Amendment No. 146, in clause 101, page 67, leave out lines 23 to 26.
Amendment No. 218, in clause 101, page 67, line 24, after 'if', insert—
'(a) the offence is an arrestable offence punishable by more than 5 years imprisonment, or
Amendment No. 296, in clause 101, page 67, line 24, after 'if', insert—
'(a) the offence is an arrestable offence, or
Amendment No. 165, in clause 101, page 67, line 27, leave out from beginning to end of line 5 on page 68.
Amendment No. 219, in clause 101, page 67, line 43, leave out from beginning to end of line 2 on page 68.
Amendment No. 166, in clause 101, page 68, leave out lines 6 to 28.
Amendment No. 295, in clause 101, page 68, line 17, at end insert—
'(za) the offence is an arrestable offence,'.
Government amendment No. 255.
Clause stand part.
Clause 102 stand part.
Amendment No. 220, in schedule 7, page 164, leave out lines 3 to 13.
Amendment No. 185, in schedule 7, page 164, leave out lines 8 to 13.
Amendment No. 221, in schedule 7, page 164, line 30, leave out from beginning to end of line 38 on page 168.
Schedule 7 be the Seventh schedule to the Bill.
New clause 13—Powers of arrest (No. 2)—
'In section 24 of PACE (arrest without warrant for arrestable offences), leave out subsection (1)(b) and insert—
''(b) to offences which the Secretary of State may by order prescribe;''.'.
New clause 14—Powers of arrest (No. 3)—
'In section 24 of PACE (arrest without warrant for arrestable offences), leave out subsection (1)(b) and insert—
''(b) to offences other than those which the Secretary of State may by order prescribe;''.'.
I am delighted to serve under your chairmanship, Dame Marion.
Before lunch, I explained that we are moving from a framework in which the seriousness of the offence is the defining character to one that involves the test of necessity. That is the fundamental point.
I apologise to the Minister if the passing of time has dulled my memory, but I think that she said earlier the opposite of what she is saying now. Can she confirm that she said that seriousness will stay part of the overall reasonableness test, which will therefore become stronger?
I am delighted to confirm that seriousness will remain one of the factors to be used in deciding whether it is necessary to exercise the power. It is an important factor and it will remain a central consideration, because we do not want to deny the basis on which Police and Criminal Evidence Act 1984 provisions have developed. However, a number of other matters will also be taken into account, and that will strengthen the test.
The hon. Members for Beaconsfield (Mr. Grieve) and for Sutton Coldfield (Mr. Mitchell) emphasised the nature of policing in this country, that it is policing by consent. The nature of the encounter between the police officer and the citizen is therefore critical if that relationship is to be maintained. By introducing the test of necessity, we raise the threshold at which police officers can exercise their judgment. That strengthens the relationship at the time of the encounter; it is policing not only by consent, but with the active co-operation of communities. That takes us further in developing neighbourhood policing models.
I hope that the Committee will accept my reassurance that the changes are designed to strengthen the relationship between citizens and the police rather than to weaken it.
I apologise for my late arrival.
I have had an opportunity to consider what the Minister said before lunch, and I appreciate that the first part of the clause, which deals with constables' powers, repeats many but not all the PACE provisions. It gets rid, however, of the distinction between arrestable and non-arrestable offences. That leaves me with an anxiety that the provision sends out a signal to the police about the use or extension of their powers that might work against the sensitive exercise of those powers. I do not know to what extent she intends to touch on that issue, but I hope that we can examine it.
I am keen to dispel any message of the sort to which the hon. Gentleman refers. Perhaps I can help him by saying that seriousness remains one of the factors. We also want to consider the effect on the victim and the way in which we can ensure that the powers are used both to investigate crime and to secure convictions, and we intend to develop a code of practice on the way in which the powers will be used. That will happen after consultation not only with the limited range of stakeholders specified in PACE, but much more widely, to ensure that the messages we send out in relation to the framework reinforce the points that I have made about community policing and maintaining the good relationship between citizens and the police service.
The Minister has said several times that the test of seriousness remains, but I am at a loss to understand how. The test of necessity provision is, as she correctly says, largely lifted from the previous general arrest conditions for minor offences that did not come under the category of arrestable offences or serious arrestable offences. I see no other condition on the arrest that applies to the seriousness of the offence. Will she explain why she believes that the test of seriousness persists?
