Clause 260 - Provision of additional police services

Energy Bill [Lords] – in a Public Bill Committee at 10:00 am on 20 June 2023.

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Photo of Alan Whitehead Alan Whitehead Shadow Minister (Department for Business, Energy and Industrial Strategy) (Energy and Climate Change), Shadow Minister (Climate Change and Net Zero) 10:00, 20 June 2023

I beg to move amendment 162, in clause 260, page 230, line 23, at end insert—

“(d) the provision of the additional police services in question is within the competence and in accordance with the usual operational practices of the Civil Nuclear Constabulary”.

Photo of Rupa Huq Rupa Huq Labour, Ealing Central and Acton

With this it will be convenient to discuss the following:

Amendment 163, in clause 260, page 230, line 33, after “Secretary of State”, insert “or the Police Authority”.

Clause stand part.

Clauses 261 to 263 stand part.

Photo of Alan Whitehead Alan Whitehead Shadow Minister (Department for Business, Energy and Industrial Strategy) (Energy and Climate Change), Shadow Minister (Climate Change and Net Zero)

I remain quite amused that we smuggled a euro or two into our flexibility structure a moment ago. I am sure that that will go down in history.

Clauses 260 to 263 relate to the Civil Nuclear Constabulary. For those who do not know too much about that constabulary, as I must admit that until recently I did not—

Photo of Mark Jenkinson Mark Jenkinson Conservative, Workington

I am sorry for taking up so much of the hon. Gentleman’s time this morning, but on that note, I have a drop-in with the Civil Nuclear Police Federation at 12 o’clock today in room Q in Portcullis House. I encourage all colleagues to attend.

Photo of Alan Whitehead Alan Whitehead Shadow Minister (Department for Business, Energy and Industrial Strategy) (Energy and Climate Change), Shadow Minister (Climate Change and Net Zero)

That is a very helpful intervention, because among other things it means that our business will have to be finished by 12 o’clock this morning to facilitate our collective visit to the drop-in to be better informed about the Civil Nuclear Constabulary.

The Civil Nuclear Constabulary was established under the 1965 Act. It has about 1,500 officers nationally; they occupy eight sites in England and three in Scotland. There is a headquarters in Culham, with a chief constable and so on. It is just like a police authority, only not geographically in one place. Its prime responsibility is not guarding nuclear sites—that is for the Ministry of Defence police and the Army, basically—but the security of the sites and all that goes with policing around nuclear sites. I think it has jurisdiction up to 5 km away from nuclear sites. I will be interested to hear more about this, but as I understand it, it is a very specialised force.

All members of the Civil Nuclear Constabulary are routinely armed and are trained to that extent. They undertake virtually no arrests. A couple of years ago, they made a total of 24 arrests; last year I think they made 10, two of which turned out not to be arrestable. In comparison, an ordinary police force of the same size, such as Dorset police, would make about 7,500 arrests in an average year. The profile of the Civil Nuclear Constabulary’s activity and specialities is very different from that of an ordinary police force.

That is not saying very much about the Civil Nuclear Constabulary, other than that it is a specialist force, has jurisdiction relating to nuclear sites and, as far as I understand it, does a very good job at what it is asked to do. The clauses before us are not about the Civil Nuclear Constabulary itself, but about the extent to which its officers might, as it were, be rented out to other police forces. “Rented out” sounds a rather pejorative way of putting it; it is not intended to be, but that is really the only way I can describe it.

The clauses concern the circumstances under which officers can be seconded—I would say rather more than seconded—to other forces, subject to a decision of the Secretary of State. Clause 260(1), which will amend the Energy Act 2004, states:

“The Constabulary may, with the consent of the Secretary of State, provide additional police services to any person”,

which basically means to any other police authority.

Clause 260 also states that the Secretary of State

“must not give consent for the purposes of subsection (1) unless satisfied, on an application made by the Police Authority”,

which I assume means the Civil Nuclear Police Authority, that the application

“is in the interests of national security” and

“will not prejudice the carrying out of its primary function under section 52(2)” of the 2004 Act.

