Terrorism Act 2000 (Proscribed Organisations) (Amendment) (No. 3) Order 2016

Baroness Hamwee Excerpts

Thursday 15th December 2016 Lords Chamber

I would like to ask just two questions, although I want to make it clear that we welcome and support the order. First, how easy or otherwise will it be for this organisation to get round the order? Can it do that simply by renaming itself or setting up another organisation, which may not be all that difficult? Is it more complicated for an organisation in this position to get around the order which we hope will be made this evening? Secondly, are there any other right-wing organisations—I stress, without naming them—of similar views, means of operation and objectives to National Action in the sights of the Government for adding at some future stage to the list of proscribed organisations?

[Baroness Hamwee (LD)]

My Lords, I too thank the Minister for her careful explanation. I will not oppose the order, but this is a moment for reminding ourselves of the distinction between distasteful and, in a non-technical sense, offensive speech and the promotion of terrorism and other actions which are the criteria for proscription. In that connection, I would like to remind myself and the House of the importance of freedom of speech.

The Minister described some of the activities of National Action. I have read of its advocacy that, when it assumes power, those who promote liberal values, tolerance and multiculturalism will be “in the chambers”. She referred to photographs taken in what had been gas chambers. It has used the phrase “Hitler was right”; it is quite clear what it means by “the chambers”. When one of its members was jailed for a series of anti-Semitic tweets against the Member for Liverpool Wavertree, National Action led a campaign to have him freed. It clearly supports violence to achieve its political goals and has gone well beyond the bounds of free speech, into advocating violence and engaging in acts to “compel, coerce or undermine” the Government, which is engaging in terrorism.

However, that is a stronger definition of terrorism than in the current legislation. This definition was first advocated by my noble friend Lord Carlile of Berriew in 2008, when he was the Independent Reviewer of Terrorism Legislation. It was supported by David Anderson, the current reviewer, in 2014. National Action clearly falls within both the legal and recommended definitions of a terrorist organisation, but I wonder whether the Minister has anything in her brief about these recommendations. David Anderson also recommended that proscription should be for a limited period and subject to renewal. I would be grateful if the Minister could say whether this order is time-limited or in some way subject to review.

As the Minister said, this is the first order against a right-wing organisation that advocates terrorism. I understand—I think these figures are from the National Police Chiefs’ Council—that the number of far-right referrals to the Prevent programme increased from 323 in 2014-15 to 561 the following year, which must be the most recent year for which we have figures. Does the Minister have any comments on that?

These Benches support freedom of speech and this proscription, and it has occurred to me, listening to this debate, that an organisation such as this infringes the right of free speech for the rest of us.

[Baroness Williams of Trafford]

I thank noble Lords for their constructive comments. The noble Lord, Lord Davies, asked about the freezing of funds. As I outlined in my speech, it is entirely possible and we freeze assets, but we do not comment on whether individuals are being considered for an asset freeze. If that were the case, it would be an operational issue for the police and the Treasury.

On how easy it is to get round the order if an organisation is renamed or a new organisation is set up, if organisations change their name, they remain proscribed. We can, of course, also lay a name change order to clarify that they remain proscribed. We most certainly keep extreme right-wing groups under review, as we would with any other type of proscribed organisation, but we do not routinely comment on whether an organisation is under consideration. I hope that answers noble Lords’ questions. I thank noble Lords for their comments.

Policing and Crime Bill

Baroness Hamwee Excerpts

Report: 3rd sitting (Hansard): House of Lords
Monday 12th December 2016 Lords Chamber

Moved by

[Baroness Hamwee]

179A: Clause 144, page 161, line 22, after “constable” insert “reasonably”

[Baroness Hamwee (LD)]

My Lords, I often feel when I have the first amendment after Questions that I should explain to Members of the House that it may not be the showstopper that they will be expecting later in the afternoon. Also in this group are government Amendments 180 and 181, which also relate to the requirement to state nationality. I thank the Government for their amendments. I will leave the Minister to decide whether I am insufficiently grateful or was simply asleep on the job when we debated this previously.

Amendment 179A deals with the new section to the UK Borders Act introduced by Clause 144. The requirement to state nationality is not a casual inquiry. It will be a criminal offence not to give nationality in the circumstances set out and it will carry sanctions of a fine and imprisonment. We propose in this amendment that the requirement should be made only if the immigration officer or police officer concerned reasonably suspects the individual not to be British. Amendment 179B contains a similar amendment to the requirement to produce a nationality document. We regard this as appropriate if one is to have these provisions at all and believe they should reflect the Immigration Act of earlier this year in which provisions about searching a person or premises for a driving licence require,

“reasonable grounds for believing that a person … is not lawfully resident in the United Kingdom”.

Inserting a requirement of reasonableness seems entirely appropriate.

Government Amendment 180, which responds to an amendment proposed by the Joint Committee on Human Rights, of which I am a member, seems a little narrower than that proposal, which referred to,

“alternative documents sufficient that such a document would normally be issued by the relevant authorities”.

Our Amendment 180A takes what amounts to documents that enable the establishment of nationality a little further than what would normally be sufficient to establish it. It occurred to us, for instance, that when a person’s country is in a state of conflict it may not be possible to follow through to the establishment in the way that the government amendment requires. In other words, it would not be possible to fulfil the requirement.

Amendment 181 with regard to pilot schemes is welcome. Can the Minister tell the House where the pilots will take place, how long they will last and, especially, what is “effectiveness”, which is referred to in the amendment? The Delegated Powers and Regulatory Reform Committee has commented on this amendment, which it calls “a sub-delegation of power”—which is one for the real aficionados of constitutional niceties—and said that it,

“would expect to be given a compelling justification for any such power of sub-delegation, why it is needed and how it is intended to be exercised”.

It very delicately made the point, about which I will not be so delicate:

“The scope … is potentially significant and could … allow the obligations … to be targeted on different classes of persons”.

As the Minister will be aware, we are concerned about the possibility of discrimination in the application of the provision.

The DPRRC went on to say that,

“‘piloting’ generally means that powers are being conferred to apply new statutory provisions unevenly and temporarily on an experimental basis. For this reason, we usually expect certain standards to be met in relation to pilot schemes”,

which it sets out as:

“the intended purpose of the pilot regulations”;

use of the affirmative procedure; a requirement on the Secretary of State to “consult interested parties”; to,

“provide on the face of the Bill for the maximum duration of any pilot regulations”;

and to require the Secretary of State to report on their “outcome and effectiveness” and lay the report before Parliament. The committee makes recommendations to that effect. The Minister will obviously be aware of the DPRRC’s report. I hope she will respond to each of those items.

Amendment 181A reflects our concern that it will be only too easy for the clauses to allow for racial and ethnic discrimination. It would not be the first time that assumptions have been made by law enforcement officers. The Home Office under the previous Home Secretary was particularly aware of the importance of stop-and-search powers not being applied in a discriminatory fashion and disproportionately. Our amendment would require an assessment in this regard. Amendment 181B would require a report on that assessment—not just on possible discrimination, but on effectiveness.

Amendment 181BA is on the same theme. We were concerned—I was going to say on these Benches, but it was not only on these Benches—during the passage of the Immigration Bill about what I have heard badged as the “offence of driving while black”: in other words, somebody subject to discrimination who is required to produce a driving licence or documents to prove he is entitled to drive. We suggest in this amendment, admittedly in deliberately quite short order, that the review should focus on the application of the provisions in the relevant clauses in this Bill and the sections in the Immigration Act, the effects of which focus in particular on ethnicity and nationality.

The Minister may regret putting the pilot scheme into the Bill rather than just announcing it, having all these questions asked of her, but we welcome the careful approach she has signified. We are keen to follow it through, as I hope our amendments and my remarks indicate. I beg to move.

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[Baroness Chisholm of Owlpen]

I will write to the noble Lord to clarify that point.

[Baroness Hamwee]

My Lords, I am grateful to the noble Lord, Lord Kennedy. When the noble Baroness writes, perhaps she can also explain this about what the Government did in the Immigration Act 2016. For this purpose, I simply refer to Section 43, which introduces a new paragraph in Schedule 2 to the 1971 Act providing for power to be exercised only if the authorised officer has “reasonable grounds” for believing that, in this case, the driving licence is on the premises. The very fact that that terminology is used in legislation which we passed a mere few months ago must raise the question of why it is not included in the comparable clause in this Bill. I know that the noble Baroness cannot answer this at the moment, but I hope that as well as writing, she might be able to discuss this with officials. It is an intrinsically important point, but also a technical one, as to why it should not be included in this Bill. Perhaps we can come back to this at Third Reading. I am not of course expecting her to do anything other than nod sympathetically, as she is doing.

The Delegated Powers and Regulatory Reform Committee will no doubt consider the Government’s response, but I note that on the question of the affirmative procedure, the Minister said that she did not think that these regulations should be subject to parliamentary procedure. The committee also suggested, or would require, that the Secretary of State should consult interested parties before making the regulations. I am not sure—I might have missed it—whether she referred to the maximum duration of pilots. I accept that there will be post-legislative reviews, and that everything has to be kept under review, but it is the importance of the subject matter which led us to raise the point about requiring an ad hoc review.

I do not know whether the Minister has any information as to whether the pilots and guidance under the Immigration Act are going to be introduced in tandem with, and in the same areas as and so on, the pilots under this Bill. Does she have any information about that?

[Baroness Chisholm of Owlpen]

I think that is still under discussion at the moment with various authorities.

[Baroness Hamwee]

My Lords, we will see, but I am glad to note the Home Office’s acceptance of the importance of the issue, which I never had in doubt. I beg leave to withdraw the amendment.

Amendment 179A withdrawn.

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Moved by

[Baroness Hamwee]

187C: Clause 155, page 180, line 2, at end insert—
“( ) The Secretary of State shall, within twelve months of the passing of this Act, undertake a consultation with regard to senior coroners’ duties to conduct inquests into the death of persons deprived of liberty under section 4A(3) or (5) or 4B of the Mental Capacity Act 2005.”

[Baroness Hamwee]

My Lords, this amendment is in my name and that of my noble friend Lord Paddick. In Committee the noble Baroness, Lady Finlay, proposed an amendment which is now in the Bill as Clause 155. Our amendment is not to challenge the clause but to ask for clarification. I have two questions. It became clear after the clause was agreed that the issue is more contentious than I had appreciated. It is about ending the automatic requirement for an inquest for those detained in the circumstances that are the subject of the provision. It is not about there being no right to an inquest; the noble Baroness made that entirely clear.

However, there seems to be a wider issue about the application and impact of deprivation of liberty safeguards—DoLS is the acronym. I was asked, as other noble Lords no doubt were, by Liberty to table an amendment to remove the clause. I said: “No: that is not only inappropriate but our procedures would not allow it”—but it seems right to ask two questions.

The Government are aware of the first question. The Liberty briefing suggested that cost saving was at the heart of the amendment to the legislation. The noble Baroness, Lady Finlay, described the emotional stress for families, and I do not think she came anywhere close to cost savings. I would be grateful if the Government could tell us what cost saving is likely to be achieved by the change, or otherwise allay that fear. The second question, as is obvious from the amendment, is: what consultation did the Government undertake before the amendment that they supported on the previous occasion? I beg to move.

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[Baroness Chisholm of Owlpen]

My Lords, I am grateful to the noble Baroness, Lady Hamwee, for raising this important issue. The Government take seriously their responsibilities to the very vulnerable group of people in society whom this amendment concerns. I also thank the noble Baroness, Lady Finlay, for her deep knowledge of this issue, and for the words that she has spoken this evening.

Coroners in England and Wales play a critical role in investigating the deaths of persons where there is a suspicion that death may have resulted from violence or unnatural causes, or indeed where the cause of death is unknown. Coroners will continue to have this duty with regard to persons who have been deprived of their liberty as authorised under the Mental Capacity Act 2005. There is no restriction on when or by whom deaths can be reported to a coroner. Indeed, the registrar of deaths has a duty to report deaths to the coroner where he or she considers that the coroner’s duty to investigate may apply.

The Government recognise that there is a need to improve the scrutiny of deaths that are not investigated by a coroner. The Coroners and Justice Act 2009 contains provisions to introduce medical examiners who will contact the deceased’s family and those involved in the deceased person’s care to identify any concerns as part of a reformed death certification process.

We consulted on our proposals earlier this year and aim to publish our response to the consultation in the new year. This will of course be particularly relevant to vulnerable people in hospitals and care homes, regardless of whether they are being deprived of their liberty. Medical examiners will not just be responsible for scrutinising individual deaths not investigated by the coroner but will have a role in analysing data on deaths across their area. They will identify patterns and contribute to lessons that will reduce avoidable deaths. They will also have a duty to report to coroners deaths for which a coroner’s investigation may be required.

The effect of Clause 155 will be that the death of anyone subject to a deprivation of liberty safeguards authorisation, or an appropriate Court of Protection order, will no longer trigger an automatic coroner’s investigation. We supported this change in the law in the light of views expressed by the then chief coroner, his honour Peter Thornton QC, in his 2015-16 annual report. He called for immediate action to remove deprivation of liberty safeguards cases from the definition of “in state detention”—a point that, just prior to his recent retirement, he reiterated to the Minister for Victims, Youth and Family Justice.

The issue here is not simply one of the resources needed to undertake these inquests. The then chief coroner had addressed this to some extent through his 2014 guidance, revised in 2016, which set out a streamlined process. But, as he has said, these inquests “serve no good purpose”. It cannot be right that more than 20% of inquests undertaken each year are unnecessary, with all that that implies in terms of added anguish for bereaved families.

I thank the noble Baroness for raising the profile of this important issue, but I hope that she will accept that the Government’s recently completed consultation on reforming the death certification process will, when its proposals are implemented, complement and support the work of our coroners who investigate suspicious deaths.

I think that the noble Baroness, Lady Hamwee, asked who we consulted in the consultation. The Ministry of Justice consulted the former and current chief coroner. Having said that, we consider that this removes any further need for further consultation on the coroner’s statutory duties, and I hope that the noble Baroness will therefore be content to withdraw her amendment.

[Baroness Hamwee]

I thank the Minister, but I cannot restrain myself from observing that her answer has been that there has been a consultation and that the Government will publish their response to it next year. I say that as nicely as I can, because clearly a lot of work has gone on with regard to this—and I am grateful to the noble Baroness, Lady Finlay of Llandaff, as well, for filling out the information that she gave pretty comprehensibly to the House on the last occasion. I beg leave to withdraw the amendment.

Amendment 187C withdrawn.

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[Lord Rosser]

I will be brief, but my name is attached to most of the amendments which we are now addressing. A victims’ rights Bill was introduced in the other place last year by the then shadow Home Office Minister, Sir Keir Starmer, and it had all-party support. As the noble Baroness, Lady Brinton, has said, victims’ rights are largely covered by entitlements in the victims’ code and affected by various other initiatives in recent years. However, the key thing is that the code is not legally enforceable and feedback from victims suggests that it is not applied by the relevant agencies. Maybe that is because they are aware that a failure to provide the service does not make a service provider liable to any legal proceedings. Lack of information and support to victims are the major areas of concern, with victims prioritising the right to information, protection, treatment and support as the highest priorities. These amendments place victims’ rights in a statutory framework and place a statutory duty on the Secretary of State to publish and implement a strategy to provide training for all relevant professionals and agencies on the impact of crime on victims. In essence, these amendments lay down what support should be offered to victims, how that support is managed, what training is necessary to put it into place and how complaints can be pursued. These amendments have our support.