If the hon. Gentleman compares section 25 of PACE with the necessity provisions in subsection (1), he will see that proposed subsection (5)(e) makes a key addition. There are currently no necessity provisions for the general power of arrest, but paragraph (e) will allow the prompt and effective investigation of the offence or the conduct of the person in question. That relates to whether one is looking at a serious offence and whether, in a complex investigation, one needs to make an arrest in order to take the matter forward. As I say, we do not specify seriousness as a particular factor, but when a constable is considering whether to exercise the power, that judgment will, under the code of practice to be worked up under PACE, clearly include consideration of the nature of the offence that has been committed.
I am sorry to test the Minister further on this issue; I am not trying to be clever. The reasons listed in subsection (5) are alternatives; they are options or palette of reasons from which the officer can choose. Adding an additional reason to enable the investigation of the offence will not provide an additional test, because it will not qualify the others. Good arguments may be advanced for doing exactly as she says, but the suggestion that the provisions maintain a seriousness test is not one of them. It flies in the face of the logic of the clause as presently constructed.
I am sorry, but I think that the hon. Gentleman fails to appreciate the problem. It is not his fault; it may be mine in terms of communication. We are asking constables to take a more holistic view of the circumstances that face them. At the moment, they have to decide only whether something is covered by the PACE list, but that is an arbitrary way of deciding whether or not to arrest. Under that arrangement, the constable can simply say, ''If it is in the list, I can do it, so let's get on with it.'' We are asking the constable to take a view on the nature of the offence, the conduct of the person in question and the seriousness of the situation, including whether there is physical injury or loss or damage to property, or whether can he get an address. A range of issues are involved, and the constable has to be satisfied that it is right to exercise the power in those circumstances.
I have given the hon. Gentleman the assurance that, when we work up the code of practice, the nature of the offence will clearly be a consideration. However, the current system, with an arbitrary list saying when one can arrest irrespective of the need to exercise that power, is not the right place to be. We have tried to move on from that framework, but to retain some of the concepts relating to necessity that are to be found in the general powers of arrest. That is why we have transposed them into the new provision. We are retaining some of the concepts, but we seek a gateway of necessity rather than the arbitrary gateway of seriousness.
The question for the Minister is clear. She seeks to blunt the argument of those on the Opposition Benches and to beguile us with her promised code of practice. What does she mean? She says that she will consult, but will the matter be the subject of debate in the House? Will it be the subject of any form of secondary legislation? Whom does she envisage consulting? To what extent should she be able to blunt our arguments by the promise of a code of practice? Will she reassure us on that point?
I shall be delighted to do so. The preparation and promulgation of codes of practice is a long-established means of putting flesh on the bones of the Police and Criminal Evidence Act 1984. There is a series of statutory codes, and the proposed code would be another such code. There will be formal consultation. I understand that we are statutorily bound to consult a limited number of stakeholders, including various police organisations. In this case, we intend to consult not only those bodies, but organisations such as Liberty. Members have raised the question of disproportionality, particularly for people from black and minority ethnic communities, so we intend also to consult them about the implications of the code. The code will be subject to an affirmative resolution in both Houses, following not only the consultation but consideration by the Select Committee on Home Affairs. The consultation is a fairly formal procedure.
The Minister persuades me that, in respect of what were previously arrestable offences, the mechanisms provided for in the first part of clause 101 could well be described as an improvement because they provide for a greater degree of flexibility, albeit—I suspect that she would agree—that the police already exercise some flexibility even over arrestable offences. My anxiety arises in respect of the general powers of arrest for offences previously provided for under section 25 of PACE. Although the criteria may have been more prescriptive in section 25, I am left with the slightly uneasy feeling that the consequence is that more of those who have committed minor offences or who are alleged to have done so—this will be an allegation, not a proven fact—will end up being arrested unnecessarily under her proposals.
