Visas: Domestic Workers

Baroness Hamwee Excerpts

Tuesday 18th October 2011 Lords Chamber

Asked By

[Baroness Hamwee]

To ask Her Majesty’s Government, in bringing forward proposals to end the Domestic Workers visa, what consideration they have given to the protection of the rights of domestic workers.

[The Minister of State, Home Office (Lord Henley)]

My Lords, the rights of overseas domestic workers in private households are discussed in the Government’s consultation document, Employment related settlement: Tier 5 and overseas domestic workers. The consultation sets out a number of proposals for reform, which include making protections more appropriate should the route be retained. We are currently considering the responses that have been received.

[Baroness Hamwee]

My Lords, the Minister will understand that the portability of the current visa, which means a worker can change employer as long as he or she remains in domestic work, is fundamental to safeguarding the rights of that employee and to safeguard against bonded labour. He will appreciate that I refer to rights such as to be paid at least the national minimum wage, not to be forced to work excessive hours and so on. There are some horrific stories. On Anti-Slavery Day—and every day should be regarded as Anti-Slavery Day—will the Government take into account the need to be very mindful of the rights of all who work in our country?

[Lord Henley]

My Lords, my noble friend is right to raise this issue on Anti-Slavery Day, but she is also right to say that we should take account of these matters on every day of the week and obviously we will. Settlement has almost become automatic for those who wish to stay in the United Kingdom under these arrangements, and the consultation is about being more selective about those who wish to stay permanently while also, as my noble friend puts it, making sure their rights are safeguarded.

Terrorism Prevention and Investigation Measures Bill

Baroness Hamwee Excerpts

Wednesday 5th October 2011 Lords Chamber

[Baroness Hamwee]

My Lords, I, too, thank the Minister for his introduction and welcome him to his position. If I were to say that I wished that my noble friend Lady Browning was here, I would not want him to take that the wrong way, but I use this opportunity to pass on the House’s good wishes to her.

I very much welcome the repeal of the 2005 Act. I hope that by the time this Bill leaves the House I shall be more enthusiastic about the whole of it, but I am already enthusiastic about Clause 1.

No one could envy a Home Secretary faced not just with specific decisions under that Act and this Bill, if enacted, but also with wider policy. I am very conscious of who is sitting immediately in front of me—the noble Lord, Lord Howard of Lympne—in saying this. Control orders always seemed offensive to me because of the impact on the individual and because of the inherent risk that, in using an order, or measure, to restrain a potential terrorist, the effect might be to drive that individual, or perhaps others who knew him and who knew about the restraint because they had been in the same community—however you define that—towards the very actions that one sought to avoid. That is quite the opposite of the intended effect.

I do not challenge the assessment of the risk of the threat of terrorism and am of course in no position to do so. As I have often said, there is no answer to, “If you knew what I know”. But it is necessary to take risks in order to manage risks. It is really not possible for the public, which is almost all of us, to know how executive decision-making operates in this area. We have in this Bill the proposed safeguard of a role for the court to determine whether the Secretary of State’s decisions are “obviously flawed”, to use the term in the Bill. That will be impossible to assess without access to the evidence, which is why the judicial role is so important. These cases are pretty likely to reach the court sooner or later, so why not start them there? However, I take a point made, I think, by Liberty, that the judges’ role must remain separate from that of the Executive, as there is a danger in a judge making a political decision.

In Committee, we will explore where the appropriate fit is within the judicial system. I know that my noble friends Lord Goodhart and Lord Phillips will address that matter. As has been said, the views of my noble friend Lord Macdonald are well known. I do not know whether he will use any of the amendments drafted by the Joint Committee on Human Rights on the basis of those views. I must say that it is pretty jammy to find that a Select Committee has drafted your amendments for you.

We will be debating later today the Terrorism Act 2000 (Remedial) Order. The Joint Committee made a number of points to the Secretary of State, one of which was that prior judicial authorisation of the power to stop and search, the subject of the remedial order, should be applied when stop and search was used without reasonable suspicion. The Secretary of State’s answer was that the Government rejected that view because it would not be appropriate or helpful,

“to blur the lines between the executive and the judiciary in this way”.

I disagree.

TPIMs will continue the use of the special advocate system. The idea of a lawyer representing a client but being unable to take instructions from that client, because there is nothing on which to take instructions, is not something that I have been able to get my head around. Neither the individual nor his lawyers would have more than the gist of the case, if one can call it a case, against him. Believe me, my practice as a solicitor persuaded me after quite a short time that one needs to be able to test the material and test evidence to destruction with your own client in order to be able to represent him.