[Baroness Hamwee]

My Lords, I hope that my noble friend will understand that, given the further business to which the House has to attend tonight, I will confine myself to saying that we on these Benches enthusiastically support her amendments.

[Baroness Chisholm of Owlpen]

I thank the noble Baroness, Lady Brinton, for meeting with me, and for tabling these amendments again so that this House has a further opportunity to debate the important issue of victims’ rights.

Some of the amendments seek to place aspects of the Code of Practice for Victims of Crime on a statutory basis. This is a statutory code, provided for by the Domestic Violence, Crime and Victims Act 2004, and as such all criminal justice agencies are required to provide the services victims are entitled to under it. Many of the entitlements for victims included in the proposed amendments are already in the code. Some are for all victims of crime, while others are enhanced entitlements for the most vulnerable victims of crimes such as stalking and domestic and sexual abuse. Placing them on a statutory footing separately will not ensure compliance, nor guarantee that those entitlements are delivered effectively. The effect would merely be symbolic, and make amendment and updating of entitlements more difficult.

As I said before, we recognise the importance of training for professionals who work with victims. Under the police educational framework and national curriculum, police officers and staff receive training on the code throughout their careers. Officers and staff can receive training on the code at various stages of their careers. This training is supported by a new online package launched by the College of Policing. All Crown Prosecution Service staff who attend court have been given face-to-face training on the new Speaking to Witnesses at Court guidance and on how to interact with victims and witnesses at court without undermining the fairness of the trial. This is supported by a comprehensive package of e-learning, which barristers who appear for the CPS in court are expected to complete.

We also appreciate that more can be done in relation to certain categories of crime. That is why, for example, the College of Policing, as part of reviewing its guidance on stalking and harassment investigations, is looking at whether police officers fully understand the offences and are receiving appropriate training. It is also why Her Majesty’s Inspectorate of Constabulary and Her Majesty’s Crown Prosecution Service Inspectorate are carrying out a joint inspection to assess the effectiveness of police forces and the CPS in dealing with cases involving stalking and harassment, and to examine the service received by victims. The CPS is developing a training package for its prosecutors to improve the quality of charging and review decisions in stalking and harassment cases.

There has also been a concerted effort to improve the response of the police in domestic abuse cases. In its most recent national thematic inspection of the police response to domestic abuse, Her Majesty’s Inspectorate of Constabulary found improvements in police attitudes towards victims and front-line officers’ understanding of the importance of dealing with victims in a supportive way. Since 2014, every police force has published a domestic abuse improvement plan, new guidance has been published by the College of Policing, new training has been successfully piloted and for the first time, police are now collecting data against a national standard on all domestic abuse recorded crimes. A joint police and CPS witness care review is looking to identify clear performance measures which would include timeliness of communication of information to witnesses as set out in the code. In addition, Her Majesty’s Courts & Tribunals Service is undergoing an audit by the Government Internal Audit Agency on the effectiveness of arrangements in place for victims and witnesses, against requirements in the victims’ code and the witness charter. Results are expected in the first quarter of 2017.

In order to determine what is required to strengthen further the rights of victims of crime, we are looking at available information about compliance with the victims’ code, and considering how it might be improved and monitored. We are also looking carefully at the range of proposals that have been made by the Commissioner for Victims and Witnesses and others. We are focused on making sure we get this work right, and ensuring that any future reform proposals are evidence-based, and an effective and proportionate approach.

Finally, in relation to Amendment 188, which seeks to provide a direct route of complaint for victims to the Parliamentary Ombudsman, I should add that on 5 December the Cabinet Office published a draft public service ombudsman Bill. The Bill will improve access to the ombudsman’s services by allowing for all complaints to be made with or without the help of a representative and in a variety of formats to meet the digital age. When the Bill is brought before your Lordships’ House, it will provide a further opportunity for noble Lords to test whether the measures I have set out are delivering the improvements to the experience of victims in their interaction with the criminal justice system that we all want to see.

I hope that, having further debated these issues and received greater detail of the work that is being undertaken both by the Government and by the criminal justice agencies, the noble Baroness will be content to withdraw her amendment.

Policing and Crime Bill

Baroness Hamwee Excerpts

Committee: 5th sitting (Hansard): House of Lords
Wednesday 16th November 2016 Lords Chamber

[Lord Kennedy of Southwark (Lab)]

My Lords, Amendment 219D, in my name and that of my noble friend Lord Rosser, would be an important step in enabling police and crime commissioners to tackle online abuse of children. Only once local police forces begin systematically collecting these data can we know the prevalence of the issue. Only once the prevalence of the abuse is known can commissioners begin to tackle it and to provide adequate resources and appropriate services. Digital technology has fuelled an explosion in these crimes over the last two decades, including children being forced to commit sexual acts online and children being groomed online for the purpose of abuse and exploitation in the real world. The impact of these horrendous crimes can be devastating, and children can be repeatedly revictimised as images of their sexual abuse are viewed online by offenders all over the world.

At a national level, progress on tackling these crimes has been made, such as the Child Abuse Image Database. The centralised expertise of the National Crime Agency also plays a key role in keeping children safe in the most severe cases, but we remain concerned about the ability of police forces to respond adequately to online offences committed against children at a local level. The recent HMIC child protection report found that there is a huge local variation in the response to these offences, including delays of up to 12 months in forensically examining devices. Such delays can have serious implications for the safeguarding of children, including children not being promptly identified and safeguarded and reoffending taking place while a device is still being analysed.

An NSPCC freedom of information request found that police use of cyberflags to monitor online sexual crimes against children is worryingly patchy. A small number of forces said they were not using this or did not know about mandatory cyberflags. It is imperative that this failure to cyberflag offences is addressed. Requiring local forces to collect these data, in addition to the data collection outlined in the Police Reform and Social Responsibility Act 2011, could help address this variation and help to build a local picture of prevalence.

In June, Operation Lattise, Police Scotland’s first national operation to crack down on online child sexual abuse, brought the scale of the problem into sharp focus and demonstrated what can be achieved when there is a focused response. Running for six weeks, the operation resulted in 77 people being arrested and charged as a result of 134 investigations. This led to more than 30 million indecent images of children being recovered.

As police and crime commissioners develop their local plans, the Government must ensure that the police focus their attention on this area, and this amendment would help to do that. I beg to move.

[Baroness Hamwee]

My Lords, no one would suggest that the issues to which the noble Lord has referred are not hugely important, but I shall make a point which may not be wholly popular. There is a limit to what legislation can do when—to me and I think to my noble friend Lord Paddick, with whom I have consulted very briefly—it is a matter of culture and practice.

I believe that police and crime commissioners have made a start on sharing information. I suspect there is a long way to go and that most of them would say that there is a long way to go, but to provide that everything that is good practice—I am probably arguing against an amendment that I have already proposed on a different issue, and more that I will propose—and that culture and practice can always be enshrined in legislation, which requires the issue to go up to the Home Office and then come down again, is something that I would not go so far as to say I am instinctively against, but I feel instinctively needs to be questioned.

[Baroness Williams of Trafford]

My Lords, I am very grateful to the noble Lord, Lord Kennedy, for bringing this forward and drawing attention to what is a very important issue. Exploitation of, and offences against, children, whether online or offline, are appalling and this Government are committed to tackling such criminality very robustly. The internet has opened up a wealth of opportunities for young people, but it has also exposed them to new dangers.

The Government are committed to improving the safety of children online and have a strong track record of working with the internet industry and the charitable sector to achieve it. However, we also recognise that our understanding of the scale and nature of the problem is far from complete, and in many ways we almost feel that we are running to stand still.

Our starting principle is that what is illegal offline is illegal online and criminal offences typically apply in both environments. However, recognising that the picture is less clear in relation to offending online, the annual data requirement on forces includes a requirement to flag offences where the reporting officer believes, on the balance of probability, that the offence was committed, in full or in part, through a computer, computer network or computer-enabled device. This online flag has been mandatory since April 2015, and all 43 forces in England and Wales have provided data since then.

The NCA’s annual strategic assessment of child sexual exploitation and abuse, published in August, found that the visibility of the threat was improving, but that there remained significant intelligence gaps in relation to the overall scale and prevalence of the threat. The NCA works continually to improve our understanding of the threat. I reassure the noble Lord and the noble Baroness that our response to the threat is rightly robust and includes law enforcement agencies taking action against online offenders, developing new capabilities to find and safeguard victims and working with the internet industry to remove illegal images.

For example, all UK police forces and the NCA are now connected to the Child Abuse Image Database—otherwise known as CAID—which reduces the time taken to undertake investigations and identify the victims. A new victim identification suite has been established by the NCA with access to CAID. In 2015-16, UK authorities identified over 450 victims from abuse images, more than double the number of any previous year and, in a recent case, the Child Exploitation and Online Protection command of the NCA was able to use CAID to review one of its largest ever seizures within six weeks. Based on the case size, before CAID this would have taken a minimum of six months to review.

In 2015-16, the NCA received £10 million of additional investment for further specialist teams to tackle online sexual exploitation. This enabled a near doubling of its investigative capacity to tackle child sexual exploitation. An NCA and GCHQ joint operational cell has also been established to target the most technologically sophisticated offenders. In 2015, 2,861 individuals were prosecuted for offences involving indecent images of children—a 27% increase on the previous year.

I hope I have persuaded the noble Lord that we are working to improve our understanding and our response to the threat and that he will withdraw his amendment.

[Baroness Hamwee]

My Lords, to add to what I said before, I think that there is a very important role for the Home Office, working in conjunction with the police and many others, on the consistency of the data, to which this amendment refers but perhaps a bit obliquely. It seems to be an issue that comes up time and time again. Yesterday a report was published by ECPAT and Missing People on young people going missing from care and one of the recommendations was about achieving consistency of data.

[Baroness Williams of Trafford]

It might please the noble Baroness to know that I have become the Minister for data and therefore anything that she can feed into the job that I will be doing will be most appreciated.

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[Baroness Hamwee]

I recommend the report.

[Lord Kennedy of Southwark]

My Lords, as the Minister said, understanding the overall scale, complexity and prevalence of the threat is crucial. I am pleased to learn what the department and the police are doing. It is important we understand this.

I accept the point about data that the noble Baroness, Lady Hamwee, made. I also accept her point on legislation. This is such a complex problem. We do not quite know what we have here, as unfortunately new things are developing all the time, so it is worth trying to explore and make sure that our legislation is correct.

However, I am very happy at this stage to withdraw the amendment.

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[Lord Kennedy of Southwark]

My Lords, young people aged 16 and 17 are still children although they are legally able to consent to sexual activity, get married and undertake a number of other matters and be deemed responsible for their behaviour. Amendment 220, in the name of my noble friend Lord Rosser and the right reverend Prelate the Bishop of Bristol, seeks to put a new clause in the Bill to create a new offence of the abduction of a vulnerable child. Most 16 and 17 year-olds are not well protected, with a tiny minority subject to the protection of the Children Act or in police protection. Children of this age can get themselves into all sorts of problems and can be targeted by adults who seek to exploit their vulnerability. The amendment seeks to create a specific offence.

Amendment 222 would require police forces to collect annually the number of child abduction notices issued, the number breached and the number of sexual risk orders and sexual harm prevention orders issued following such a breach. This information would have to be laid before Parliament in the form of a report. This would provide valuable data to both Parliament and the Government so we can see what is happening and make specific policy and legislative changes with relevant information to hand, if deemed necessary. I beg to move.

[Baroness Hamwee]

My Lords, I can sum up my comments really as, “as above”. The points I made on the previous amendments are relevant, although the report I have just mentioned called Heading Back to Harm is particularly relevant here. There are so many associated issues that I would prefer the focus to be on practice—I will add it to my point about data—including trust in authority. In some situations, lack of trust in authority is a big component in young people who have been rescued going missing again. I do not underestimate the importance of the issues at the heart of this. Can the Minister give the Committee any information about the success of child abduction warning notices, where they apply, now, before we seek an extension?

[Baroness Williams of Trafford]

My Lords, Amendment 220 would create a new offence of abduction of a vulnerable child aged 16 or 17. The offence would be in addition to the existing offence in Section 49 of the Children Act 1989, which already makes it an offence to abduct a child in care, including those aged 16 and 17. The new offence would also be in addition to Section 2 of the Child Abduction Act 1984, which makes it an offence to abduct any child under the age of 16. The new offence would extend only to children aged 16 and 17 who are considered to be vulnerable and therefore in need of additional protection.

The criteria for being considered vulnerable are set out in subsection (2) of the new clause and cover a range of circumstances defined in the Children Act 1989 and Housing Act 1996. These criteria potentially encompass a wide range of individuals and raise concerns that they would have very wide effect. For example, as drafted, the offence would cover all disabled young people of that age. The children it extends to are often in need of services such as housing and education but are not necessarily in need of special protection, as opposed to others of that age.

The Government completely share the objective of the noble Lord and the noble Baroness of ensuring that young people are protected from sexual exploitation and other abuse. That is why, in March last year, we introduced new civil orders to protect the vulnerable and disrupt offending at the earliest opportunity. We believe that providing the right powers to the police is the way forward. Our priority is to prevent offending, so making better use of these orders is a more precisely targeted response than creating a new criminal offence.

As noble Lords will be aware, a similar new clause was tabled in the House of Commons and there have been amendments to previous Bills on this issue. We remain unpersuaded that the proposed new abduction offence is the way forward. Young people aged 16 and 17 are generally deemed capable of living independently of their parents and of exercising their free will, notably on sexual matters. As noble Lords have said, we therefore need to achieve the right balance between additional protection for young people in this age group and recognition of relevant rights and responsibilities. Creating a new offence would raise difficult issues about where we draw the line, and it would not help young people who are older than this age group but are also very vulnerable.

That is why we believe that sexual risk orders provide appropriate powers for the police. I do not have the figures or any information on how the child abduction warning list is working; it might be in my pack. I apologise—I am getting quite tired at this stage of the day. I will write to the noble Baroness. The preventive civil orders are relatively new and we will therefore keep under review whether they fully address the kind of predatory behaviour to which the amendment refers.

Turning to Amendment 222, it is very important that we get the right balance in national reporting of data. This Government have already introduced a new mandatory requirement for all forces to collect data on child sexual abuse and child sexual exploitation offences as part of the police annual data requirement, and from next April we will be expanding that requirement to include non-crime incidents related to CSE as well. This means that for the first time, we will have all child sexual abuse and exploitation-related crimes and incidents recorded by the police. This will allow for all sexual offences against children to be identified; for example, it was previously not possible to identify obscene publication offences that are specifically related to victims aged under 18.

We are working closely with the police to monitor and review the use of the new sexual risk orders, as well as child abduction warning notices, in order to ensure they are effective in protecting children who are at risk of sexual harm. I think that is precisely the noble Baroness’s point. As child abduction warning notices are part of an administrative process, the police do not regularly record the number issued. This means that, in practice, this amendment would place a significant and disproportionate new burden on the police manually to interrogate their systems.

We agree on the need to do all we can to disrupt predatory behaviour before it causes lasting harm to children and young people. The Government remain unpersuaded that the approach proposed in these amendments is the right way forward. In order better to understand the issues raised and to create an evidence base for the use of existing powers—that is the important thing here—we have set up a working group that will monitor the use of sexual risk orders so that we can fully evaluate whether there are gaps in police powers to disrupt at the earliest opportunity. I expect this group to report to Ministers in the autumn of next year, and we will consider its findings very carefully.

I hope the noble Lord will feel content to withdraw the amendment.