It is difficult for any of us to look into a crystal ball, see the future and predict the effects. The aim is to achieve the opposite to what the hon. Gentleman set out. That perhaps includes seeing fewer arrests, as people will be able to exercise a better degree of discretion and professionalism about whether an arrest is necessary. At the moment, it is tempting for a constable simply to think, ''This offence is in the list and I can arrest, so I will exercise my power.'' We are trying to ensure that the constable does not automatically go down the route of making an arrest, but says at certain points, ''Is it necessary for me to do this?'' If the hon. Gentleman thinks about some of the tools that we brought in, such as fixed penalty notices and other tools to tackle offences, he will see that our whole direction is towards reducing arrest, as we want to reduce the time that constables spend processing people through the custody suite so they can spend more time out on the streets fighting crime.
I hope that my hon. Friend will not go too far down the road that it has been suggested we should take, particularly by the Liberal Democrats. For instance, many police officers are currently unclear about whether they can make an arrest if they are sworn at. In one sense, we can say, ''It's only a word, and it's common'', but on the other hand, swearing often displays extreme disrespect to the police and makes it difficult for them to do their job, unless they know that they have the power to arrest in that situation. That is the sort of circumstance in which it is right that a police officer can arrest with a strong feeling that he is enabled by that power to police more effectively.
My hon. Friend makes an important point about the police being able to do their job more effectively. That is the purpose of the provisions—to ensure that the police have sufficient powers and that the system is rebalanced so that we do not look at seriousness in isolation, but consider the effect on the victim and the conduct of the offence. In particular, I highlighted the need to allow prompt and effective investigation, which is an important addition. We are talking about exercising powers with a view to securing not only an arrest where an offence has been committed, but a good investigation and a conviction. That is how we can make people confident in the criminal justice system, so that they are more likely to come forward with the community intelligence that is fundamental to our neighbourhood policing. The change that we are introducing is about trying to see the situation not from the offender's perspective, but from that of the citizen and the victim.
The hon. Member for Huntingdon (Mr. Djanogly) raised the issue of zero-tolerance policing, as did my hon. Friend the Member for Hemel Hempstead (Mr. McWalter). There is no policy shift to zero tolerance in any circumstance. We are seeking to provide the police with a range of tools to have at their disposal, so that when they come across a situation, they can decide the appropriate way to deal with it in the interests of justice and of getting good convictions and detections. That is why we have introduced fixed penalty notices, dispersal orders and all the antisocial behaviour tools. The provisions before us have the same policy context. They are about saying that we want to be effective on the streets, and sending a message to offenders that we are going to give the police the powers to get them off the streets.
I am grateful to the Minister for supplying us with copies of section 25 of the old PACE provisions, which has been helpful. As she said, subsection (5)(e) is the important addition in the clause. Can she confirm that paragraph (e), to which she has referred at length, will be of use to the police only in cases of the less serious offences, which are not arrestable? As matters stand under PACE, a police officer has the right to arrest someone for an arrestable offence. The provision can be used only for the less serious type of offences.
Clearly, the purpose of the amendments that we are making is to introduce a framework in which any offence is arrestable, from the most to the least serious. The clause sets out qualifying factors to decide whether or not arrest is necessary in those circumstances. The phrase
''to allow the prompt and effective investigation of the offence'' would apply to the whole range of offences, and the police officer would need to think about that.
The point that I am making to the Minister is that the police already have such a power in the case of an arrestable offence, because the police officer can simply arrest somebody. The provision before us will apply only in the case of less serious offences. If there is a test of seriousness, it applies to less serious offences, as the hon. Member for Somerton and Frome has been saying.
I accept that we already have a position in which people would be able to arrest for serious offences. I entirely accept that. We are seeking to introduce a new framework. If we move to the new tests, it is important that we have such a framework.
As I understand it, contrary to what the hon. Member for Hertsmere (Mr. Clappison) implied, section 24 of the Police and Criminal Evidence Act 1984 will be repealed, so there will be no general power to arrest at all, except the one before us. [Interruption.] I hope that that is clear. I am sorry; I thought that he had not taken it into account.