The establishment of the Civil Nuclear Police Authority is a little anomalous, by the way. It was originally under the jurisdiction of the Department for Business, Energy and Industrial Strategy and has now effectively been transferred to the jurisdiction of the Department for Energy Security and Net Zero, rather than the Home Office, as is the case with ordinary police forces.

Basically, clause 260 concerns the provision of additional police services, or renting out police, to other police authorities. Further clauses not only provide arrangements enabling additional police services to be provided to other police authorities, but provide that the police authority may expect to receive money from other police forces for those additional police services. The term “renting out” is not completely redundant, inasmuch as it is clear that compensation will change hands. The constabulary will be compensated in some way for the police services provided, rather like when a footballer is loaned out for part of a season, whether the team pays the whole of their salary or only part of it.

It appears that the Secretary of State may determine that renting out police is not a good idea. The police authority is involved in consultation with the Secretary of State as to whether the renting out arrangements should be progressed, should come to an end or should be temporarily brought to an end. Conspicuously, however, the chief constable of the force does not appear to have any say, in operational terms, in whether his or her officers are to be rented out in the way described. That gives rise to a number of considerations about which I hope the Minister will be able to say a little more, and which are reflected in our Opposition amendments.

The first overall conceptual consideration that perhaps we ought to think about is whether, if there are apparently circumstances in which any number of the Civil Nuclear Constabulary may be rented out, that brings into question whether the Civil Nuclear Constabulary itself is properly established. Is there routinely a surplus of officers who are signed up to the Civil Nuclear Constabulary but are not generally needed for its purposes and can easily be provided to other authorities on a routine basis, or is this to be just an occasional thing when a police authority has a desperate need at a particular juncture?

Can the Civil Nuclear Constabulary proceed with its business under those circumstances? Since it was set up by the Energy Act 2004 with different forms of responsibility, I presume that, as matters stand, the forces are effectively legislatively separate. The amendments proposed to the Act therefore give force to the idea that police can be transferred between authorities. I presume that if the Civil Nuclear Constabulary were not established as a separate authority under a different Department, the transfers would potentially be reasonably straight-forward.

I do not know what the arrangements are between police authorities at the moment, but there are certainly pretty routine transfers between authorities. If there is a large event, particularly a large civil disturbance or a civil disaster, police will be transferred in from all sorts of other authorities on a reasonably routine basis. I am not sure what the arrangements for compensation are, but that is how it works. Clearly that is not so with the Civil Nuclear Constabulary.

The second issue, which is of particular moment, is the circumstances under which police officers are recruited, trained and made operational within the Civil Nuclear Constabulary. As I have said, and as I am sure we will learn further if we go to the drop-in—I cannot remember which room the hon. Member for Workington said it was in—

Photo of Alan Whitehead Alan Whitehead Shadow Minister (Department for Business, Energy and Industrial Strategy) (Energy and Climate Change), Shadow Minister (Climate Change and Net Zero)

If we go to room Q, we will find out more, but civil nuclear constables are special police. They are recruited and trained in a different way, their responsibilities are different, and the activities they undertake are normally different. That gives rise to questions about whether civil nuclear constables can easily be transferred to other police authorities. I assume that the rental agreement would state whether they should undertake the ordinary activities that constables in comparable authorities undertake. Are they to be rented out on the basis that they will become ordinary police constables in a particular authority, or on the basis that they have special arrangements? They clearly will not have special arrangements concerning arresting people, so I imagine that the arrest rate of a police authority that had recruited police constables from the Civil Nuclear Constabulary for additional services would not go through the roof. Such constables are routinely armed, so there is also a question about whether they would be disarmed for the purpose of undertaking their duties in other police forces.

The answers to such questions do not appear in the clauses before us. There is just an arrangement that police constables can be rented out, that compensation can be paid for them, that the Secretary of State can intervene if he or she thinks there are problems, and that the police authority has to be consulted about renting out and, as it were, de-renting—that is all that the clauses cover.

I do not necessarily imagine that our amendments will be pursued to a great extent, but I would very much like to hear the Minister’s response to what they are trying to do. On the renting out of police, amendment 162 would clarify that

“the provision of the additional police services in question is within the competence and in accordance with the usual operational practices of the Civil Nuclear Constabulary”.