--- Later in debate ---

[Baroness Hamwee]

My Lords, we on these Benches support our noble friend Lady Brinton. I do not want to detain the Committee so will make just a couple of comments. When discussing matters such as trafficking and slavery, I often hear that these issues are where domestic violence was 20 years ago. It is very concerning to hear about the treatment of women—and men—who have suffered domestic violence in the way that my noble friend has described. That is not progress over the past 20 years.

There is another argument for my noble friend’s various amendments, which I do not think she mentioned; that is, obtaining the best evidence from victims who are also witnesses. These are very sensitive issues and one hears of very good practice by some police forces and some members of the judiciary. It is a question of spreading that good practice. There is an awful lot raised in these amendments, including the very delicate issue of ticketing for the judiciary dealing with certain cases. This is not the moment to go into that but the implications of the amendments need to be taken on board over a very wide area of practice. The Committee should be grateful to my noble friend and the noble Lord for ensuring that they are raised. It is a pity that, coming to the end of Committee, we are not able to do them the justice that we would all like to do them.

[Baroness Chisholm of Owlpen]

My Lords, I thank the noble Baroness, Lady Brinton, and other noble Lords who have spoken, for raising the important issue of victims’ rights.

It is crucial that the needs of victims of crime are given proper consideration at every stage of the criminal justice process. We published a revised Code of Practice for Victims of Crime, which came into force in November 2015. As a result, victims of all criminal offences, not just victims of more serious offences, are entitled to support under the code. The code provides victims with a range of entitlements, including information about their case, interpretation and translation, and for them to be treated in a respectful and professional manner without discrimination of any kind. Furthermore, the code requires police and other service providers to have a complaints procedure. If victims are dissatisfied with the outcome, they are able to refer their complaints to the Parliamentary and Health Service Ombudsman via their Member of Parliament.

It is essential that victims receive the best possible support to help them cope with and recover from what they have been through. We have a raft of arrangements in place which ensure that victims have access to a wide range of emotional, practical and specialist support determined by and tailored to their needs; wherever possible, this support is accessible locally. We are committed to ensuring that victims get the support they need and have protected the overall level of funding for victims across the spending review period, with over £95 million being provided in 2016-17 to fund crucial support services, including £7 million for the provision of support for victims of child sexual abuse, in recognition of increasing demand. Of the £95 million, we allocated over £67 million in grant funding to police and crime commissioners, who are using that funding to commission local services. The Justice Secretary has recently agreed to extend grant funding to all the nationally funded organisations for 2017-18 while we consider the current mixed model of commissioning national and local services.

We recognise the importance of training for professionals who work with victims. Organisations are responsible for ensuring the highest-quality training for their staff to ensure that victims receive the best possible service and support. However, we also recognise that more can be done. That is why we are working to place victims and witnesses at the heart of a justice system that works for everyone. We recently announced the national rollout of pre-trial cross-examination in 2017 to improve the support available for vulnerable witnesses. We are also investing close to £1 billion to reform and digitise our courts and tribunals. This will improve the experience for all court and tribunal users, including vulnerable victims and witnesses. Furthermore, we have committed to introduce further measures to strengthen the rights of victims of crime. It is important that we take the time to get this right, and we will announce our plans in due course.

Finally, the proposal for homicide reviews is also unnecessary. If the family of a victim has concerns about a closed homicide case, this can be looked at again under the Crown Prosecution Service’s recent guidance, Reviewing Previously Finalised Cases, to determine whether or not a review should be conducted.

Having had this opportunity to debate these important issues, and in the knowledge that the Government will be bringing forward proposals to strengthen the rights of victims, I ask the noble Baroness to withdraw her amendment.

Policing and Crime Bill

Baroness Hamwee Excerpts

Committee: 4th sitting (Hansard - part one): House of Lords
Wednesday 9th November 2016 Lords Chamber

[Lord Kennedy of Southwark (Lab)]

My Lords, Clause 114 concerns defectively deactivated weapons. As we have heard, we have some of the toughest firearms laws in the world, and I am very pleased about that.

In this grouping the noble Earl, Lord Attlee, has given notice of his intention to oppose Clause 114 standing part of the Bill, although he did not speak to that. However, I do not agree with his opposition to the clause. I think that we would want deactivated weapons to be sold or gifted to people only when they met the highest standards available. If people want to sell these weapons within the EU, they should be certified to the appropriate standard. That is the answer to the problem—not to delete the whole clause.

However, the noble Earl’s amendments raise important points that need to be considered carefully and responded to by the Government. My general position on firearms is that our legislation has had a positive effect and we should always keep matters under review, with a view to seeing where updates or amendments can be made, so that we never relax our tough approach. Having said that, I see the point the noble Earl is making—if you inherit a weapon, potentially an offence can be committed. We need to look at that, although I am not sure that we should do as he suggests.

The noble Earl also made the important point about transferrals to a body corporate, which can be used as a way of getting round legislation. I am not sure what effect the last amendment in the group would have, but he has raised some very important points and I look forward to hearing what the Minister says.

[Baroness Hamwee (LD)]

My Lords, when the Minister introduces Amendment 203K, which is about extending the period for considering an application for the renewal of a certificate, can she say whether this is being proposed because there are problems generally or in particular forces? In other words, are there just a few difficulties or is this a widespread issue, in that the police do not find eight weeks sufficient? I raise this because of the concern that 16 weeks might easily become the norm, given the opportunity to extend.

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, I am grateful to my noble friend for outlining his amendments. As he suggests, I will first explain the government amendments in this group.

Amendments 203J and 203K respond to amendments tabled by Geoffrey Clifton-Brown at Commons Report stage. They seek to make two improvements in the operation of the licensing arrangements under the Firearms Act of 1968. Amendment 203J would remove some of the unnecessary administrative requirements that currently apply to the possession of expanding ammunition.

Expanding ammunition is designed to expand predictably on impact and was prohibited initially in relation to pistols in 1992. In 1997 the ban was extended to all such ammunition, even though it is in universal use for pest control and is required for deer-stalking under the Deer Act and Deer (Scotland) Act.

The current legislation does allow for expanding ammunition to be possessed, in order to carry out specific activities such as the lawful shooting of deer, estate management, the humane killing of animals or the shooting of animals for the protection of other animals or humans. However, the legislation also requires that the individual possess a suitably conditioned firearm certificate for these activities.

The amendment would allow for the possession, purchase, acquisition, sale or transfer of expanding ammunition for rifles where the individual is in possession of a valid firearm certificate or a visitors firearm permit. The effect is—and I hope this goes some way toward answering the noble Baroness’s question—that the police will no longer have to include additional conditions on a certificate or permit, thereby removing some of the administrative burden that the current regime places on them.

Amendment 203K is intended to address the issues that currently arise with an application for the renewal of a firearms certificate that has been made prior to the expiry of the certificate but has not been determined by the police in time. Police forces have developed two different approaches in these cases. The first is to allow the applicant to remain in possession of the firearm, shotgun or ammunition, which means the applicant is in breach of Section 1 or Section 2 of the 1968 Act until the application has been processed. The second is to issue a temporary permit using the power in Section 7 of the Act.

I am sure noble Lords will agree that it is not appropriate for certificate holders to be at risk of arrest and prosecution for an offence under Section 1 or Section 2 because the police have failed to process applications in time. Equally, it is not appropriate for the police to issue temporary permits to individuals whose substantive applications may subsequently be refused. The issuing of such permits also places an increased administrative burden on the police.

Amendment 203K will bring greater clarity in such circumstances by automatically extending the validity of firearm and shotgun certificates past their expiry date for a limited period of up to eight weeks. This will apply only where an application for renewal has been received by the police at least eight weeks prior to the date of expiry of the certificate.

The noble Baroness, Lady Hamwee, asked whether the problems were widespread or localised to particular forces. There were different levels of performance across different forces, and performance varies across some forces, meaning that some are better that others—so this is force-led.

Amendments 234A and 234B are consequential amendments to the extent clause.

I trust the Committee will agree that the two new clauses make sensible changes to the firearms regime and in doing so reduce the administrative burdens on the police without compromising public safety.

As my noble friend explained, his amendments relate to Clause 114, which strengthens the controls on deactivated firearms and thereby enhances public protection. I was pleased to meet my noble friend to discuss his concerns about this clause and I know that he has had a useful follow-up meeting, as he explained, with officials and one of the proof houses.

My noble friend has pointed to some of the difficulties that have been identified with the EU deactivation standards. The UK has some of the toughest gun laws in the world and some of the most robust deactivation standards in Europe. The need for consistent, robust deactivation across member states has been the driving force for EU implementing regulation.

While the new EU deactivation specifications have been introduced, we have recognised that we need to strengthen deactivation measures for certain firearms. We now require additional measures that will align the EU standards with the exacting standards for deactivated weapons already in place in the UK. We have agreed this position with the European Commission. Moreover, the Commission has set up a small group of technical experts to help interpret and, if necessary, revise the standards, and the UK is represented on this group.

Some noble Lords may argue that, following the referendum result, we should drop this provision from the Bill. However, on leaving the EU we will still want to ensure that individuals comply with the relevant deactivation standards that we have in place. To that end, I am ready to explore future-proofing the definition of a defectively deactivated weapon as used in the clause.

I hope I have been able to reassure my noble friend that the offence in Clause 114 is necessary to strengthen our firearms controls, and that, having aired this important issue, he will be content to withdraw his amendment and support Clause 114 standing part of the Bill—and the Government’s amendments in this group.

--- Later in debate ---

[Baroness Chisholm of Owlpen]

My Lords, Amendment 209 provides for a new offence of possession of pyrotechnic articles at live musical events in England. The amendment is in response to one tabled by Nigel Adams on Report in the House of Commons. The misuse of fireworks, flares and smoke bombs at festivals and other live musical events by members of the public is an increasing and deeply concerning problem. Fireworks and other pyrotechnic articles covered by the amendment are dangerous when misused. Fireworks can burn at in excess of 2,200 degrees centigrade; flares can reach temperatures of 1,600 degrees centigrade and can burn for as long as an hour. Smoke bombs also burn at high temperatures, and in enclosed or crowded spaces the thick smoke that they release can cause breathing difficulties, particularly for asthma sufferers.

In the 1980s, it was recognised that the misuse of pyrotechnic articles in crowded football stadia posed a specific public order risk. As a result, the Sporting Events (Control of Alcohol etc.) Act 1985 provides for an offence of possession of fireworks and flares at a football match. However, current firework and explosives legislation does not provide the police or prosecutors with an appropriate offence to tackle the possession of pyrotechnic articles at music festivals. While the majority of festival organisers have their own rules banning festivalgoers from bringing fireworks and other pyrotechnic articles on to festival premises, no statutory regulation exists. There is no offence for the use of a firework, flare or smoke bomb in a crowd on private property unless it can be proved that it was used with the intent to cause injury or that its use was likely to endanger life or seriously damage property.

Amendment 209 therefore makes it an offence for a person to be in possession of a pyrotechnic article at a qualifying musical event in England. The offence has been so constructed as to apply also where a person is in possession of such articles at a point of entry into, or exit from, the place where a qualifying musical event is taking place, or at a campsite provided for those who are attending the event.

A qualifying musical event will be defined in regulations, subject to the negative procedure. The amendment itself provides that such musical events must involve live musical performances and, in defining a qualifying event, we will want to further target the offence at those events where there is evidence of harm being caused by the misuse of fireworks, flares or smoke bombs. The maximum penalty for the offence is three months’ imprisonment, which is the same as that applicable to the existing football-related offence.

The effect of Amendment 234 is that the offence extends to England and Wales. As I indicated, it applies to England only. However, we are considering further its territorial application in consultation with the Welsh Government. Amendment 245 makes a consequential amendment to the Long Title.

This offence will help prevent the harm that can come from the misuse of such dangerous articles and allow everyone to enjoy live music events safely. I beg to move.

[Baroness Hamwee]

My Lords, I am grateful to officials for explaining the origin of the amendment to me. They commented that the Government’s view is that we should not extend the criminal law unless there is a well-founded case for doing so. I agree with that, but I have instinctive concerns about this proposal. First, what consultation has there been with the entertainment industry? This must be a matter of widespread interest. I cannot say that I go to musical events usually held in the open air—I go to rather staider events—but a lot of people will feel that they are being targeted by the measure. What consideration has been given to, first, whether there should not be a focus on the venue organiser rather than the individual, as this seems to be a matter of crowd control? Secondly, and perhaps more importantly, is there no other way than creating a new specific offence? If fireworks and flares are dangerous—I accept that they are—is this not about the misuse of fireworks rather than the place or event where they may be misused? As for it being a musical event, which is to be determined by regulations, that seems to raise all sorts of problems.

I appreciate that this comes from legislation about football matches, although the 1985 Act cited by the Minister seems a little narrower, unless I have misunderstood it, because the places where the person is found to be in possession are very closely defined, including an area,

“from which the event may be directly viewed”.

When looking up that section, I came across a petition to Parliament to legalise the use of pyrotechnics at football grounds. I could not find its date, but it was rejected on the basis that it was,

“a matter for individual Local Authorities”.

That confused me even more, but I wonder what relation that point has to the amendment.

I am sorry to throw a number of questions at the Minister, but I am sure that the Government considered them before proposing the amendment.

[Lord Harris of Haringey]

My Lords, I am not sure whether the thrust of the comments of the noble Baroness, Lady Hamwee, was to broaden or narrow the scope—

[Baroness Hamwee]

It was to inquire.

--- Later in debate ---

[Baroness Hamwee]

I did not express myself very well. I was not concerned about travel to the event. I was comparing the amendment with Section 2A of the Sporting Events (Control of Alcohol etc.) Act 1985, under which the offence applies when a person,

“is in any area of a designated sports ground from which the event may be directly viewed”.

I was comparing the two matters. That probably highlights the fact that musical events are different.

After hearing the response, I cannot help thinking that this is a matter of how people may use or misuse fireworks and flares in a much more general way. Does the noble Baroness know whether the regulations will address the definition of a qualifying musical event, or will they actually list particular events? She referred to the national policing lead for musical events; I had not realised there was such a post. By definition, that officer will not have given comments about events that are not musical events. If the noble Baroness has no further information—I appreciate that she may not, as we are becoming quite detailed—perhaps it is a matter for another day. But they are not invalid questions.

[Baroness Chisholm of Owlpen]

I might have inspiration from over my left shoulder. The offence will apply to a campsite adjacent to a festival and the regulation-making power will include a generic definition of a live musical event.

Policing and Crime Bill

Baroness Hamwee Excerpts

Committee: 3rd sitting (Hansard - part one): House of Lords
Wednesday 2nd November 2016 Lords Chamber

Moved by

[Baroness Hamwee]

188A: Clause 73, page 96, line 14, after “understanding” insert “or dealing with”

--- Later in debate ---

[Baroness Hamwee (LD)]

My Lords, I hope that this amendment can be dealt with very quickly. It takes us to the provisions for live links with people in detention and, in particular, the definition of a “vulnerable adult”. When I read the definition, I was unsure whether the phrase,

“may have difficulty understanding the purpose of an authorisation”,

extended to understanding its implications or outcome. It seemed to me that the word “understanding” was rather narrow.

I was asked yesterday by the Bill team whether I could explain what I was getting at. Once I had a look at the drafting, I realised that I had put the words in the wrong place, and I apologise to the Committee for that. However, I was assured that the wording in the Bill extends to understanding the implications or outcome of a decision, and I am moving the amendment simply in the hope that the Minister can confirm that from the Dispatch Box. I beg to move.