My concern runs contrary to the one that is being raised now and to the one I thought I had, which was too many arrests, and I think that it troubles some of the police representatives who are here this morning. My hon. Friend the Minister says that paragraph (e) is a sort of proxy for seriousness, but I cannot make that connection myself. I do not understand why a grave offence is likely to require more prompt investigation than a weak one. Consequently, I cannot see why the gravity of an offence would automatically bring an arrest justifiable under paragraph (e). The concern is that, when there has been a really serious offence, if the officer makes the error of thinking it should fall under paragraph (e) or cannot find a subsection to put it under, he might have made a false arrest. That would mean that all the evidence recovered thereafter would not be admissible. That is a problem, as one can see when coming at the issue from the opposite point of view, and I invite the Minister to consider it.
I understand the point that my hon. and learned Friend is making. I do not entirely accept it, because there could be circumstances in which a serious offence would need prompt investigation. There may be a need to preserve evidence or immediately to question somebody for serious matters, so I do not accept that paragraph (e) relates only to more trivial offences. It could relate to trivial and serious offences. If she looks at paragraph (f), she will find that it ensures that prosecutions are not hindered by the disappearance of the person in question. Again, if a serious offence has been committed, the likelihood that someone will seek to escape from the scene may be greater, as the more serious the offence, the more serious the consequences. I do not accept that the issues are exclusive, but I take her point that the provision could apply to both serious and less serious offences.
What I am really saying is that neither paragraph (e) nor paragraph (f) will automatically apply to a serious offence. The matter will not necessarily lie with the gravity of the offence. Officers who understandably want to arrest for a serious offence and who might think about bail being permissible but only under strict conditions in due course might not have a ground to arrest. The true position with this new model, whose purpose I understand, is that the gravity of the offence has disappeared completely as a criterion.
I do not accept my hon. and learned Friend's contention. Some of the responses to our consultation expressed entirely the opposite view. In fact, the nature of the provisions means that they are so catch-all that they are not a serious filter in terms of narrowing the issues that can be taken into account. We have received criticism from both sides. There have been suggestions that there are no circumstances in which the necessity test could not be passed, let alone circumstances in which other matters might escape. That is why it is important that, when we prepare the code of practice, we give as much guidance as we can about the nature of the holistic decision that we are asking officers to take in relation to the circumstances that face them.
I thank the Minister for giving way, as she is doing so in the best spirit of Committee debate.
I understand the point made by the hon. and learned Member for Redcar (Vera Baird). Curiously, I approached it from the other angle, and I do not think that the two positions are incompatible. She has highlighted the fact that, with the lack of a seriousness test, an officer might feel disadvantaged in taking the decision. Equally, I think that there appears to be an open door to an officer to arrest on fairly trivial grounds, because
''to allow the prompt and effective investigation of the offence'' appears to be a bit of a catch-all provision.
We are narrowing down our discussion to the nub of the anxiety. It may well be that the guidelines can cure it, but the alternative approach might be to have a seriousness test or possibly a seriousness test and paragraph (e).
We have just seen an illustration of the way in which the provision can be approached from both sides. We can make the criticism that it is a catch-all measure that does not allow anything through and that arrests will take place for the more trivial offences. Equally, we have the concerns expressed by my hon. and learned Friend the Member for Redcar. I can do no more at this stage than try to reassure the Committee that we will endeavour to ensure that the issues raised by hon. Members will be addressed in the code of practice.
I want to deal with the more general question that has been raised, particularly in the Liberal Democrat amendments, about why we have not gone for the original PACE review recommendation that we should simply come up with a prescribed list of offences. The review recommended creating a definitive list complemented by information on how the offences could be applied, but said that more radical ideas about expanding the scope to arrest required further consultation. The review said that the prescribed list was a starting point, but called for more fundamental change.
That is why we have tried to incorporate the necessity test and to get away from the arbitrary issue of the seriousness of the offence. It is important for me to tell the Committee that the proposal has not simply been promoted by the Home Office. We had the PACE review and then the consultation, and that is why we have ended up opposing the amendments tabled by the hon. Member for Somerton and Frome. We do not believe that a prescriptive list is enough, and we think that the approach that we are taking is a better one.
I, too, am trying to improve things or to give the Minister food for thought; that is all. Of course, if the grounds of arrest set in statute are not sufficient to cover any particular situation, whatever the code of practice says will not alter that. The grounds of arrest have to be in the statute. If there is anything in either of the concerns that have been expressed today, an amendment should be tabled later on, rather than the code of practice relied on. As I say, if the grounds are not in the statute, one cannot put them there through a code of practice.