The whole regime of special advocates will, I believe, be the subject of a Green Paper, and I use this opportunity to ask the Minister whether he could give the House any information as to when we might see it. Under the Bill, the hurdle for the Secretary of State is slightly higher than reasonable suspicion, but reasonable belief is not so very high a hurdle. We have already had mention of the draft enhanced TPIMs Bill, and we have seen the recently added Clauses 26 and 27. On the draft Bill, perhaps the Minister can tell us the arrangements for the pre-legislative scrutiny that we are promised and which will distinguish that Bill from other emergency legislation that we have seen. But under both of those, the Secretary of State would have to be satisfied on a balance of probabilities that the individual is, or has been, involved in terrorism-related activity. That is, of course, a lower standard than the criminal standard of beyond reasonable doubt. As I understand it, the enhanced TPIMs will be brought into effect depending on circumstances at the time, not on the risk related to the individual. There seems to me no reason why the balance of probabilities should not apply to standard TPIMs as well as to enhanced ones. That seems to be the logic of the way the enhanced TPIMs would come into effect. So we have executive action on a low evidence threshold and something close to executive legislation, since the Bill includes the power for the Secretary of State to repeal, extend or revive by order the legislation.

The title of the Bill is significant. We need to look at the provisions through the lens of prevention and investigation. I have heard—it may be that I read it as comments during the Public Bill Committee debate in the Commons—that control orders and TPIMs can be compared with ASBOs, but we are not dealing with a sanction or penalty here. It is also difficult to see how there can be an investigation since the objective of the Bill is to prevent offences. It is certainly difficult to see how there can be evidence of new activity for a TPIM after the first one.

The Bill raises issues around many aspects and stages of the process. I was left standing by arguments made by other noble Lords on the distinction between appeal, judicial review and the application of the principles of judicial review when we dealt with terrorist asset-freezing legislation some months ago. That legislation also threw up issues around the last of the major areas that I wish to raise today: how one deals with an individual and those around that individual—close and extended family and friends. This is an individual who has not been charged with, let alone convicted of, an offence; someone who may have terrorism in mind, but who is also a human being. Put at its lowest, and as a simple matter of protecting society, it does not seem to me to be good tactics to treat someone in such a way that we drive or tip them into the very actions that we seek to avoid. There are, of course, reputational issues for our country, too, but there is a basic moral code—common humanity—that must remain in play.

Several noble Lords attended a meeting yesterday when I asked someone who had been under a control order, which had been quashed, about the impact of particular measures. I did so wondering whether something similar to the licences that the Treasury is able to grant in the asset-freezing regime might be applied here, both general—for instance, spending on basic living costs—and case by case. The answer that the gentleman gave me was that it was the prevention from taking part in ordinary, mundane activities that was the most destructive thing. He was banned from meeting—or associating with, in the jargon—his oldest friend. Of course, both the family life of the individual and the life of his family are affected. How can they not be?

I have been thinking about the need for access to a doctor of that individual’s own choice. It is difficult to believe that control orders and these proposed measures could have no effect on mental health. Those in the know say that all the individuals under control orders whom they have encountered have been significantly damaged. It is simply not adequate to say, “Go to the local GP”.

The Minister may say that the measures will be humane and proportionate, and that that is implicit in the revised arrangement. We will want to explore that in Committee. I suspect that much will depend on how the measures are applied by the Home Secretary and others. For instance, the time of day when someone under a control order is required to report to a police station can make the difference between whether or not they are able to work or study. By the end of this process, I would like to be assured that we have made the legislation as good as it can be in what is, I acknowledge, a very difficult situation.

If we forget that there is a human being at the centre of all this, we will overlook the normal reactions to restrictions. There is the risk of driving a person into breach of a measure and thus criminalising someone who was not a criminal before. If we dehumanise someone in our own minds—the human being who is still there at the end of the process—and forget that he will have profound needs, then, whether or not there is more or less of a threat, we will not have done well. These are difficult issues. I find it quite difficult even to find the language to discuss them, but discuss them we must.

Finally, I have some rather more discrete questions to the Minister. In evidence to the Public Bill Committee in the Commons, the Metropolitan Police said that it had put in a business plan regarding the resources that it would require for surveillance. Can the Minister give me any news as to whether the Metropolitan Police has been satisfied with the response to that? Can he give the House any information about the number of prosecutions for terrorism that there have been of those under control orders? Inevitably, I also have to ask him about any news of dealing with intercept evidence.

My noble friends bring different experiences—some high profile, some lower profile but very key—and I hope that they and I, and the House as a whole, can help make this legislation intellectually coherent and satisfactorily based in the rule of law. As our own Constitution Committee has said, it has only an indirect relationship with the criminal justice system. It should be HR-compliant and obviously so—not just assessed as technically compliant, but something with which we, in our hearts as well as our minds, can live.

--- Later in debate ---

[Lord Harris of Haringey]

My Lords, as ever I am grateful to the noble Lord, Lord Howard, for his helpful intervention. My point is simple. This was a power that previous Home Secretaries and the current Home Secretary found necessary. It is one that the security services and police said was necessary. However, we are now told that the fresh air of the West Midlands conurbation and its bucolic atmosphere have so changed this individual’s personality that he now poses much less of a threat. That is frankly implausible. The reality is that this power was necessary. The present Home Secretary, knowing of the proposal that she would bring before Parliament, chose to exercise the power. The power remains necessary.