[Baroness Williams of Trafford]

I thank the noble Baroness for her comments. Amendment 188A would amend Clause 73 to alter the definition of a “vulnerable adult” in new Section 45ZA of the Police and Criminal Evidence Act 1984. That new section would enable a superintendent to authorise the extension of pre-charge detention using a live link, rather than being physically present in the police station. In the case of a vulnerable adult, consent to the use of a live link must be given in the presence of an appropriate adult, and the amendment seeks to alter the definition of a vulnerable adult for those purposes.

I understand that the noble Baroness is seeking an assurance that the definition provided for in the Bill would include a person who had difficulty understanding the implications or outcome of a decision by a superintendent to authorise the extension of pre-charge detention from 24 to 36 hours. I am happy to provide such an assurance and, on that basis, I hope that she will be happy to withdraw her amendment.

[Baroness Hamwee]

Indeed, my Lords. I beg leave to withdraw the amendment.

Amendment 188A withdrawn.

--- Later in debate ---

[Baroness Hamwee]

My Lords, my name is on the amendments in this group. My noble friend mentioned the importance of ensuring parity between physical and mental health services, and we will continue to raise that until parity is achieved. She also mentioned stereotyped assumptions as to links between mental health and criminal offending and racial stigma in mental health matters.

It occurs to me that the arrangements for using police stations as a “place of safety”—like others, I put that term in quotation marks—must be very difficult for police officers. They are not health professionals who can deal with physical health problems or mental health problems. We should not expect them to respond to a situation for which, however well intentioned, they are not qualified.

My noble friend also mentioned the question of funding. Inevitably, the reliance on increasingly stretched local authorities is an issue. Given that a place of safety includes residential accommodation provided by local social services, we need to recognise the importance of local authorities’ funding for new places of safety. The Government’s investment in that is a positive step. As with so many issues, this is not something that can be put in one pigeonhole and left there.

[Lord Bradley (Lab)]

My Lords, this group of amendments addresses the crucial relationship between mental health and the criminal justice system. I make it clear at the outset that I support the objective of banning the use of police cells as a place of safety for adults. My comments are in the context of my own independent report published in 2009, which reviewed people with mental health problems and learning disabilities in the criminal justice system.

In the report I made over 80 recommendations for change, at least two of which are relevant to this debate. First, I recommended the establishment of multidisciplinary liaison and diversion teams composed of people with a variety of skills, including psychiatric nurses, learning disability nurses, drug and alcohol workers and many others, all working alongside the police in police stations to identify and assess vulnerable people and to support the custody staff at the first point of contact with the criminal justice system. This programme is being rolled out nationally. Currently, 55% of the country is covered. Additional money from the Treasury was allocated in July of this year to enable 75% of the country to be covered by 2018-19, with a view to 100% coverage by 2020-21.

Alongside this, and now properly integrated with liaison and diversion teams, is street triage. That is where the police and NHS staff work together in their local communities. It works best where there is a dedicated vehicle and they sit together, often with their separate laptops—we hope to link technology at some point—so that they can immediately assess the needs of vulnerable persons and stop them hitting against the criminal justice system. These are often the people who may be sectioned under Section 136 of the Mental Health Act, and this is where the second recommendation in my report is relevant today. I said then that, “All partner organisations”—by which I meant principally the police and the NHS,

“involved in the use of Section 136 of the Mental Health Act 2007 should work together to develop an agreed protocol on its use. Discussions should immediately commence to identify suitable local mental health facilities as the place of safety, ensuring that the police station is no longer used for this purpose”.

The recommendation was accepted by the then Labour Government and each subsequent Government—we are on to the fourth now—have committed to this objective.

--- Later in debate ---

[Baroness Walmsley]

My Lords, the amendment would ensure that people are really only detained under the Mental Health Act for up to 24 hours. To achieve that, the clock needs to start when the decision is made to detain someone and not when they arrive at the place of safety. If the Government want people to be detained only for up to 24 hours, Amendment 192 is needed. This is the only way to ensure that we are not detaining people for longer than 24 hours during what is often a distressing and alienating experience for people in crisis. They may be detained on the street in one of the special vehicles that have been mentioned or in another public place. They may be kept in a police car until a suitable destination is found. Wherever it is, distress will ensue for the person concerned.

We need to look at the position in parallel with that of a person with a physical illness who calls an ambulance. When ambulance services are assessed, the clock starts ticking from the moment the ambulance is called and not from the moment the patient is picked up. This is a matter of parity between physical and mental health.

When discussing these parts of the Bill, it is crucial that we remember that people detained under the Mental Health Act have not committed any crime. They are unwell and require health support. That is why I beg to move.

[Baroness Hamwee]

My Lords, I support the amendment. From the point of view of the person detained the detention starts at the point described by my noble friend Lady Walmsley. It is not a question of that being some sort of limbo; that must be how it feels. If a person is on the way to a place of safety, they are being detained, held and controlled as much as they would be when they reached their destination.

[Viscount Hailsham]

My Lords, I have great sympathy with the points just made. The clock should start ticking when a person is taken into custody and not when he or she arrives at the place of safety.

--- Later in debate ---

[Baroness Hamwee]

My Lords, I am a member of the Joint Committee on Human Rights and my name is on the amendment. I will make two points. First, the Government’s argument is that using the term “appropriate adult” causes some sort of stigma. I cannot speak for the committee or my noble friend whose amendment it is, but you can call that person what you like—it is the job that needs to be done, and that is what the amendment is driving at. Secondly, I wish to draw attention to the provision of subsection (1) of the proposed new clause, which is,

“the right to have access”.

Rights should be in legislation.

[Baroness Walmsley]

I agree with my noble friend on that point and on all the points she made. I thank the Minister for her comments, which I will of course consider between now and Report. I do not agree with her that the person formally doing the mental health assessment can be regarded as the appropriate adult, for the reason that I gave in my opening remarks; that is, that person is in control of what happens next to the person being assessed. It is important that the person has a right—they may not choose to use it—to consult somebody else about whether that is the right thing for them and how they feel about it.

Of course, the Minister is right that the number of people detained in police stations in these circumstances is going down very rapidly. If my Amendment 189 was accepted, it would become zero very quickly. In those few cases—many fewer now—where a person is in that situation, I still think that they should have a right to choose if they feel the need to have somebody else there to advise them. However, this is Committee so I will withdraw the amendment.

Policing and Crime Bill

Baroness Hamwee Excerpts

Committee: 3rd sitting (Hansard - part two): House of Lords
Wednesday 2nd November 2016 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, my noble friend and I have four amendments in the group. With regard to Amendment 196A, the Minister will not be surprised that we always support consultation—well, almost always. I wondered whether “persons” in the amendment, which would follow on from persons who are “law enforcement officers” as provided for in the clause, means human persons and corporate and other bodies, as I would expect. I was a bit surprised during the passage of—I think—the Investigatory Powers Bill that there had to be a definition of “person” at one point. I assume that the sweeping-up provision in Clause 82(3)(g) is to allow for, for instance, the organisation that came to my mind, the Maritime and Coastguard Agency. Even if that is not intended, perhaps I can ask about it and whether it should have powers. Is that in the Government’s mind?

Our four amendments are to Clause 92. Clause 92(1) provides for the Secretary of State to issue a code of practice for law enforcement officers arresting a person under the powers given by the Bill. Clause 92(2) provides that the code must provide guidance as to the information to be given to the person being arrested. We think the code should be wider than this.

Perhaps the most important amendment is the one that would add criteria to be considered by the law enforcement officers before they arrive at a decision to proceed with an arrest. Clearly, this is not something that would be done lightly, but there must be some scope, whether in this code of practice or elsewhere, as to when these very considerable powers should be thought appropriate to exercise. The amendment to Clause 92(1) is similar, in that it would require officers to think before doing, if I can put it that way, as well as thinking when doing.

Our third amendment would provide in Clause 92(8) that regulations requiring an affirmative resolution should apply in the case of a revision of the code, not just the initial code. We would also remove Clause 92(9). Those two amendments would go together and make the same point. We think that this is a sufficiently serious matter that affirmative resolutions would be appropriate.

[Lord Harris of Haringey (Lab)]

My Lords, I rise notionally to support my noble friend Lord Rosser and his amendment, but first I record that I have recently completed for the Mayor of London a review of London’s preparedness to withstand a major terrorist incident. As part of that review I looked at the policing of the River Thames. I became aware of a lacuna—or at least what I understood to be a lacuna—that appeared to exist in the legislation, which these clauses fill and deal with by making it possible for police to stop and search boats on the River Thames. I was therefore delighted to see it. My recommendations on that were couched in those terms.

However, it appears that it is possible for anyone to sail up the River Thames without having any licence or even permit, which seems an extraordinary gap. While we were tidying up some of these matters, I would have thought it useful to tidy up precisely that one. Given that one is expected to have a licence to drive a car, with the car being required to be of a certain standard, it is surprising that there is no such requirement for sending a boat up the Thames.

I come to the specific question that I wanted to ask the Minister—she can answer the first one if she wishes. An hour and three-quarters ago, I received an email from Nigel—I suppose that I am taking a leaf out of the book of my right honourable friend the leader of the Opposition here. Nigel said:

“I’m an old retired police officer”—

so he must have been there with Brian—

“and I may be out of date but back in 1967 when I joined The Met, one bit of legislation they kept drumming into us was Sec 66 of The Metropolitan Police Act and it read police may stop, search and detain any vehicle, vessel, boat, cart or carriage in or upon which anything stolen or unlawfully may be found”.

At what point in the various reorganisations of London government and policing legislation was Section 66 of the Metropolitan Police Act repealed or changed? It may still be there, in which case what does this provision add to it? The Minister may not have that information immediately available in her brief, so I would be quite happy to receive a note at a later stage.

--- Later in debate ---

[Earl Attlee]

I thank the Minister for that reply but she seems to be struggling on the point of why a police force can say that it will not take an email. I think that Ministers need to be rather careful about teasing noble Lords when they declare an interest; it is vital that we can declare an interest in an issue without being teased by Ministers. This is the second time on this Bill that I have been teased by Ministers regarding declaring an interest.

I want to make it clear to the Committee that I tried to avoid even tabling this amendment, because I knew that it would involve a lot of work within both the Department for Transport and the Home Office. Unfortunately, I could not encourage the Government to deal with this matter offline. That is why I had to table an amendment and speak to it in your Lordships’ House.

The Minister said that the police force can determine what the form should be—how the notification is laid out and whether the width and the weight are described. It does not say in the STGO what the means should be, only the form—what it looks like when it comes out of the fax machine or in the email—but not the means. I am not convinced that the system is watertight.

[Baroness Hamwee]

My Lords, I cannot say that I have followed every detail of this, but the noble Earl seems to be complaining that the Minister is not the recipient. He is putting the burden on the shoulders of the Minister, but she has explained that it is a matter for the recipient as to what form will be acceptable. Is the question not whether the Minister will accept that it should be email but that the regulations should be reconsidered as to whether they say something different?

Immigration: Detention of Pregnant Women

Baroness Hamwee Excerpts

Thursday 27th October 2016 Grand Committee

[Baroness Hamwee (LD)]

My Lords, I, too, thank the noble Baroness for raising the subject and the House of Lords Library for its briefings, which are wonderful. I hope I do not lose this one because it has so many helpful references in it. Like the noble Lord and the noble Baroness, Lady Lister, I, too, was a member of the All-Party Inquiry into Immigration Detention. Before I start my rant, I want to say that I am sorry that the layout of this room somehow seems to support an adversarial process when actually I suspect that everyone here would rather be sitting round in a circle, trying to find a solution.

One of the frustrations of the job that we all do—this must apply to Ministers most of all—is having a continual, nagging anxiety that practice differs from the theory that we discuss in such detail, and that the formal position is a world away from lived experience. It sometimes seems that a Minister’s briefing is a different reality and that we are working in parallel universes. Statistical information would help with this. It would not be the complete answer. There would always be comments that the criteria were poorly chosen and that such and such should have been measured, but statistics are a necessary component for judging practice and, of course, they are necessary for an open society. Statistical information may sometimes dispel myths; it may confirm one’s suspicions or even prejudices, but it always should tell us—this is a point that the noble Baroness made—what sort of society we are living in, as well as the one we hope to live in.

How pregnant women are dealt with for the purposes of immigration detention is not the only example of a concession given by the Government to get a piece of legislation through. Many of us, led valiantly by the noble Baroness, Lady Lister, wanted to see better protection than Section 60 of the Immigration Act, but the Government convinced parliamentarians of the validity of the provision. It is now a matter of good faith for the Home Office to demonstrate how Section 60 is operating. I am conscious of other matters that will be coming across the Minister’s desk—indeed, one of them has just been mentioned. Some noble Lords may have heard the programme on Radio 4 a couple of nights ago about the protection of overseas domestic workers, in which the Independent Anti-slavery Commissioner, Kevin Hyland, and James Ewins, who reported to the Government with recommendations, both expressed the view that that protection is not working as it should.

The guidance on adults at risk in immigration detention, on which the Minister recently answered Written Questions from me, to which the noble Lord referred, distinguishes between torture by the state and by non-state actors. I recognise that this is not the subject of this short debate but it illustrates a failure to see matters from the point of view of the individual affected. In the case of torture victims, are the numbers so great that the system would be overwhelmed if those were treated as two categories? Is there some issue of comparative fairness? I am really quite puzzled by this. Will it be another frustration for the doctors from whom our inquiry heard about the operation of rule 35? There is no doubt they were very frustrated.

In the case of pregnant detainees, we understand that in 2014 the great majority were released to pursue their applications in the community. Again, what is the point in holding any of them? I am not sure that the more humane and effective approach taken in Sweden, which supports immigrants whose applications are unsuccessful and which we were told we were edging slowly towards, is actually happening to any extent at all. This leaves us with the same old question: what purpose does it serve to lock up pregnant women, not as a punishment but in administrative detention?

We may be told that these are nuanced issues, and that is inherent in Section 60 with its reference to “exceptional circumstances”—although of course Stephen Shaw said that it was a statement of the obvious that,

“detention has an incontrovertibly deleterious effect on the health of pregnant women and their unborn children”.

For the purposes of this debate, and given the wording of Section 60, I accept that. One has to wonder, without the information, how the Home Office can know whether its policy is working and whether it is even meeting its own objectives. If the Home Office does not know, how can the rest of us?

Of course, the collection of statistics is not the same as publication and in May the Minister then dealing with the matter told the House:

“The Government are considering how best to collate the information and whether it will be necessary to actually publish it”.—[Official Report, 25/5/16; col. 388.]

It is necessary. The Home Office itself says so. The guidance includes, in paragraph 6, one of the principles underpinning the guidance:

“There will be a clearer understanding of how the government defines, ‘at risk’ and how those considerations are weighed against legitimate immigration control factors to ensure greater transparency about who is detained and why”.

I think that that makes the case.

Policing and Crime Bill

Baroness Hamwee Excerpts

Committee: 2nd sitting (Hansard - part one): House of Lords
Wednesday 26th October 2016 Lords Chamber

Moved by

[Baroness Hamwee]

146: Clause 29, page 48, line 38, leave out “or is similar”

[Baroness Hamwee (LD)]

We also have Amendment 148 in this group and the Government have Amendment 147. These are not such big issues but are the sort of thing that we try to cover in Committee. Clause 29 addresses the police barred list and the police advisory list. Clause 29(6) states:

“The Secretary of State may by regulations … make provision that … corresponds or is similar to that made by Part 4A of the Police Act 1996”.

