No, I am not suggesting that but I am proposing that groups of people working with the police could be involved in that activity. The suggestion made by people in the air industry appears to have been dismissed and it should be given greater consideration. I have no particularly strong views on the matter but the Minister clearly does. He is entitled to them; I just find it odd that other bodies have conflicting views.
To pursue this important point, the Bill creates criminal offences that could lead to imprisonment, so it is entirely right that the tests should be conducted by the police, and those who have experience of conducting them.
The Minister will be well aware that, increasingly, all sorts of tests, including specimen tests, are partly carried out by private sector organisations. The logic does not follow.
We cannot let the hon. Gentleman get away with that. The police take the sample, and another body might test it later. However, we are talking about what happens when a person is arrested and a sample is taken. The police have experience of
taking such samples, and it is right and proper that they should take them.
That is current practice, and the Minister says that that practice should continue. As I constantly say, he is entitled to that opinion. I am merely sharing with the Committee the fact that many people do not agree with him, and that there are alternative practices that should be explored. We could go on about the issue at great length, but I do not think that you would permit us to, Mr. Hurst.
More importantly, I am grateful for the assurances that the Minister gave on amendment No. 13 about the requirement for the police constable to ensure that his actions will not put the aircraft or passengers at risk; that was helpful. In relation to amendments Nos. 69 and 70, I am still confused. The hon. Member for Uxbridge has a ''simple man'' approach to the issue, but perhaps I am even simpler than he is.
Not necessarily. The hon. Gentleman is a tenacious man. I am even more confused than I was at the beginning of our deliberations about when it is important to wear a uniform. I understand the value of a uniform for identification purposes, but there are occasions when other forms of identification might be more appropriate. I fail to understand why uniform is necessary in some circumstances and not others. No doubt we will continue to explore the issue—and not least the blowing off of hats—later in the passage of the Bill. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
I am grateful for this opportunity to raise matters arising from the clause and not from the amendments tabled by the hon. Member for Bath.
The Minister has told us a little about certain aspects of the clause, the reasons for suspicion mentioned in subsections (1) and (2), and ''reasonable force'' under subsection (3). It would be helpful if the Minister could identify who might, under subsection (3), accompany a constable entering an aircraft. The explanatory notes state:
''Clause 95 provides the police with powers to board an aircraft or enter any place for an offence under clauses 89 and 90.''
The explanatory notes seem to go a little further, if one may say so without being provocative, than the clause. Does ''any place'' refer to a medical centre to which a suspect might have been taken? This is an opportune moment for the Under-Secretary of State to elucidate what that means. I do not want the clause to run into difficulties in its application without knowing where, apart from an aircraft, a police constable will be empowered to have the right of entry.
We are also told that the clause states that the police ''may use reasonable force'' in exercising the powers, and that they may be accompanied when doing so. As I said, it would be helpful to know who may accompany the police constable, under which
authority, power or Act those people would be acting, and what the nature and limit of their powers would be. The hon. Member for Bath, who regrettably has had cause to leave his place for a moment, sought to ask those questions through his amendments. We seek clarification on those points, as the Bill is insufficiently specific.
I imagine that the powers are taken from the Police and Criminal Evidence Act 1984. Section 17(3) relates to a constable in uniform and only applies to powers of entry to effect an arrest under the Criminal Law Act 1977. Again, we understand that a constable needs to board an aircraft to arrest someone, but are the Government saying that the place could be a lavatory in which the suspect had sought refuge? How wide is the vicinity into which the police will be empowered to enter? If it is not just the aircraft, what is the full extent of their powers?
We are told that ''reasonably required'' under section 17(4) of the Police and Criminal Evidence Act was deemed to be an objective standard, and that searches beyond that objective standard would be unlawful and may give rise to action for trespass. The explanatory notes on that subsection state that reasonable force may be used if necessary under section 117. Force is the application of any energy to the obstacle with a view to removing it. The Minister at the time told us most helpfully that reasonable force would simply be reasonable. Taking hold of an arm is one thing; inadvertently breaking the arm, especially of a female passenger, is quite another. That would obviously be very regrettable.
The explanatory notes to section 1(3) of the 1984 Act, which is of course the empowering Act in the Bill, further elaborates what constitutes reasonable grounds. The then Minister said in the Standing Committee that reasonable suspicion was an objective basis for action that could be tested in the courts, and that there must be some concrete basis for the officer's belief, which could be considered and evaluated by an objective third person. He also said that it was important to see the distinction between reasonable suspicion and mere suspicion. Mere suspicion is an intuitive guess, which is so personal and insubstantial that it cannot be articulated or submitted to scrutiny. Much of the criticism would allege that, if the distinction is tenable, officers will rely all too often on intuitive guesses, which involve stereotyping and are insubstantial. That sets out a good background with regard to the parameters of what is reasonable.