I think that I have shown that I have heard what hon. Members have to say. At the moment, I am in a position to go no further than the code of practice, but I have clearly heard the remarks of those on both sides of the argument.
Secondly, I recognise the concerns raised by the hon. Gentleman, despite his personal bravery in tackling criminals, about the possibility of citizen's arrests being used for trivial offences. Citizens have a difficulty now in knowing what is an arrestable offence, a serious arrestable offence or a general power of arrest, and how they might act. If we are to have a new amended form of citizen's arrest, we need much more communication with the public about where it might fall. I am happy to say to him that I will consider the matter seriously before Report to see whether I can meet the genuine concerns that have been expressed in the Committee about narrowing down even further the circumstances in which a citizen's arrest can take place. I understand the concerns that have been raised.
I suppose that it is a peculiar feature of British law that the constable is the citizen in uniform and that we all have the ability to arrest. It is right that that should be set at an appropriate level, but also communicated to the public so that they know the circumstances in which they might operate. I hope, on that basis, that the hon. Gentleman is reassured.
Finally, I want to deal with breach of the peace and Government amendment No. 255. We originally proposed to abolish the breach of the peace power; in a way, I was trying to strike a balance with civil liberties. I wondered whether we needed such a catch-all power if we were bringing in a power to make every criminal offence arrestable. Was not that a belt-and-braces job, giving the police more powers than they should really have? That was a strange position to find myself in as Minister with responsibility for policing.
In the consultation, however, the Police Federation highlighted two examples of where the power is used pre-emptively, and that was quite persuasive. One example is cases of domestic violence in which there is no complaint from the person who is being assaulted or who is likely to be assaulted, and the power has been very useful there. The other example involves people with mental health problems who are held informally, as using the power in such cases can help to contain a situation while the formal legal processes are conducted. Those are just two examples of situations in which the Police Federation said that it is extremely useful to have the power.
I urge hon. Members to support amendment No. 255 and to oppose the Conservative amendments, which would reinstate the seriousness test in place of the necessity test, and the Liberal Democrat amendments, which seek to introduce a prescriptive list of offences, rather than the necessity test.
I welcome you to the Committee, Dame Marion.
I am grateful to the Minister for the time and care that she has taken in responding to the debate; she has moved us further forward in a number of ways. I have no idea what the hon. Member for Beaconsfield intends to do about the amendments standing in his name, but I take some comfort from the Minister's comments about the PACE codes of conduct. She has given us assurances about those codes of conduct, which are critical to the operation of PACE; they are not a trivial matter or some guidance in the ether, and they will have a real effect on the operation of the power before us. None the less, I hope that she will consider further qualifying the initial power of arrest to reflect the seriousness test, which she wants to be implicit, but which, at the moment, is not. If she looks carefully at what has been said, she will recognise that that is the case.
On the power of citizen's arrest, however, I still think that the provision in the Bill is completely mad. It is not even qualified by PACE; it provides for a general power of arrest, for anybody, for anything.
The Minister spoke to my new clauses and explained why the Government have taken the avenue that they have in redefining the power of arrest, but she did not say whether there is any way of qualifying the powers in the Criminal Justice Act 2003 and other legislation that flow from the term ''arrestable offence'' to ensure that they are used only in cases in which the seriousness of the offence merits their application. Whenever Committees have considered new powers of this kind, Ministers have been quick to assure us that they will apply only to arrestable and therefore more serious offences. Now that we are making every offence arrestable, all those assurances are worthless. That is a genuine concern for many of us.
Perhaps I can give the hon. Gentleman some assurance; I apologise for not dealing with the matter in my original remarks. I refer him to schedule 7. The trigger powers—powers to search and set up road blocks, and all the powers that emanate—will relate to offences that are triable either way or only on indictment, not to offences that are triable summarily only. We have tried to set a higher threshold. I take the hon. Gentleman's point about that. With the abolition of the concept of arrestable and serious arrestable offences, the setting of a threshold at the level of indictable offences should reassure the hon. Gentleman that the powers will not be exercised in an arbitrary fashion. Some of them are quite intrusive, and they should require a higher threshold.