We are not at this point querying the Police Act or Part 4A of it, but rather the words “similar to”. I understand the need to make regulations which will correspond with something. That seems to follow naturally, although sometimes the Delegated Powers and Regulatory Reform Committee may comment on that. However, the power to make similar regulations seems potentially a wide provision and I am not sure what it means. I hope that the Minister will explain that in responding to Amendment 146, which is a probing amendment.

Government Amendment 147 seems one of the least contentious bits of today’s business. As regards Amendment 148, Schedule 8 contains a provision about the effect of including someone in the police barred list. Certain people are required to check the barred status of potential employees or appointees. The persons are listed as being,

“a chief officer of police; a local policing body; the chief inspector of constabulary; the Independent Police Complaints Commission”,

but also,

“a person specified in regulations”.

Again, there is rather wide scope in that latter provision which could have wide implications. Our Amendment 148 would provide for an affirmative resolution to be passed before the regulations were introduced. One is so pleased by little victories. I am delighted that the Minister has added her name to Amendment 148, which we will be very happy to move in due course. I beg to move Amendment 146.

[Baroness Chisholm of Owlpen]

My Lords, as the noble Baroness, Lady Hamwee, explained, this group of amendments responds to two issues raised by the Delegated Powers and Regulatory Reform Committee in its report on the Bill in respect of provisions in Clause 29 and Schedule 8, which provide for the creation of a new police barred list and a police advisory list to be held by the College of Policing.

The first issue raised by the Delegated Powers Committee related to the regulation-making power in Clause 29(6), which enables provision to be made which corresponds or is similar to that made by new Part 4A of the Police Act 1996 and which relates to a person who is or has been employed or appointed by a quasi-policing body. As the committee pointed out, certain aspects of the operation of the police barred and advisory lists will be determined by regulations made under new Part 4A of the 1996 Act and it will most likely be necessary, when exercising the power in Clause 29(6), also to make provision corresponding or similar to that contained in such regulations.

I am grateful to the Delegated Powers Committee for highlighting this gap in the regulation-making power in Clause 29(6), which Amendment 147 will address. The amendment will enable regulations made under Clause 29(6) to make provision that corresponds or is similar to that made by or under new Part 4A of the 1996 Act.

--- Later in debate ---

I trust that the noble Baroness, Lady Hamwee, is satisfied that Amendments 147 and 148 fully address the two issues raised by the Delegated Powers Committee in relation to the police barred and advisory lists and that she will be content to support these in lieu of Amendment 146.

[Baroness Hamwee]

My Lords, I am indeed happy. The insertion of the words in Amendment 147 give the clause a completely different meaning. I beg leave to withdraw Amendment 146.

Amendment 146 withdrawn.

--- Later in debate ---

The Bill as currently drafted appears to represent a significant move away from the current position in which all of the governing board of the IPCC and the senior public-facing decision-makers can by statute never have worked for the police. To restrict the statutory bar to only the head of the organisation carries risks, both in what it signals about the new organisation as well as to the impact on public confidence in it. The new organisation will almost certainly have a regional dimension, as the IPCC has always done. The amendment seeks to provide that those likely to be representing the work of the renamed organisation in the regions or nations—regional directors and a director for Wales—should be subject to the same bar as the director-general on having previously worked for the police, in line with the current practice in the IPCC for those who are the public face of the organisation and its senior decision-makers. I beg to move.

[Baroness Hamwee (LD)]

My Lords, the underlying thinking here ties in quite closely with the debate on the previous group, and I am not sure that anyone said then that losing the word “Independent” from the title was particularly significant because of the very fact that it will be a change—more significant than if one was creating a new organisation and not having the word in its title from the start. That thought is part of the reason for our Amendment 158A in this group, which in fact the noble Lord, Lord Rosser, has explained to the Committee. It would also mark a change so that all the members of the body, if I can use a neutral term, could not be appointed from those who are—summarising around a third of a page—cops or ex-cops. That change would be a significant one, and again it is about the perception of independence as well as actual independence. We may hear that there are some practical reasons, or reasons of experience, that has caused the Government to move in this direction in their decisions on the structure and this part of the body’s governance, but I do not think that it is a good direction to go in.

As regards Amendments 157 and 158, in our view it would be wise to have a geographic spread, but if there is going to be a truly independent “Office”, it should be allowed to sort out its own arrangements, although anyone with any sense in the organisation would want to be sure that the regions of England, as well as the nation of Wales, are heard loudly and clearly.

[Baroness Williams of Trafford]

My Lords, the Bill provides for the existing commission to be replaced by a single executive head, the director-general, and for corporate governance to be provided by a unitary board with a majority of non-executives. These reforms address the recognised weaknesses of the existing commission model, under which most of the commissioners are engaged in operational activity and in the governance of the organisation. This has resulted in blurred lines of accountability. The commission itself recognises the need for change and there was clear support for the new director-general model in the response to the public consultation on the proposed reforms.

As the single executive head, the director-general will be accountable for the efficiency and effectiveness of the reformed organisation. That is why the legislation provides the director-general with the flexibility to determine the executive structure of the organisation, including the composition of his or her senior team. The director-general needs the freedom to shape the organisation in the way they see best to deliver high-quality, timely and independent investigations into police conduct, a point made by the noble Baroness, Lady Hamwee. Amendment 157 would tie the hands of the director-general as it would require the corporate structure of the Office for Police Conduct to include a minimum of four regional directors plus a national director for Wales.

The Government expect the Office for Police Conduct to have a regional presence, as the IPCC does, but as with the IPCC now and since its creation more than a decade ago, the Government do not see the need to legislate for a regional structure. A requirement for a specified minimum number of regional and national director posts would limit the director-general’s future flexibility to respond to the changing needs and circumstances of the organisation. In addition, this particular amendment would put regional directors on the board. That would undermine the core strengths of the new governance model and risk replicating the blurred lines of accountability within the existing commission structure.

I turn now to Amendments 158 and 158A, which relate to positions in the Office for Police Conduct that should not be open to those who have worked for the police. The Government recognise that public confidence in the independence of the organisation relies on certain key decision-making roles not being open to those with a police background. That is why there will be an absolute bar on the director-general from ever having worked for the police. We do not think that there should be statutory restrictions on those who are members of the office—in effect, the board of the reformed organisation. The core functions of the office are set out clearly in the Bill and include ensuring the good governance and financial management of the organisation. These functions are quite distinct from the functions of the director-general. The director-general, as the single executive head, will be solely accountable for all casework and investigation decisions, not the board. It is not right that a suitably qualified individual could not be appointed to a corporate governance role as a member of the board simply because he or she once worked as a police civilian, perhaps for just a short period many years previously.

With regard to employee roles, the Bill provides the director-general with an express power to designate functions and roles that are restricted, including senior operational and public-facing positions. The power means that the director-general will be able to ensure that the OPC has the right mix of staff, including those with valuable policing experience, while also having the power to place restrictions to help bolster public confidence in the OPC’s impartiality and independence. However, as I said, it is important that the director-general can secure public confidence in the work of the Office for Police Conduct. The Bill recognises the need for transparency in the director-general’s decision-making and places a requirement on the director-general to publish a statement of policy on the exercise of these particular powers of recruitment.

To conclude, we believe the provisions in the Bill strike the right balance by placing core aspects of the OPC’s governance in the legislation while ensuring that there is flexibility and transparency in appointments. On that note, I hope the noble Lords, Lord Rosser and Lord Paddick, and the noble Baroness, Lady Hamwee, are reassured of the Government’s intentions and that they will be content not to press their amendments.

--- Later in debate ---

[Baroness Williams of Trafford]

My Lords, I think what I outlined in my speech to noble Lords was that the director-general would need to outline how he proposes the board will work and his position in it. The Bill recognises the need for transparency, as the noble Lord pointed out. It places a requirement on the director-general to publish a statement of policy on the exercise of these particular powers of recruitment. I imagine that if he decided to have a board full of former police officers he would want to explain why, in his particular case, this was necessary.

[Baroness Hamwee]

Would the Minister accept that the bit the public will be aware of—like the change from an organisation with the term “independent” in its title—is the change from a board structure where there is a bar on all members of the board having been police officers or involved with the police service to a situation where there need not be, not the detail of the report of the director-general explaining the fine detail of their thinking? It is a much broader issue than the Government are acknowledging.

[Lord Rosser]

I thank noble Lords who have participated in the debate, and the Minister for her response setting out what the Government’s position is and the thinking behind the Government’s wording in the Bill. Issues have been highlighted in the debate about the potential implications and the extent to which one could end up in a situation where very few people indeed in the public face of the organisation and its senior decision-makers had not worked for the police, since the terms of the Bill do not preclude that happening. It precludes it only as far as the director-general is concerned.

Policing and Crime Bill

Baroness Hamwee Excerpts

Wednesday 14th September 2016 Lords Chamber

Moved by

[Baroness Hamwee]

1: Clause 2, page 2, line 24, after “the” insert “economy,”

[Baroness Hamwee (LD)]

My Lords, Amendment 1 is an amendment in the name of my noble friend Lord Paddick and myself, as are Amendments 2, 3 and 7 in this group. The clause provides for duties in relation to collaboration agreements between the emergency services which are the subject of this part of the Bill. Clause 2 refers in two places to the interests of the “efficiency or effectiveness” of the relevant service and of other services. My first two amendments would insert the term “economy”, which those of us of a certain generation from local government are accustomed to hearing alongside efficiency and effectiveness. My question is in two parts: first, is “economy” now considered to be covered by the terms “efficiency” and “effectiveness”—I can see an argument that it might be—and, secondly, why is there no reference to all three of these attributes? They are all referenced in Schedule 1 to the Bill, which comprises the new Schedule A1 to the Fire and Rescue Services Act 2004.

Amendment 3 provides for consultation. I have listed a rather unambitious group of people to enable me to ask whether consultation is provided for elsewhere. If it is not, it should be. Even leaving aside Sir Ken Knight’s recommendation of trialling such agreements before their wholesale application, collaboration must, in our view, be on a case-by-case basis, best fitting the needs of the local community, hence the reference to the local community in our amendment, as well as to the employees of the proposed parties to the collaboration agreement. It needs no expansion that the views of employees should be important in the decision-making. A formal public consultation is required, not least because of the risk of politicising the process. Transferring responsibilities to police and crime commissioners is a political decision in terms of the service, and perhaps of how it is dealt with in each area. I am not making any pejorative comments about whether particular police and crime commissioners act with politics at the forefront of their minds, so I hope the noble Lord, Lord Bach, will forgive this comment. We now have far more politically aligned police and crime commissioners than we did after the first set of elections, when many independents were elected. We also believe that organisations such as the NHS, the Environment Agency and other emergency responders should be involved.

Amendment 7 probes the strength of the consultation, and would require that the chief officer of police be satisfied that there is no operational problem in the arrangement—a point made by my noble friend Lord Paddick, who will join us soon, after rowing for Queen and country, or at least this House. When the office of police and crime commissioner was created, there was great emphasis on the commissioner not interfering in operational matters. It is a continuation of that thought.

Government Amendment 4 apparently innocently substitutes “or” for “and”. However, the amendment is quite significant. In the relevant wording, the term “its” is used. It is not entirely clear to me whether the “its” in subsection (4)(b) refers to the “proposed party” referred to in subsection (4)(a) or the “other proposed party” referred to in subsection (4)(b). I read it as the original party, but I suggest that that bit might stand some tweaking at the next stage to make it completely clear, so that the casual reader does not go down the wrong route. The more important point is that I would need a lot of convincing that a party should be frogmarched into a so-called agreement, which is the effect of this amendment. I beg to move.

[Lord Harris of Haringey (Lab)]

This is a surprisingly interesting group of amendments, although not obviously so at first sight. It immediately brings us to the question of the purpose of these clauses. Are the Government asserting that there is a failure to collaborate between emergency services around the country—and, if so, that this is the mechanism to fix it? I am not sure that evidence exists of a failure to collaborate; in my experience, the emergency services work extremely well together and go out of their way to do so. So what is the problem the Government are trying to fix? If the problem is to be fixed by a collaboration agreement as set out, we will need a bit more clarity, which I assume is the purpose of Amendment 3, in the names of the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee, on the proposed consultation. What process do the Government envisage will be followed? Presumably, a failure to collaborate will have been identified in a particular area. Who will have identified that, and what is the process? By implication, it looks as though an agreement to collaborate will be imposed not as an agreement, but because one side rather wants it to happen. There has to be more a lot more clarity.

Then, there is the attempt to correct the drafting error—“or” versus “and”. What is envisaged in that respect? For example, when would it be “efficient” but not “effective” to do this, and when it would be “effective” but not “efficient”? If you are making a big point of changing “and” to “or”, you are implying that there will be circumstances when it is a good thing to have one of these agreements because it is efficient, but actually it is not effective—so why are we doing something that will not be effective? Alternatively, you might be saying that it is a good thing to have a collaboration agreement because it is effective but, unfortunately, not very efficient. Again, I am not quite clear why it is in the interests of anybody to do that. What is the purpose of the Government’s amendment? Can the Minister explain to us in precisely what circumstances she envisages it would be possible to be efficient but not effective, or effective but not efficient?

--- Later in debate ---

[Baroness Williams of Trafford]

If two PCC areas came to the Government with a proposal for change, the Government would consider it, just as in devolution where the Government considered any proposals that came forward. For example, just thinking of home, if Manchester and Cheshire wanted to come together—I am not saying they do—they could put forward a proposal. I hope that I have answered all noble Lords’ questions and that the noble Baroness will be content to withdraw the amendment.

[Baroness Hamwee]

My Lords, I am grateful for the care that the noble Baroness took in the detail of her response. On my Amendment 7 and operational matters for the police, I am not sure whether she was saying that if a PCC disregards concerns expressed by a chief constable about operational matters—she several times used the phrase “have regard to” such concerns—that would be a breach of the 2011 Act. I am not clear on that. Maybe that is not a matter for answering now. I would be happy to hear from her after today if that is a better way of dealing with this.

I am not sure which of the noble Baronesses who lead their respective councils used the phrase further collaboration—I think it was the noble Baroness, Lady Redfern. But since this is about further collaboration, it raises the question: why? The LGA argued strongly, I think in response to the Government’s consultation paper, that the sector should be enabled to continue to effect change without the Government resorting to legislation. It said that a duty to collaborate was,

“likely to provide a constraint that stifles innovation and broader collaboration. In the LGA’s view, the provision of incentives like transformation funding is more likely to produce greater collaboration between the emergency services, and between them and other public services”.

It said that such incentives,

“would also encourage the ambulance service, which in some cases has been less ready to engage with collaborative programmes”.

Despite what we have heard, that question still hangs in the air.

There was also the comment about consultation on a voluntary basis. When people resist consulting, that is when they most need to be required to consult; I think that must be the experience. The examples used about where things have worked well from the bottom up, prompted by what has been identified locally as desirable, obviously bear careful reading. There are still questions hanging over this but for the moment, I beg leave to withdraw Amendment 1.

Amendment 1 withdrawn.

--- Later in debate ---

Despite wanting collaboration agreements to be placed on a statutory footing within the Bill, it does not appear that the Government want to go down that road as far as the concordat is concerned. If I am correct in thinking that, no doubt the Minister will explain why that is the Government’s position when she responds. I beg to move.