That is, those police who are rented out are not to be turned into ordinary police, and the circumstances of the renting out should be within the competence of the Civil Nuclear Constabulary, so we should not reasonably expect them to turn out to be ordinary policemen in other police authorities.

Also, we want the Civil Nuclear Police Authority to be rather more involved in decisions as to whether to continue renting out, so amendment 163 would add the words “or the Police Authority” after “Secretary of State”. We are trying to tighten up both the concept and the practice of these arrangements, to ensure that there is respect for the fact that the Civil Nuclear Constabulary is a specialist service, with staff who have special skills, qualities and qualifications that may differ from those of police in other forces. Renting-out arrangements should respect that. We should be a little careful to ensure that we do not put a square peg in a round hole through this renting out, even though there may be circumstances where a freer interchange of police between the Civil Nuclear Constabulary and county police forces could take place, and would benefit both sides.

I appreciate that clauses 260 to 263 to some extent supply what was left out from the Energy Act 2004, in which the Civil Nuclear Constabulary was defined, but I am not sure that the clauses do the job completely, and make sure that the strengths and qualities of the Civil Nuclear Constabulary are properly reflected in any renting-out arrangement, and that its constables are not expected to do things for which they are not trained, or in which they do not have experience, if they are seconded to other constabularies.

Photo of Andrew Bowie Andrew Bowie Parliamentary Under Secretary of State (Department for Energy Security and Net Zero)

First, as the Civil Nuclear Constabulary will be in room Q, Portcullis House, at midday today, at a meeting hosted by my hon. Friend the Member for Workington, I pay tribute to all the officers and staff who serve so diligently in that constabulary. I had a very enjoyable and informative meeting with Chief Constable Simon Chesterman and the chairman of the Civil Nuclear Police Authority, Susan Johnson, a couple of weeks ago. The constabulary serves this country and does incredibly important work protecting our civil nuclear fleet. It is incredibly well trained for that.

The hon. Member for Southampton, Test, referred to “ordinary” policing. Yes, Civil Nuclear Constabulary officers are highly trained in armed policing, and in the specialties that they have to be trained in to carry out their job, but they are also trained in what he described as ordinary—unarmed—policing, and are held to stringent College of Policing standards, such as those set out in the authorised professional practice armed policing guidance. That is consistent across the organisation, regardless of which site an officer is deployed to, and that would remain the case if there was any expansion of the constabulary’s services.

The Secretary of State must consult the chief constable before providing consent to the constabulary providing additional services. That ensures that the views of the person who is arguably best placed to assess competence and operational arrangements is taken into consideration. Should the CNC take on additional responsibilities outside the civil nuclear sector—we have been talking about that today—the chief constable will be responsible for ensuring that any additional training requirements are identified and delivered. I hope that addresses the concerns of the hon. Member for Southampton, Test, on that point.

The Civil Nuclear Constabulary is a crucial component of our civil nuclear security system, as the specialist armed police force dedicated to the protection of our most sensitive civil nuclear facilities, and of civil nuclear material in transit. In the evolving national security and energy landscape, we want to ensure that we are making the best use of our resources to protect the UK’s essential services and critical national infrastructure, as well as our wider national security interests.

Clause 260 will allow the Civil Nuclear Constabulary to provide policing services beyond civil nuclear sites, if consent is granted by the Secretary of State. The clause sets out three criteria that the Secretary of State must be satisfied are met before granting consent: first, that any additional police services will be in the interests of national security; secondly, that the CNC’s core nuclear security mission will not be prejudiced; and, thirdly, that it is reasonable in all circumstances for the CNC to provide those services.

The hon. Gentleman’s amendment 162 would add a fourth test to the criteria: that the provision of the additional police services in question is within the competence of, and in accordance with, the usual operational practices of the CNC. I share his concern that CNC officers should not be performing duties that they have not been trained and equipped for. However, I believe that the test is already covered by the third element—that the additional police services should be reasonable in all circumstances. I also refer hon. Members to my earlier point: all police officers in the CNC are held to, and trained to reach, the highest standards.