That is very helpful, and if the Minister had made those comments earlier I might not have spoken again, so I hope that she will forgive me. Although she has gone some way towards reassuring me, I still have concerns about various aspects of the clause and continue to believe that the provision on powers of citizens' arrest is unsupportable in its present form.
I repeat my gratitude to the Minister for the way in which she has handled the debate, and enabled us to engage in proper Committee debating, with an exchange of views rather than just formal set speeches.
To deal first with the question of the arrest without warrant by a constable, I am still concerned about how the provision will work in practice. I am sure that the Minister appreciates that it is difficult for we parliamentarians to pass legislation that is to rely on codes of practice—on a wing and a prayer, to some extent. I share the view of the hon. and learned Member for Redcar that it is possible to improve the relevant provisions and I am pleased that the Minister has agreed to think further about it. I continue to be concerned that the power could bite two ways: it could leave an officer unclear as to how seriousness had a bearing on whether he could intervene in any offence; and proposed new section 24(5)(e) of PACE could be used as a catch-all excuse for an officer who wanted to exercise his powers to justify arresting someone. Those are specific concerns.
That said, I am not minded to press to the vote any of the amendments that I tabled as probing amendments to proposed new subsections (1) to (6). I shall wait to see what the Minister has to say. Perhaps she will write to Committee members before Report, explaining the Government's approach and their response to the debate, which that would be helpful. If not, I suspect that we shall return to the issue on Report in some form or other, when I have had time to think further about the implications
As for arrest without warrant by other persons, I am pleased that the Minister is to think again about that as well. I had the impression from her words that she will think again about that in perhaps a slightly more fundamental way than she will about the first part of the clause. There remains, I believe, a big problem. I am a great believer in citizens feeling empowered to enforce the law—indeed, I think one of the real problems in this country today is that people feel disempowered to intervene, even when they could probably do so quite safely. I am not suggesting that people should expose themselves to risk, although some may choose to do so, but in some instances there is no prospect at all of restoring order and reducing disorder unless citizens are prepared to intervene proactively.
I do not want to deter citizens from such action, but I am bound to say the provisions that we are considering will allow every officious little intermeddler to have a field day. Neighbours will arrest each other. I foresee the most dreadful complications as the police are constantly summoned to take over the custody of the person arrested when they are not in a position to respond.
The Minister faces a problem, because removing the distinction between an arrestable and a non-arrestable offence, which I suppose is implicit, if not explicit, in the first part of the clause, raises the difficult question of what criteria should be satisfied for somebody to be allowed to conduct a citizen's arrest. If the Minister moves away from the established principle, under which the arrestable offence should be punishable by five years' imprisonment, she will have to produce a definitive list and ensure that trivia are kept out of that list. I refer in particular to most, though not all, road traffic matters. If someone is blind drunk and sitting at the steering wheel of car about to drive off, that would be a justifiable reason for conducting a citizen's arrest. However, the Minister will have to consider that list carefully. Furthermore, once we move down that route, it will be the Government's responsibility to provide in a brochure a bit of publicity about what people can and cannot do. I would certainly support the Minister in that.
I am pleased that the Minister has agreed to retain the power of arrest for breach of the peace. She cited two good examples and I can think of a number of others. On Thursday we shall consider incitement to religious hatred, about which I have serious reservations, as the Minister knows. However, I have always been of the view that if somebody stands on a street corner and starts uttering inflammatory language that causes a crowd to gather and threaten to start a riot, the power to remove the person who is causing that serious irritation and is about to precipitate a serious breach of the peace is one that the police should feel ready to exercise—and, in my experience, they have done so. That power is an important moderating feature. The police can go up to somebody and say, ''Look, if you carry on like this, we will have to arrest you for breach of the peace. Go home.'' That can be a useful tool in sensible policing, so I am pleased that it is to be retained, just as I am pleased that it is available in the context of domestic violence and the other matters that the Minister mentioned.
I do not wish to press most of my amendments in the group, but, taking the matter in the round, I shall press amendment No. 166, which would delete the provisions on citizen's arrest. I wish to encourage the Minister, but I cannot let provisions that are in such a dreadful state pass without registering a protest. On the assumption that that is possible, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question put, That the amendment be made:—
The Committee divided: Ayes 6, Noes 9.