[Baroness Hamwee]

My Lords, I am reluctant to say anything that could be interpreted in any way as negative about the initiative of my right honourable friend the Member for North Norfolk with regard to the mental health crisis care concordat. It is a very important—I was going to say “document”, but it is far more than a document. I am sure that the noble Lord, Lord Rosser, will not disagree that we should be mainstreaming mental health care in everything and should not have to refer to it specifically. I dare say we will come back to the concordat when we deal with the detention of people who are mentally ill, which we will do later in the Bill.

My only hesitation—and perhaps I should have waited to hear from the Minister, but I am afraid I could not resist jumping in to claim credit for my party and its part in the creation of the concordat—is about whether it is appropriate to refer in legislation to something which I read as being a living arrangement, something that is developing, drawing more and more parties into it and finding more and more ways of achieving its essential objective. The issue is important. It may be a matter of how it is dealt with legislatively.

[Lord Adebowale (CB)]

I support the amendment moved by the noble Lord, Lord Rosser. I have some experience of the police and their responses to mental health as chair of the commission on the Met’s response to mental health policing in London which—I hesitate to claim credit—led to the concordat mentioned by the noble Baroness, Lady Hamwee and the noble Lord, Lord Rosser. It is important that mental health is included in reference to collaboration because those people are at the sharp end of the inverse care law when it is not. I am concerned and would like to know more about the Government’s intentions in this regard. I support the amendment.

--- Later in debate ---

Moved by

[Baroness Hamwee]

8: Clause 4, page 4, line 38, leave out “a subsequent collaboration agreement” and insert “the agreement of the parties”

[Baroness Hamwee]

My Lords, Amendments 8 and 9 are short amendments relating to Clause 4(8), which provides:

“A collaboration agreement may be varied by a subsequent collaboration agreement”.

I wonder why it is necessary to state that. Any agreement can be varied if the parties agree to vary it. Is it the statutory nature of a collaboration agreement that requires this provision? Our second amendment, also probing, is to ask whether the requirements that have to be met before an initial agreement can be proceeded with apply to a subsequent agreement. I assume so, but it would be useful to have that confirmed, and interesting to know if it is not confirmed. I beg to move.

--- Later in debate ---

[Baroness Chisholm of Owlpen]

I thank noble Lords for taking part in this debate. I understand from the noble Baroness, Lady Hamwee, that these are probing amendments designed to tease out how collaboration may be varied. It is of course vital that collaboration agreements can be amended where appropriate to reflect local developments and to ensure the best outcomes for the public they serve. There may be a number of reasons to vary a collaboration agreement, perhaps to include a new partner to the agreement or to change participant roles and responsibilities. Clause 4(8) is simply intended to make it clear that such variations may be made. In locally agreeing to vary the terms in an existing collaboration agreement, the parties will in effect create a new or subsequent collaboration agreement. Such an agreement would be subject to all the provisions that pertain to collaboration agreements. I hope that clarification reassures the noble Baroness and that, accordingly, she will be content to withdraw her amendment.

[Baroness Hamwee]

I think it may have become not a probing amendment.

[Lord Hope of Craighead]

With great respect to the Minister, she did not address my point. One has a choice: either one varies an agreement or one replaces it with something else. The example given is a very good one of a variation, leaving the existing agreement in place. We are at a very early stage of this Bill and all I am suggesting is that the amendment might be taken away and looked at again. It is a question of the proper use of the English language, which is why I have taken the liberty of standing up and making my point.

[Baroness Chisholm of Owlpen]

Certainly. I feel I must bow before the noble and learned Lord’s incredible intelligence in these affairs. I cannot possibly completely disagree with what he says because he is way above my intellect. Of course we can go away and look at this.

[Baroness Hamwee]

My Lords, that is very helpful. The noble and learned Lord makes the argument far better than I did. I will attempt to rope him in on future amendments. As I said, it became not a probing amendment in the course of that exchange. I want to make it clear that we are not at all arguing against the variation of collaboration agreements—that would be intellectually incoherent. That is not the purpose of this. For the moment, at any rate, I beg leave to withdraw the amendment.

Amendment 8 withdrawn.

--- Later in debate ---

Moved by

[Baroness Hamwee]

10: Schedule 1, page 174, line 8, at end insert “, and
(b) if the duties and restrictions provided for by sections 2 and 3 of the Policing and Crime Act 2016 have been complied with.”

[Baroness Hamwee]

My Lords, my noble friend Lord Paddick and I tabled Amendments 10, 11 and 99 in this group and we support the other amendments in the group as well. I resisted joining in the debate about trialling the proposals because my noble friend did so and I had mentioned the issues in the debate on the first or second group of amendments. Nevertheless, it is difficult to apply experience from a situation where there has been a voluntary arrangement, such as we have heard described, to the less voluntary arrangements proposed by the Bill.

I turn to our Amendments 10 and 11. Schedule 1 proposes amendments to the Fire and Rescue Services Act. Proposed new Section 4A will allow the Secretary of State to make an order for a PCC to be a fire and rescue authority. Under subsection (4) of the proposed new Section, he can do so only if a PCC has put a proposal to the Secretary of State; and under subsection (5) he can do so only,

“if it is in the interests of economy, efficiency and effectiveness”—

all three Es are spelled out here, as I mentioned earlier —or,

“in the interests of public safety”.

Under the provisions for collaboration agreements there are various duties and restrictions, in Clauses 2 and 3, including the specific issue of the efficiency and effectiveness of the police force. These amendments probe whether wider considerations will apply under proposed new Section 4A than simply the items spelled out in its subsections (4) and (5). Amendment 11 would require the Secretary of State to consider the views arrived at during the formal process of assessment provided by Clause 2.

Our Amendment 99 and Amendments 12, 30 and 44 in the name of the noble Lord, Lord Rosser, take us back to whether we are in the territory of the interests of the three Es and the interests of public safety, or whether one of those in effect overrides the other by being alternatives. In my earlier read-throughs of the Bill I was really puzzled about why it should not be both—and, indeed, why safety needs to be spelled out. Given the Minister’s response to Amendment 6, I hope she will be able to consider these amendments as well. I beg to move.

[Lord Rosser]

I will be brief. As the noble Baroness, Lady Hamwee, mentioned, Amendments 12, 30 and 44 in this group are in my name as well as hers. As she also said, they seem not too dissimilar to the issue we discussed earlier when we debated Amendment 6. Amendment 12 provides that before the Secretary of State may make an order for a police and crime commissioner to take over the fire and rescue authority, it must appear to the Secretary of State that it would be both,

“in the interests of economy, efficiency and effectiveness”,

and,

“in the interests of public safety”.

It is that last bit which the amendment seeks to achieve.

Amendments 30 and 44 are in a similar vein in respect of the making of an order by the Secretary of State for the delegation of the functions of a fire and rescue authority to the relevant chief constable and in respect of a police and crime commissioner submitting a proposal to the Secretary of State to take over a fire and rescue authority.

Without wanting to labour the point too much, it is not clear why the Government, on this major change in organisational structure for the fire and rescue services, consider that it being,

“in the interests of economy, efficiency and effectiveness”,

and it being,

“in the interests of public safety”,

should be separated and alternatives when it comes to the Secretary of State making an order for a police and crime commissioner to be the fire and rescue authority. It raises issues about in what circumstances the Secretary of State would make an order when he or she considered it to be in the interests of economy, efficiency and effectiveness but not in the interests of public safety, which the Secretary of State would apparently be entitled to do under the terms of Schedule 1. Likewise, in what credible circumstances would the Secretary of State make an order based on it being in the interests of public safety when it was contrary to the interests of economy, efficiency and effectiveness, as apparently he or she could also do under the terms of Schedule 1 as it stands?

As the noble Baroness, Lady Hamwee, suggested, I am rather hoping I may get a fairly sympathetic response, similar to the one I had on Amendment 6. I will wait to hear what the Minister has to say.

[Baroness Williams of Trafford]

My Lords, where a PCC is interested in taking responsibility for fire and rescue, he or she will work with the local fire and rescue authority to prepare a business case setting out their assessment of the benefits and any costs of a transfer. The business case will then be subject to local consultation. The business case would need to show the Home Secretary how the proposals would be in the interests of economy, efficiency and effectiveness on the one hand or public safety on the other. The Home Secretary is able to make the order only if she is satisfied that one or other of these tests has been met. Amendments 12, 30 and 44 would instead require both tests to be satisfied. Amendment 99 seeks to apply the same change to the single employer model operated by a combined authority mayor.

The provisions as currently drafted mirror those for fire and rescue authority mergers. Section 2(2) of the Fire and Rescue Services Act 2004 sets out that the Secretary of State may make a scheme combining two or more fire and rescue authorities only if it would be in the interests of economy, efficiency and effectiveness or public safety. This is a long-established test, enacted by the previous Labour Administration, for the closer alignment of two services, and we therefore do not agree that an amendment is required.

We would expect that any assessment of the impact of a proposed transfer of governance on effectiveness would include an assessment of its impact on public safety, which is a primary function of the emergency services. In forming a view on the first test of economy, efficiency and effectiveness, the services’ role in protecting the public should therefore be paramount in the PCC’s consideration.

However, the provisions which, as I have said, mirror those that have been tried and tested for fire mergers, also provide for a separate test based on public safety. There may be exceptional circumstances where a current service is failing to protect the public and urgent action is required. In such a case, it is right that the Home Secretary should be able to make a Section 4A order solely on the grounds that to do so would be in the interests of public safety.

While I do not agree with the proposed amendments, I recognise the principle behind them. Police and fire and rescue services perform an important function in protecting the public, and we would not want a transfer of governance to have a negative impact on public safety. It is absolutely not the intention for these provisions to permit cases that would save money but damage front-line provision—which I almost said in my answer to Amendment 1—and the Home Secretary would not approve such a proposal. Indeed, such a proposal would not satisfy the test that it would be in the interests of economy, efficiency and effectiveness for a Section 4A order to be made.

However, there might be other ways of incorporating the spirit of these amendments in Clause 8 of and Schedule 1 to the Bill in order to make it absolutely clear that there is no question of an order being made that would have a detrimental impact on public safety. If the noble Lord, Lord Rosser, would be content not to move the amendment, I will reflect further on what he and the noble Lord, Lord Paddick, have said in advance of Report, although they will understand that I cannot give a commitment at this stage to bring forward a government amendment.

Amendments 10 and 11 are on assessing the duty to collaborate. I cannot be so accommodating with these amendments. As I have set out, where a PCC wishes to seek responsibility for fire and rescue, they will be required to prepare a local case setting out their proposal. The Home Secretary will then give consideration to whether it would be in the interests of economy, efficiency and effectiveness or public safety for the order transferring the functions to be made.

Amendments 10 and 11, proposed by the noble Baroness, Lady Hamwee, in the place of the noble Lord, Lord Paddick, would, in effect, additionally require the Home Secretary to assess the extent to which opportunities for collaboration under the provisions of Chapter 1 of Part 1 had been maximised before she decides whether to agree to the PCC’s business case for a Section 4A order.

I do not agree that such additional steps are required. The duty to collaborate and the fire governance provisions in the Bill are distinct. It is not necessary for a PCC to have exhausted all local opportunities for collaboration in order to make a case for a transfer of governance. While PCC governance of both police and fire and rescue services can maximise the opportunity for collaboration between policing and fire and ensure that best practice is shared, the benefits extend beyond collaboration alone. As Sir Ken Knight found in his efficiency review, the directly accountable leadership of police and crime commissioners can clarify accountability arrangements to the public.

On the basis of that and the undertaking that I will reflect further on Amendments 12, 30, 44 and 99, I hope the noble Lord, Lord Paddick, will be content not to press his amendment.

[Baroness Hamwee]

My Lords, I reserve my right to consult my noble friend after today.

The start of the Minister’s explanation of “and” and “or” made me wonder whether consistency was more important than logic and safety, but it would be unkind to pursue that thought. The thought I will pursue is the Minister’s comments about safety being encompassed within economy, efficiency and effectiveness —effectiveness in particular, if I understood her correctly. Clearly they are not, otherwise it would not be necessary to have paragraphs (a) and (b) as separate paragraphs and to have paragraph (b) in addition to paragraph (a). We are all grateful to the Minister for offering to consider this further. I think we are not going to come to a meeting of minds on the two earlier amendments. I beg leave to withdraw the amendment.

Amendment 10 withdrawn.

--- Later in debate ---

I have one final point. The Minister has spoken previously about consultation and about seeking the agreement of the parties involved to a police and crime commissioner taking over responsibility for a fire and rescue service—or at least seeking to reach that agreement. Could the Minister take this opportunity to be a little more specific about the extent to which there will be a statutory requirement to consult in these circumstances? If there is one, who will be consulted? Will it cover, for example, the organisations that represent the employees of the organisation concerned? I beg to move.

[Baroness Hamwee]

My Lords, my noble friend Lord Paddick and I have Amendment 23 in this group. It is a probing amendment, although it no doubt looks as if it may be more than that. It would take out what will be the new Section 4E in the Fire and Rescue Services Act, which is the requirement for an authority created by Section 4A to have a fire fund and for receipts and expenditure to be dealt with through that fund.

I am not of course challenging the need for transparency or the need to enable audit trails and all the rest of it, but a separate fire fund presumably means a separate policing fund, and our amendment is intended to probe how this will work. If there are to be efficiencies through shared facilities, and perhaps shared sites and some shared staff, how are those to be dealt with? Is there to be an allocation of costs of the shared services to the fire fund and to the policing budget? What is to stop virement between police and fire—or between fire and police, whichever way you look at it? I hope that the noble Baroness can explain a little more how the budgetary and accounting arrangements are to operate.

[Baroness Williams of Trafford]

My Lords, public safety is of course paramount and it is important that fire and rescue authorities are properly resourced to carry out their life-saving and other functions. When a PCC is interested in taking on the governance of fire and rescue, they will work with the local fire and rescue authority to prepare their proposal, including an assessment of why it would be in the interests of economy, efficiency and effectiveness, or public safety, for the transfer of governance to take place. If the noble Lord is amenable, we can address the issue of consultation in Amendments 47 and 48, as it is relevant to them. It is also important to remember that fire and rescue authorities are required, under the duty to co-operate, to provide the PCCs with necessary information to inform their proposal. It is reasonable to expect that an authority’s funding provision will be a key piece of information for any PCC to consider.

Amendment 13, put forward by the noble Lord, Lord Rosser, appears, at least in part, to be based on the assumption that under the governance or single-employer model it would be possible to divert fire service funding to the police force. The noble Baroness, Lady Hamwee, also talked about virement. I assure the Committee once again that there will be no change to the way funding is allocated to fire and rescue authorities that are the responsibility of PCCs, and no question but that FRAs will have the resources they need to carry out their important work. As the then Policing Minister said during the passage of the Bill in the House of Commons, under both the single-employer model and the governance model, there will continue to be two separate precepts and two separate central funding streams for the police and the fire and rescue service.

The noble Lord, Lord Rosser, talked about the position since 2010 regarding firefighter jobs et cetera. There has been a long-term downward trend in the number of both fires and fire deaths, which recently reached historically low levels. Despite the latest increases —which I concur with the noble Lord about—fire deaths in England in 2015-16 were still 9% lower than they were some six years ago and fire injuries requiring hospital treatment were 25% lower. At this point, I pay tribute to the fire service for installing smoke alarms in people’s homes and advising them on how to reduce the risk of fire. I am sure that has helped with the long-term reduction in these numbers.

Given that assurance, I hope the noble Lord agrees that the amendment is unnecessary. By driving efficiencies in the way that back-office and support functions are provided to both the fire and rescue service and the police force, the provisions in Part 1 will help to strengthen front-line services.