That third test is designed to require the Secretary of State to take into consideration all relevant factors when asked to give consent to the CNC providing additional policing services. That could include, for example, whether the CNC will have the necessary skills and training. All activities will, of course, be in compliance with the applicable legislation and within the operational competence of the force. I do not believe, therefore, that the suggested fourth condition is necessary, and I humbly ask that amendment 162 be withdrawn.

Amendment 163 would enable the withdrawal of consent if the Civil Nuclear Police Authority considers that the criteria are not met. The CNPA is the body that will enter into agreement with the person or persons to whom additional police services will be provided, when consent is given. The CNPA can therefore agree its own contract exit terms with the customer, which makes statutory provision unnecessary. In addition, I reassure the Committee that the Secretary of State would consider the views of the CNPA when considering whether it is appropriate for the CNC to provide policing services outside its core civil nuclear mission. I hope that the hon. Gentleman feels reassured that the CNPA will have appropriate controls over the activities of the CNC, and therefore feels able to withdraw amendment 163.

Clause 260 will amend the Energy Act 2004 to enable the Civil Nuclear Constabulary to use its expertise in deterrence and armed response to provide a wider range of policing services beyond the civil nuclear sector, in the interests of national security. That could be used to enable the CNC to provide armed guarding services to other facilities that provide vital services, or to deliver other protective policing in response to emerging threats. The security of our civil nuclear sites and materials will remain the CNC’s core priority. The clause requires that, before granting consent for the CNC to take on additional services, the Secretary of State must be satisfied that the CNC’s core nuclear security mission will not be prejudiced. It also includes an ongoing statutory duty on the CNC’s chief constable to ensure that that remains the case.

Furthermore, the clause sets out provisions to ensure transparency and make amendments in relation to the CNC’s jurisdiction. By empowering the CNC to deliver a wider range of services, the clause will help it to retain specialist personnel to protect civil nuclear projects such as Hinkley Point C, as well as to improve value for money for the taxpayer from the civil nuclear industry.

In addition to delivering its core mission, the CNC plays an important role in supporting local police forces and national counter-terrorism operations. For example, it has supported the policing of major public events, such as the Commonwealth games, the G7 summit and COP26. To my knowledge, it also helped police London bridge and the recent coronation. During those deployments, CNC officers operate under the control and direction of the chief constable of the host force that they are supporting. The CNC uses collaboration mechanisms available under section 22A of the Police Act 1996, which requires individual collaboration agreements to be signed with each territorial force. That introduces bureaucracy that hinders the CNC’s ability to support other police forces during emergency incidents and other periods of unanticipated demand. Clause 261 will amend the Energy Act 2004 to streamline arrangements for the CNC providing support to other police forces in England, Wales or Scotland. That will allow the CNC to provide support for both spontaneous and planned deployments more quickly and effectively, and to provide specialist support as required.

The powers are in line with those already available to the England and Wales territorial police forces, the British Transport police and the Ministry of Defence police. The clause makes consequential amendments to ensure that, as with other forces, where the CNC is providing assistance under this arrangement, CNC officers would be under the direction and control of the chief officer of the requesting force, and would have the same powers and privileges as a member of that force. The powers are subject to safeguards to protect the CNC’s primary civil nuclear security function. The clause also makes provision for charging arrangements for that assistance.

Clause 262 will enable the CNC to exercise cross-border enforcement powers, in line with the powers already available to the territorial police forces and the British Transport police. It will do that by adding members of the CNC to the list of constables able to exercise their powers in part 10 of the Criminal Justice and Public Order Act 1994. That will clarify the CNC’s power to execute warrants, or powers of arrest where a person who is suspected of committing an offence in one part of the UK, such as Scotland, needs to be apprehended in another part of the UK, such as England. The clause does not allow the CNC to exercise those powers in Northern Ireland, since the CNC does not operate in Northern Ireland.