I have raised that issue because the Under-Secretary, being a reasonable person, must see that there could be grounds for testing it in the courts. The clearest of clarification would be helpful to the Government's cause. I simply hope that the concept of reasonable suspicion will be interpreted as strictly as possible.
The Under-Secretary's comments will have clarified for my hon. Friend the Member for Uxbridge the relationship between sky marshals on a flight, who for good reasons have not been written into the Bill, and police constables.
On clause 93 and the right of entry to an aircraft or another place to test a suspect, the hon. Member for Bath must now be satisfied as to why it is right and proper for a police officer to be in uniform. If someone who was not clearly identified as a police officer was seen to escort a pilot off a charter flight which contained a lot of passengers waiting to go on their annual holiday, there could be a riot. If we can avoid such circumstances, it is best to do so.
Again, I hope that the Under-Secretary will confirm that the concept of reasonable suspicion in clause 95(2) will be interpreted as strictly as possible. As I mentioned in connection with clause 94, just as it would be unlawful to make an arrest without a warrant without reasonable cause, so the right of entry to an aircraft or, more particularly, another place that is not specified in the Bill could lead to a difficult situation. I therefore hope that the Under-Secretary will take this opportunity to specify which place other than an aircraft a constable is empowered to enter, and the limits of ''reasonable force''.
I hope that the Under-Secretary will also clarify that if a person is particularly aggressive, the police constable might be accompanied by other officers to enable the person to be taken away as peacefully as possible. Finally, let us say that a constable is accompanied by ''one or more persons'' who are not police constables. Will the Under-Secretary be good enough to clarify who precisely they would be? Perhaps he can explain why they have not been specified in the clause.
The clause provides the necessary powers of entry to enable the police to deal with the offences created by this part of the Bill. It allows an officer to board an aircraft either to make an arrest or to request the provision of a specimen. The powers granted are substantially the same as those under section 6(6) of the Road Traffic Act 1988. An officer requesting entry must be in uniform, but is permitted to use reasonable force to gain entry and may be accompanied by others.
The hon. Member for Vale of York asked about the other places referred to in clause 95(2). An offence may not occur in the aircraft. It may occur in a maintenance depot, an air traffic control unit or another place—for example, while the person is on stand-by and waiting to go on duty. We have to allow for those circumstances and for different places where the test or arrest can take place.
The hon. Lady also asked about the limits of reasonable force. The concept of reasonableness is well trodden and well understood in English law. Although the hon. Lady is a Scottish advocate, I would hope that she has a good understanding of the point.
The hon. Lady asked who could accompany a police officer. In some circumstances, where extra help is required, it could be another police officer. In other circumstances, it might be the airport management or airport security authorities. She asked whether we could say precisely who it would be. Of course not: I cannot provide a definitive list, but others could be called to the constable's aid in appropriate
circumstances. Listing precisely who it could be would be ludicrous and would stretch the Bill to far more pages than it has now.
On the issue of reasonableness, the hon. Lady answered her own question with her quotations. As I said, ''reasonable suspicion'' is a well-established term. It is right that a police constable has some objective grounds for any suspicion: he may have seen the relevant person staggering or drinking in the bar, or a responsible person working for the airport authority might have a reasonable suspicion that was passed on to the police officer in good faith. We cannot elaborate on every circumstance, but English law is fairly clear about what the circumstances are likely to be.
I am grateful for the Minister's comments, but some issues have, regrettably, not been adequately clarified. I specifically asked under what authority the one or more other persons would be acting and what the parameters of that authority would be. I asked the question in a spirit of helpfulness and co-operation because it is important to clarify the matter now, rather than place people in a position where their authority could be questioned when the Act is in force. I am a firm believer in clarification at the earliest opportunity, to ensure that the clause cannot be abused.
The reasonable suspicion test leaves open several questions. The Minister is right that it is a well-established principle that has been in force for 19 years since the 1984 Act, but he acknowledged that a new offence is being created. We know from the example of the British Airways pilot who was escorted off the flight at Stockholm and lost his livelihood, which ran to about £100,000 a year, that the consequences can be enormous. It provided a significant lesson to his colleagues, but the provision also affects other places of work, such as maintenance depots, and other people, such as airport officers. It was one glass of wine that led to that particular pilot—I assume he was a gentleman—being escorted away. One hopes for certain safeguards against malicious reporting. We MPs are well aware that malicious rumours can have devastating effects, so I hope that the Minister has provisos in place in that regard.
The Minister's explanation was helpful, but I want to place it on the record that I am concerned about difficulties arising from the application of clause 95(3)(b) in respect of the authority of those persons. Further explanation of what is required to allow them to exercise that authority in good faith would have helped.
Question put and agreed to.
Clause 95 ordered to stand part of the Bill.