I understand that the intention of the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee, in tabling Amendment 23 is, as she said, to probe how any joint service functions could work in practice if the funds continue to be separated in the way I have set out. The Committee should be in no doubt that under the provisions in the Bill, a police and crime commissioner will not be able to use the fire budget for policing and vice versa. The money spent on each service will need to be accounted for separately in order to ensure transparency and accountability.

However, I assure the noble Baroness that it will still be possible for police and fire funding to be allocated for the purposes of shared back-office functions or other collaboration arrangements, but the costs for these functions will be apportioned back to the appropriate budget and accounted for separately. This ensures that clarity and transparency in funding is maintained. Requiring the police and crime commissioner to hold a separate fire fund for their fire funding mirrors the existing arrangements in place for them to hold a police fund.

Given those assurances, I hope that the noble Lord will be prepared to withdraw the amendment.

--- Later in debate ---

Moved by

[Baroness Hamwee]

14: Schedule 1, page 174, line 36, after first “and” insert “(with the consent of the person to whom the liability is owed)”

[Baroness Hamwee]

My Lords, we have Amendments 14, 15, 32 and 100 in this group. Amendments 14, 32 and 100 concern the provisions in different parts of the Bill for the transfer of liabilities from an existing authority to a new one. My question is the same in each of these examples: will the consent on the part of the person to whom the liability is owed be required, and will there be an indemnity of that person? In the normal commercial world, where a transfer or merger is made by agreement you cannot simply transfer a liability without the other party to the arrangement being involved and agreeing to it. New Section 4C(4) provides that such an arrangement may be permitted, but it does not require it. That applies to three of the four amendments.

Amendment 15 deals with the provision under new Section 4C(5) for a scheme to provide for any modifications—that is, modifications made by agreement after the scheme comes into effect—

“to have effect from the date when the original scheme comes into effect”.

Why is this necessary? It may not technically be retrospective but it could be quite confusing. Is it simply to ensure that any glitches that have been identified are put right from the start—that is how I read it—and what happens if third parties have been affected before the scheme is modified? I beg to move.

[Baroness Chisholm of Owlpen]

My Lords, the noble Baroness, Lady Hamwee, has indicated that these are probing amendments, designed, in the cases of Amendments 14, 32 and 100, to provide some reassurance to those persons to whom a liability is owed that they will not be disadvantaged by a scheme transferring the liability. I appreciate that assurances on liabilities are important when considering arrangements for their transfer from an existing fire and rescue authority to a new PCC-style FRA or to a chief constable.

Statutory transfer schemes of this kind are well precedented. Indeed, I might add that the Police Reform and Social Responsibility Act 2011 directly transferred all property, rights and liabilities of the old police authorities to the new police and crime commissioners or other local policing body. We have adopted the usual approach here of not requiring the consent of affected persons to the transfer of property, rights and liabilities. Once a Section 4A order is made, the existing fire and rescue authority will cease to exist and it is therefore right that all property, rights and liabilities held by the existing FRA should be transferred. If a person to whom a liability was owed was given an effective veto as to the transfer, that would arguably necessitate the preservation of the existing FRA alongside the new PCC-style FRA. This is a recipe for confusion and muddle.

However, I reassure the noble Baroness that the new PCC-style FRA, or the chief constable, to whom liabilities are transferred will take on the contractual obligations in respect of those liabilities, including, for example, the repayment of any debt. The person to whom the liability is owed will not be disadvantaged.

On Amendment 15, I hope I can reassure the noble Baroness that the approach taken in the Bill to the modification of a transfer scheme is the right one. The power to make modifications is designed principally to ensure that, should it be necessary, corrections may be made to a transfer scheme, particularly to address any errors made regarding the persons to whom rights or liabilities have transferred. As I am sure the noble Baroness appreciates, such transfer schemes can be complex and it is important to safeguard the ability to make revisions. These would need to be effective from the date at which the transfer came into being, rather than the date when the modification was made. To provide otherwise would risk disadvantaging a person, for example, to whom a liability was owed. I assure her that such modifications will be made only where there is agreement to do so between the affected parties.

On the basis of these reassurances, I trust that the noble Baroness will be content to withdraw her amendment.

[Baroness Hamwee]

My Lords, that is very helpful, and I do indeed beg leave to withdraw the amendment.

Amendment 14 withdrawn.

--- Later in debate ---

[Baroness Hamwee]

My Lords, we indeed have amendments at the various points at which there is reference to the application of an enactment with or without modifications. I apologise to the Committee that two of the amendments were published only this morning. They were tabled at the same time as the others and I do not know at what point they got lost—there is no particular significance in that.

I missed whether the noble Baroness in her reference to existing legislation was using the term “necessary modifications” as a quote from legislation or whether it was an assurance. If it is in other legislation, that makes my case; if not, I am not clear where the assurance will be in the Bill that the modifications will be “necessary” only for the purposes that she explained. On the face of it, to be able to apply an enactment with, by definition, unnecessary modifications, gives the Secretary of State a very wide power. I am sorry if I am being dim. It is entirely possible that I have lost the plot, but assurances not just from the Dispatch Box but in the Bill as to how the power will be used would be the most desirable way to go.

[Baroness Chisholm of Owlpen]

I am grateful to the noble Baroness for explaining her amendments. She explained that they are designed to seek further clarification of the scope of the order-making powers conferred on the Home Secretary to enable provisions of local policing and fire and rescue enactments to be applied to a PCC in relation to their fire and rescue functions, and to a combined authority mayor, where they are exercising the single-employer model.

The ability to apply provisions for such enactments with or without modifications is important to ensure that PCCs and combined authority mayors have the necessary powers and duties to exercise their functions effectively. This may include the ability to make consequential modifications as well as those that are necessary in the strictest sense to enact the arrangements contained within the PCC’s fire governance proposal.

I reassure the noble Baroness that the Home Secretary would need to exercise these powers reasonably and rationally and would do so only on the basis of applying provisions that are consequential on the implementation of either the governance or single-employer models. The Joint Committee on Statutory Instruments will also play an important role in scrutinising the use of the delegated powers and would make a report if in its view the Home Secretary had acted outside her powers or used them in an unusual or unexpected way. I should add that the Delegated Powers and Regulatory Reform Committee did not raise any concerns in respect of the existing order-making powers in the Bill relating to local policing enactments.

On the basis of these assurances, I hope that noble Lords will support the government amendments.

[Baroness Hamwee]

My Lords, I thank the noble Baroness. She seemed for most of her response to be making my case for me. I noted that the Delegated Powers and Regulatory Reform Committee had not commented on this—but, undeterred, I ploughed on. I will want to read precisely what she said, but I think that the important point is about the reasonableness of any modification made by the Secretary of State and how it relates to what she and I are both describing as “necessary”. I will not pursue the point this evening, but it is no reflection on her if I say that an assurance that the Secretary of State will do the right thing does not cut it for me with legislation.

Amendment 16 agreed.

Moved by

[Baroness Hamwee]

17: Schedule 1, page 176, leave out lines 24 and 25

[Baroness Hamwee]

My Lords, I always relish advice to the Committee that an amendment that we know has no hope of being agreed today may pre-empt a government amendment. Amendments 17 and 19 relate to the provision for the delegation of functions of the fire and rescue authorities and the two new subsections which deal with further delegation. My question—again probing—is why further delegation is required, as distinct from a chief simply arranging for functions to be carried out by his or her officers or staff. Later, new Section 4I(4), I think, seems to envisage arranging for functions to be carried out, and that is very different from delegation. I am sorry that the noble and learned Lord, Lord Hope, is not here, because he might agree with me about the principle that someone to whom something is delegated cannot himself delegate that thing. Will the Minister also confirm that subsections (4) and (5) of new Section 4H apply to further delegation?

The other amendments in the group are consequential, and I am sure that if my amendment were agreed, other consequentials would be required—but there is a limit. I beg to move.

[Baroness Williams of Trafford]

My Lords, as the noble Baroness explained, these amendments are about the delegation of fire and rescue functions by a police and crime commissioner and sub-delegation by the chief constable under a single-employer model. I understand these to be probing amendments—the noble Baroness confirmed that—which are designed to test why arrangements for delegation are required, and to ensure that the chief fire officer or chief constable, as appropriate, will continue to have operational responsibility. I hope to be able to reassure the noble Baroness on both those points.

Where an order is made transferring responsibility for the fire and rescue service to the police and crime commissioner under new Section 4A of the Fire and Rescue Services Act 2004, it is necessary for that order to make provision about the delegation of functions by the police and crime commissioner. As the fire and rescue authority, the PCC will have the functions of the fire and rescue service vested in it as a corporate sole. However, in practice we would expect it to delegate the majority of functions to a chief fire officer who, under arrangements to be made by the PCC, would have operational responsibility for the service.

The order therefore needs to specify which functions may or may not be delegated, including the strategic functions that must be performed by the PCC and those operational functions we would expect to be performed by the chief fire officer. It is right that the PCC should be enabled by the order to delegate fire and rescue functions to its fire and rescue staff, including firefighters, to secure the delivery of an efficient and effective fire service. I have also tabled technical amendments to ensure that the PCC is able to delegate fire and rescue functions to the staff of its PCC office so that the office can operate effectively, appoint a single chief executive and share policy support if it so wishes to drive efficiency.

Where an order is made under new Section 4H of the 2004 Act implementing the single-employer model at the request of a PCC, it is also necessary for that order to make provision about the delegation of functions by the chief officer. The chief officer will legally be the chief constable of the police force area, but will be the employer of both police and fire and rescue personnel. In order to secure the effective delivery of the fire and rescue service, the chief officer will need to be able to sub-delegate functions that have been delegated to them by the PCC to fire and rescue staff who have transferred to them, as well as to any fire and rescue staff they employ, including firefighters.

Additionally, to help them to maximise the benefits of collaboration between the two services, the chief officer will also be able to delegate fire and rescue functions to their police personnel. However, let me be absolutely clear that this is not an operational merger, as I have said before. The delegation of functions is subject to the clear restriction that police officers cannot be employed for the purposes of fighting fires and that firefighters cannot perform functions that are reserved for warranted officers.

Finally, I would add that, in practice, the arrangements with regard to the delegation of functions will operate in similar fashion to the way in which they do now. The 2004 Act confers functions on fire and rescue authorities, but those authorities do not discharge all functions themselves. Many are delegated to a chief fire officer and sub-delegated beyond that. We need similar flexibility under the scheme provided for in the Bill. With that explanation, I hope that the noble Baroness will withdraw her amendment.

[Baroness Hamwee]

My Lords, the first thing I should do is thank the Minister for putting on the record the answer to a question that I put to the Bill team a little while ago seeking some clarification. It is good to have that on the record. That was in regard to officers in different types of authority—police and fire—carrying out one another’s functions.

I remain a bit confused about sub-delegation, as distinct from arranging for functions to be carried out by what under this scheme is a sub-delegatee—I do not know whether that is the right word for the person further down the chain. I will think about what the Minister has said, and I beg leave to withdraw the amendment.

Amendment 17 withdrawn.

--- Later in debate ---

Moved by

[Baroness Hamwee]

45: Schedule 1, page 185, line 22, at end insert—
“(2A) The cost of obtaining the information referred to in sub-paragraph (2) shall be met by the police and crime commissioner.”

[Baroness Hamwee]

My Lords, my noble friend Lady Bakewell of Hardington Mandeville would have moved and spoken to the amendments in this group had she been able to be here. Her experience is very long and very current. That is what has led to these amendments, although she is not alone in wishing to pursue the points. We have Amendments 45, 47, 49, 52, 53, 54 and 55 in this group.

Under new paragraph 2(2) there will be an obligation on a fire and rescue authority to provide information. This is rarely a cost-free exercise, as anyone who has ever observed it or had to take part in it will know. A police and crime commissioner can request information —which is not unreasonable—if he is considering proposing a collaboration arrangement, but should he, perhaps rather casually, put the fire and rescue authority to a cost in providing that information? At the least, we should be assured that he cannot put the authority to a lot of cost simply by requiring information in a particular form. That can be very tedious and absorb many hours of work simply by changing the way information is presented because the person who has asked for it wants it in a particular form. It is not unknown for that sort of thing to happen. There are reasonable requirements, which is a limitation, but they apply only to the information, not to the form it takes.

With regard to Amendment 47, there is a provision in the Bill to seek views. In our view, that is inadequate. Such a significant matter would be expected to require full consultation. “Seeking views” would be understood to mean less than consultation. It suggests something less formal, thorough and precise. Amendment 49 would follow on from Amendment 47: the results of the consultation should be published.

Labour’s Amendment 48 raises an important point: new paragraph 3(b) seems to put policing above fire and rescue. However, when you have more than one fire and rescue authority in a police force area, as in the Thames Valley, for instance, only the fire and rescue people would be consulted. Should not everyone affected be consulted?

Amendments 52 and 53 would require all relevant local authorities to agree. There is a very important underlying issue here: the role of local government, which has in many ways been reduced over the years. No doubt I show my age here but it used to be seen as bringing everything together; it was a political expression of local community. Now, as I observe from well outside it, it seems to be expected to pick up what is left from other actors.

Without wishing to detract from the earlier amendments to which I have spoken, why is it necessary to allow, under Amendment 54, for modification, and what might require modifying? If you look at new Section 4A, you begin to wonder what might come within “modifications”. It does not seem to refer to a corporation sole, nor to the point about a police and crime commissioner for a different area being the fire and rescue authority. I cannot quite follow it.

Amendment 55 addresses which local authorities are relevant for the purposes of the schedule. It suggests that neighbouring authorities outside the area of the fire and rescue authority might well be affected and should come within the definition so as to enjoy the rights of relevant local authorities. Given the references made this afternoon to the innovations and co-operation between services that have already taken place, this is a further argument that neighbouring authorities ought to fall within the scope of the exercise. I beg to move Amendment 45.

--- Later in debate ---

I apologise for my lengthy response but this is an important set of amendments. I will certainly take away Amendment 49 and give it further sympathetic consideration, but I hope that the Committee will understand why we believe that the procedures for making a Section 4A order, as currently provided for in Schedule 1 to the Bill, are robust. I invite the noble Baroness to withdraw her amendment.

[Baroness Hamwee]

I am glad to hear that the Government will consider Amendment 49, and I thank the Minister for that. I am not surprised to hear that Mancunians behave well; I know that they would have the sense to ensure that Councillor Williams was on side with proposals. Of course, I agree about the bad climate that could be created if people behaved with a lack of sense, but that does not answer at all my point on the legislative provision. I have not yet seen what harm there might be in my amendment, which, as we hear from the noble Baroness, expresses what might happen in practice.

As the Minister said, and as I anticipated in my opening remarks, we are talking about information that a PCC may reasonably require from the fire and rescue authority, and there might be an issue in asking it to provide that information in a particular form. We have all come across having to fill in boxes while thinking, “If I actually gave you this document, it would give you the answers to all my points”. That is one of the things which is in my mind; I am not sure whether it was in the mind of my noble friend Lady Bakewell. However, I must make it clear that we in no way resist co-operation in this situation. I will, of course, want to talk to my noble friend and, indeed, to the Local Government Association, which has been much concerned with this whole area of the Bill. I beg leave to withdraw the amendment.

Amendment 45 withdrawn.