Turning to clause 263, the Civil Nuclear Police Authority is the body responsible for ensuring that the Civil Nuclear Constabulary remains effective and efficient in delivering its vital nuclear security mission. Under the Energy Act 2004, the authority is required to publish a three-year strategy plan, which sets out the police authority’s medium and long-term strategies for policing by the CNC to be achieved over a three-year period. The Act requires the authority to publish such a plan at the beginning of each financial year. The annual publication requirement creates significant administrative burdens, and introduces an element of uncertainty to the CNPA’s delivery of its policing priorities in each three-year strategy-plan. Following a review of the governance procedures by the Department and the CNPA, it was concluded that the Energy Act should be amended to require a three-year strategy plan to be published every three years. That will improve efficiency and provide greater long-term certainty and stability for the organisation. Clause 263 does not affect wider obligations for the authority to publish annual reports and policing statements.

Photo of Alan Whitehead Alan Whitehead Shadow Minister (Department for Business, Energy and Industrial Strategy) (Energy and Climate Change), Shadow Minister (Climate Change and Net Zero) 10:30, 20 June 2023

The Minister addressed the overall subject of the Civil Nuclear Constabulary well, but I do not think that he entirely addressed our questions, which were not about the competency of the constabulary, or its establishment or function. Our questions were about the new provision that the Government are seeking to introduce regarding the extent to which police personnel could perform a wider function, depending on circumstances in the Civil Nuclear Constabulary.

By the way—this may be a reasonable topic for discussion in a drop-in—I would not like the Civil Nuclear Constabulary to be assumed to be an ancillary police force with some special responsibilities. It is clearly a very specialised and highly trained police force with a particular set of duties. By and large, it should have the necessary number of police constables to perform its duties. If over time—this may be something for the Department to consider, since it has special responsibility for the constabulary—the general conclusion is reached that this is a police force to which, to put it a bit unpleasantly, other forces can help themselves when they are in periods of stress, that would not be very good for the future of the constabulary.

There is another alternative. As the Minister mentioned, the police authority has to carry out three-year reviews. If during those reviews it is thought that substantial numbers of the police force had been rented out over the review period, there may be a temptation for a future Secretary of State—not present Ministers; I am sure they have a very close eye on what the Civil Nuclear Constabulary is doing and how it carries out its role—to say, “The Civil Nuclear Constabulary does not need all these people. Let’s reduce its size. Let’s cut it down to a smaller number, because that will do for its operations—we can see that it is renting out quite a lot of its force for other purposes.” That would be a retrograde step.

The Minister prayed in aid, as a reason not to pass the amendment, proposed new section 55A(4)(c) of the Energy Act 2004, in which the Secretary of State must judge that

“it is reasonable in all the circumstances for the Constabulary to provide those services.”

That is a bit of a problematic, I would have thought; how do we judge what is

“reasonable in all the circumstances”?

For that to apply, the officers must be “surplus to requirements”, but most reasonable judgments would be, “Well, they are not surplus to requirements. They are a key part of the Civil Nuclear Constabulary and they are doing a good job.” I would therefore expect that there would be a fairly high bar as to what was

“reasonable in all the circumstances”,

but that is not defined. Our amendment attempts to define that effectively, by saying that the release of these officers would be

“within the competence and in accordance with the usual operational activities of the Civil Nuclear Constabulary.”

We do not want to press the amendments to a vote, but I would like the Minister to give some assurance on the record that the

“reasonable in all the circumstances” judgment would, in practice, be a full and close partner to the definition we attempted to apply to the leasing arrangement through amendment 162. Unless that is stated on the record, we will worry about the temptation to play fast and loose with the Civil Nuclear Constabulary when there are pressures elsewhere.

Photo of Andrew Bowie Andrew Bowie Parliamentary Under Secretary of State (Department for Energy Security and Net Zero)

To clarify, the expansion of the CNC will not in any way affect the CNC’s core mission. We are absolutely not playing fast and loose with the Civil Nuclear Constabulary. The CNC’s priority and core function will remain the protection of civil nuclear sites and material, in line with the UK’s international obligations. Before granting consent for the CNC to take on additional services, the Secretary of State must be satisfied that the CNC’s core nuclear supervision will not be prejudiced in any way. This legislation includes an ongoing statutory duty for the CNC’s chief constable to ensure that that remains the case. I hope the hon. Member will withdraw his amendment on that basis.

Amendment, by leave, withdrawn.

Clauses 260 to 263 ordered to stand part of the Bill.