Policing and Crime Bill

Baroness Hamwee Excerpts

Wednesday 14th September 2016 Lords Chamber

Moved by

[Baroness Hamwee]

77: Clause 7, page 6, leave out lines 10 to 30

[Baroness Hamwee (LD)]

My Lords, Amendment 77 is in my name and that of my noble friend Lord Paddick. We also have Amendments 78 to 80 and Amendments 82 to 86 in this group. Taken together, our amendments—with the caveat that they are subject to drafting errors—would allow the police and crime commissioner to speak at meetings but not to vote: in other words, to make his voice heard and to put arguments but not to actually be part of the decision-making process.

Earlier today, the noble Lord, Lord Bach, in the debate on various earlier clauses standing part of the Bill, said—I cannot recall whether of himself or generally—“We were not elected as a fire and rescue authority”. That is what underlies this group of amendments. Clause 7 has an innocent heading about the “involvement” of the PCC in the FRA, but gives the PCC a vote. Admittedly it is limited to fire and rescue authority functions, but quite how one identifies those and limits this—even with monitoring-officer involvement, as proposed by the noble Lord, Lord Rosser, in his amendment in this group—I am really not sure. When it comes to budgetary issues, for instance, in the real world a decision over here affects a decision over there. One always has to have regard to the knock-on effects and to the whole package. Whether it is possible to split out the issues in the way that the Bill proposes, I am unconvinced.

--- Later in debate ---

[Baroness Williams of Trafford]

As I have explained, in most instances, the FRA would accept a request, and it would be in the interests of good working, good faith and collaboration for it to do so. As to the process if it refused such a request, as I understand it—I will write to noble Lords if it is any different—if it refuses it, it refuses it, and there is no recourse thereon in.

[Baroness Hamwee]

My Lords, perhaps I should make it clear that the deletion in the amendments of the transparency provisions, as the Minister described them, were consequential—or possibly presequential. I am not sure about the point on voting. That was not really the thrust of our amendments. I am not comfortable about this. She described the amendments as being anti-collaboration, but collaboration by its very nature requires two parties—not merging the parties into a single authority. However, we are where we are, certainly for tonight, so I beg leave to withdraw the amendment.

Amendment 77 withdrawn.

--- Later in debate ---

Moved by

[Baroness Hamwee]

93: Clause 8, page 12, leave out lines 2 to 6 and insert—
“(1) An order under section 107EA may not be made in the absence of—”

[Baroness Hamwee]

My Lords, my noble friend Lord Paddick and I also have Amendments 94 to 98 in this group. I am aware that if certain of these amendments were accepted consequential amendments would be required.

I want to probe whether it should be a matter for a particular combined authority mayor to initiate the procedure with which Clause 8 deals. Should this depend on an individual? Having started on that thought, I realise that if we are to have these arrangements, somebody has to start them off, but one is well aware of how a long-lasting arrangement can come about as a result of an individual seeing a short-term advantage. In any event, should there be public consultation, not the discretion which is implicit in the wording in new subsection (2)(b), which refers to,

“a description of any public consultation which the mayor has carried out”?

Surely it should be “the” consultation.

The second subject of this group of amendments is the majority provided by what will be new subsection (3), requiring that two-thirds of the,

“members of the combined authority have indicated that they disagree with the proposal”,

to block it. Come the happy day of proportional representation for local government, it will probably be quite difficult to get two-thirds to disagree. The noble Lord, Lord Harris of Haringey, will have recollections from a different perspective of getting a two-thirds majority in the Greater London Authority, where the mayor’s budget could be blocked only by a two-thirds majority. I am proposing 51%, which I suppose should be “more than 50%” if expressed properly, as that is what a majority is.

This also raises the question of why any opposition should be required to trigger what would be new subsections (4) and (5)—perhaps a more arguable point in the case of the latter—because opposition to the mayor’s proposal merely makes the Secretary of State investigate the situation fully. It does not actually block the proposal. There is a question here before one even gets to looking at the size of the majority. I beg to move.

[Baroness Williams of Trafford]

My Lords, as the noble Baroness, Lady Hamwee, has explained, these amendments relate to the process for adopting the single employer model by a combined authority mayor. I will take each amendment in turn.

Amendment 93 removes the requirement for a mayor to request that the Home Secretary approves an order implementing the single employer model. In effect, it enables any person to make such a request of the Home Secretary. As I explained during our consideration of the Cities and Local Government Devolution Bill, we considered that directly elected combined authority mayors provided that strong, clear accountability necessary to exercise the wide-ranging powers that were devolved to an area. The processes in the Bill reflect this, giving the mayor the discretions and powers to be exercised locally that it is right for the mayor to have, given their own local mandate and direct accountability locally through the ballot box. Mayors should be able to take the big decisions that they are elected to make, with appropriate safeguards. Where a mayor is responsible for police and fire functions, we believe that the mayor should be the person to make such proposals to the Home Secretary about how these functions are run. Adopting this amendment would be counter to this devolutionary approach, whereby powers and duties usually exercised by Whitehall have been devolved to the mayor.

Amendments 94, 95 and 98 require a mayor seeking to put in place the single employer model to carry out a public consultation on the proposal. The Bill already requires the Home Secretary to consider whether a proposal for the mayor to put in place the single employer model is in the interests of economy, effectiveness and efficiency or public safety before approving it. These provisions do not prohibit a mayor from consulting locally on a proposal. Should the mayor wish to do so, the Home Secretary would be required to have regard to any responses to the consultation when considering whether to give effect to the proposal. Where powers have been devolved to an area, it is for the directly elected mayor to decide how particular proposals, be they for creating a single employer model or any other exercise of powers, should be taken forward. It is important that any proposals brought forward by a mayor are properly scrutinised. Noble Lords will have the opportunity to debate them, as orders to implement the single employer model under a mayor will be subject to the affirmative procedure.

Amendment 97 seeks to lower the threshold for triggering an independent assessment of a proposal to implement the single employer model under a mayor, while Amendment 96 takes the further step of requiring the Home Secretary to order an independent assessment of a proposal, regardless of whether there is local agreement. The amendment would also require a mayor to submit to the Home Secretary any representations made by elected members of the combined authority about the proposal and the mayor’s response to those representations.

It would not be proportionate to lower the threshold or strike out the limiting provisions for ordering an independent assessment of a proposal. The approach we have taken mirrors that of devolution deals agreed to date, whereby members are able to reject specific proposals brought forward by the mayor where there is agreement from at least two-thirds of members of the combined authority. Given that the combined authority mayor will have been directly elected with a strong democratic mandate, we consider that two-thirds threshold entirely appropriate. Not to bore noble Lords too much about Greater Manchester but, as I explained, my position was as one of 10—the only Conservative—and that was the situation that faced me year on year, quite often frustratingly. But the two-thirds majority worked. Lowering the threshold would give room for more regular mischief-making, should members of local authorities see fit. In my experience—noble Lords may disagree—it is an entirely appropriate threshold, and I hope the noble Baroness will withdraw her amendment.

[Baroness Hamwee]

My Lords, I am sure the Minister, even as only one of 10, was quite capable of making enough mischief. I was never going to win an argument against the strong mayor model and the implications of that—but I do not think having a strong mayor means that there should not be consultation. I beg leave to withdraw the amendment.

Amendment 93 withdrawn.

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[Lord Harris of Haringey]

I will certainly be grateful to receive a letter from the noble Baroness, Lady Williams. However, I think she has slightly missed the point—namely, that, under the current legislation, if the deputy mayor for policing and crime is not an Assembly member, he or she is politically restricted. It is just conceivable that, because of the convoluted way in which legislation is frequently drafted, the political restriction is derived from something other than those particular clauses in the Local Government Act, but I rather doubt it. Therefore, we are talking about those people who are not already Assembly members who are appointed as either deputy mayor for policing and crime or deputy mayor for fire. The Bill seeks to apply that provision to the deputy mayor for fire if they are not an Assembly member, so they are politically restricted. As I have said before, I think that is a nonsense. Therefore, I hope that the noble Baroness will check precisely how the legislation applies to them. But it certainly has applied to the last two deputy mayors for policing and crime in London, because both of them have been obliged to resign their council seats as a consequence not of any disqualification laid down other than the fact that they have become politically restricted, so clearly the measure has applied under those circumstances. The noble Baroness, Lady Hamwee, no doubt has encyclopaedic knowledge on this.

[Baroness Hamwee]

I absolutely do not have any encyclopaedic knowledge. However, I am very glad that the Minister has agreed to look into this in more detail because, as the noble Lord describes the situation, it is a farce. As I recall, there was a sort of evolution of thinking about deputy mayors and the use of the 10-plus-two people in the original Greater London Authority Act, and their position. Originally, they were thought of absolutely as the mayor’s creatures. Will this be borne in mind in looking at the position because I think that some of this comes from the original ideas on what the structure would be and how the mayor might structure his or her office? Perhaps things have just moved on a bit from there. I suggest that this is part of a slightly bigger jigsaw.

[Lord Harris of Haringey]

My Lords, I am grateful to the noble Baroness, Lady Hamwee, for her remarks. I could have included in this the other deputy mayors. I thought that was probably outside the scope of the Bill, but, what the hell, I might have gone for it, because, among the crop of deputy mayors appointed by the current Mayor of London, and, indeed, by his predecessor, were people who were serving borough councillors or, in one case, a borough mayor. They had to resign their offices for those other positions. However, I have confined this amendment to the specific positions of deputy mayor for policing and crime and the deputy mayor for fire, possibly to make it easier for the noble Baroness to look at it. The situation is that, if they are not Assembly members, they are politically restricted. If they are Assembly members, obviously, they cannot be. That is a stupid anomaly which I hope the Government can remedy. Therefore, I beg leave to withdraw the amendment.

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[Lord Harris of Haringey]

My Lords, this is a completely different point, which relates to the role of the proposed fire and emergency committee of the London Assembly. I was interested that the noble Baroness, Lady Williams, moved Amendment 72 a few minutes ago, which said that police and crime panels should become the “police, fire and crime panel” outside London. In London, the parallel structure for the police and crime panel is called the Police and Crime Committee. Confusingly, London has a PCC, but it is not a commissioner. The parallel structure which is therefore created is that a committee of the London Assembly meets—unlike police and crime panels elsewhere in the country—on a very regular basis, comprising politicians who know each other from the same authority. That works better than police and crime panels elsewhere.

The parallel structure created in the Bill is that there should be a fire and emergency committee which would be set up by the London Assembly and carry out the functions of scrutiny with regard to the deputy mayor for fire. That is fine—there should be a scrutiny structure. However, the Bill specifically says that the fire and emergency committee cannot carry out any other functions of the authority. It is saying to the Assembly: “You have to create two separate committees: one to look at policing and one to look at fire”. I would not suggest merging the two committees, but everywhere else in the country the Government are saying that the same panel must do it, even though it will be much less well resourced and much less able to do an effective job. But in London you have to have two committees.

Why can it not be left, in the spirit of devolution and localism, which the Government so espouse, to the London Assembly to decide how it wants to organise these functions? If it wants to have one, two or even three committees, as long as it carries out the functions set out of scrutiny of the respective deputy mayors, surely it should be allowed to decide how it organises to do that. I beg to move.

[Baroness Hamwee]

My Lords, I support the noble Lord, Lord Harris, on this. I remember quite clearly, during the passage of the Greater London Authority Act, the then Minister—or the government representative at the Dispatch Box; I think it was a Whip at the time—saying firmly, on the basis of notes coming to her from the Box, that the London Assembly should be allowed to sort out its own procedure. I think we were debating an issue around a quorum. The same applies here, probably in spades. It is also interesting that the Government, who are concerned about efficiency, effectiveness and economy, should insist on procedures that must have the potential to be less efficient and more expensive.

[Baroness Williams of Trafford]

My Lords, as the noble Lord, Lord Harris, explained, the amendment would delete the provision which prevents the assembly arranging for any of its non-fire and emergency committee functions to be discharged by that committee. The role of the fire and emergency committee will be to review how the London Fire Commissioner exercises his or her functions and to investigate and prepare reports on the commissioner’s actions and decisions. The committee will also review draft documents presented to it by the London Fire Commissioner and make a report or recommendations to the mayor. The committee will also undertake confirmation hearings in respect of the appointment of the London Fire Commissioner and the deputy mayor for fire. In addition, it will have the power to require the deputy mayor for fire, the London Fire Commissioner and any officer of the London Fire Commissioner to attend proceedings of the committee to give evidence.

The functions are set out in the Bill so that it is clear that the fire and emergency committee has a specific fire-related purpose. It follows that the committee should not be used for any non-fire-related business of the assembly. This is clearly different from everywhere else in the country, as the noble Lord said—and I am sure that other places in the country will argue for what London has. The position in London is different. There will be two separate functional bodies and no move to a single-employer model, so in that sense it is not the same as elsewhere. I apologise for doing it again, but I compare Greater London to Greater Manchester—it is four times the size.

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Moved by

[Baroness Hamwee]

114: Schedule 2, page 212, line 1, at beginning insert—
“(za) any actions and decisions of the Deputy Mayor for Fire,”

[Baroness Hamwee]

My Lords, new Section 327I gives the Assembly the power to investigate and prepare reports on certain matters. My amendment would add,

“any actions and decisions of the Deputy Mayor for Fire”,

and,

“any other matters which the Assembly considers to be of importance to fire and rescue services in Greater London”.

Those are taken directly from the powers of the London Assembly in respect of policing—of its police and crime panel. It is called a panel; it runs as a committee. It has the power to investigate and prepare reports about any actions and decisions of the Mayor’s Office for Policing and Crime, and matters which the Assembly considers to be of importance to policing and crime reduction in the Metropolitan Police district. I ask why there is no equivalent for fire.

I note that new subsection (5) will give the Assembly the power to summons the deputy mayor for fire to attend and to produce documents. It seems odd that it should have no power to report and investigate the items and person that it has the power to summons. I beg to move.

[Baroness Williams of Trafford]

My Lords, the amendments proposed by the noble Baroness, Lady Hamwee, would extend the powers of the assembly fire and emergency committee to investigate and prepare reports about the deputy mayor for fire and any other matters which the assembly considers to be of importance to fire and rescue services in Greater London.

With regard to Amendment 114, the noble Baroness makes a valid point about the need for scrutiny of the actions and decisions of the deputy mayor for fire. I am happy to consider this amendment further in advance of Report. On Amendment 115, any other matters which the assembly considers to be of importance to fire and rescue services will inevitably have already been considered by the London Fire Commissioner in the exercise of his or her functions, and consequently will be subject to scrutiny by the fire and emergency committee. We are not therefore persuaded that this catch-all provision is needed. On the basis that I will consider further Amendment 114, I hope that the noble Baroness will be content to withdraw it at this stage.

[Baroness Hamwee]

My Lords, I am grateful to the Minister for offering to look at Amendment 114. However, I wonder whether before Report she could look also at Amendment 115 in the light of Section 33(3)(f) of the Police Reform and Social Responsibility Act 2011. Section 33(3) of that Act gives powers that cover,

“actions and decisions of the Mayor’s Office for Policing and Crime”.

That is the equivalent, in policing terms, of the deputy mayor for policing. It also gives powers that cover,

“actions and decisions of the Deputy Mayor for Policing and Crime”.

Quite separately, in paragraph (f), are the,

“matters which the Assembly considers to be of importance to policing and crime reduction in the metropolitan police district”.

This is the exact equivalent, I would have thought, of my Amendment 115. They really do go together—it is a package of scrutiny.

If there is a difference between the provisions relating to policing and the provisions relating to fire and rescue in terms of the assembly’s powers, somebody is going to make the distinction and say, “No, you can’t go there”—when actually, they should go there. However, for the moment, I beg leave to withdraw Amendment 114.

Amendment 114 withdrawn.