[Baroness Hamwee]

Would the noble Lord like to say anything about the development of technology? He may be overlooking the fact that individuals who are subject to these measures will almost undoubtedly be tagged. I do not know much about it, but I am sure that the technology is developing as we speak, and that it is possible to know where people who are tagged are going, and whether they are going where they should not be going. Surely that needs to be taken into account.

[Lord Harris of Haringey]

As I understand it, people who are subject to control orders are in many instances already tagged. Tagging is a useful technique. Tags can be removed, though the best tags are supposed to tell you if they have been—and I am sure that only the best tags will be purchased for this purpose. However, the problem is the risk of association. If somebody lives in a particular area and it is deemed that the danger of association is there, a tag will not tell you who comes to see that individual. Nor will it tell you where they go in their immediate vicinity, which could be precisely where those associations take place. The point of relocation is to minimise the risk of those associations, or to enable them to be monitored.

Just eight months ago, the rational and responsible Home Secretary, on the information presented to her, felt that the individual concerned was so dangerous that not only did he need to be subject to a control order but he should be relocated miles away from his previous environment. She made the judgment knowing that the Bill would remove that option and tie her hands in future. The rational and responsible Home Secretary made that judgment knowing that however much of a danger the person was thought to be, such an outcome would be taken away. The Minister needs to tell us why the judgment that the Home Secretary made then will no longer apply to this individual when the Bill becomes law.

Perhaps we should not expect the Minister to go through such contortions to provide an explanation. Perhaps all he needs to do is concede that the Home Secretary made that judgment in the interests of our nation's security but that this shabby, tawdry compromise of a Bill would prevent her making the same judgment in future. This compromise is not just between the two wings of an uneasy and unhappy coalition, but a compromise with the nation's security.

Terrorism Act 2000 (Remedial) Order 2011

Baroness Hamwee Excerpts

Wednesday 5th October 2011 Lords Chamber

[The Minister of State, Home Office (Lord Henley)]

My Lords, this order is made under the Human Rights Act 1998 and replaces the stop-and-search powers found in Sections 44 to 47 of the Terrorism Act 2000, often referred to as the Section 44 powers. These powers allowed police constables to stop and search individuals at a time and in a place authorised by a chief officer and search for articles which could be used in connection with terrorism, whether or not the police suspected the presence of such articles. The European Court of Human Rights found that the powers were not in accordance with the law. That ruling became final on 28 June 2010 and the Home Secretary made a Statement in another place on 8 July, stating that the use of the powers without reasonable suspicion would be suspended pending a review. The powers were subsequently reviewed as part of the Government’s wider review of counterterrorism powers. As a result, the Home Secretary announced that Section 44 would be repealed and replaced with a significantly circumscribed power. The Government have brought forward these proposed changes in the Protection of Freedoms Bill. However, the review also recommended that consideration should be given to whether the new powers should be made available more quickly than the Bill will allow. The remedial order before us is the result. The order has been made under the urgency procedure in Schedule 2 to the Human Rights Act 1998. The order will lapse on the passage of the similar powers currently under consideration in the Protection of Freedoms Bill in another place.

It is apparent from the European court’s ruling that there is an incompatibility to address. It is also the Government’s view, on the basis of operational advice, that given the very serious circumstances in which the new powers might be used, it was necessary to make them available using the emergency procedure which allowed the change in the law to take effect immediately. It is a fairer and more focused power with significantly stronger safeguards. It provides the police with what they need while ensuring that there are robust safeguards to prevent misuse.

The new powers inserted as new Section 47A into the Terrorism Act 2000 require that an officer reasonably suspects that an act of terrorism will take place and considers that the powers are necessary to prevent such an act. This is a significantly higher threshold than in the old Section 44 power. Furthermore, an authorisation under new Section 47A can cover only a geographical area and a period of time necessary to address the threat. The maximum period of authorisation has been reduced from 28 days to 14 days. The purpose of the stop and search has also been tightened so that the use of the powers is more closely aligned with the particular threat. In addition to these changes, there is a robust statutory code of practice. This sets out the detailed requirements for the authorisation and exercise of the powers, prohibits the continuous renewal of authorisations and requires effective monitoring and community engagement.

This order provides police with the tools they need to address a serious terrorist threat but represents a clean break from the years of misuse of the disproportionate and discredited Section 44 powers. I commend the order to the House.

[Baroness Hamwee]

My Lords, it has taken a little time for this order to reach us—although it is within the 120 days—and I wonder why that is so. It would have been good to have considered it rather earlier after the order came into effect. However, it means that we have had two helpful reports from the Joint Committee on Human Rights and I have also found helpful briefing that we received within the past two or three days from the Equality and Human Rights Commission.

As the Minister said, this is a curtain-raiser for the Protection of Freedoms Bill. I declare an interest which, when I mentioned it on a previous occasion, I discovered I shared with a surprisingly large number of Members of this House—I was stopped and searched under Section 44 by, in fact, the MoD rather than the Metropolitan Police. I was driving past the Ministry of Defence at the time. That was a random stop and search, although I have to say that I thought, and still think, it is very likely that they needed a middle-aged white woman to tick that box. Actually, they bagged two Peers because I was giving a lift to another, and they found a report from the Committee on Standards in Public Life in my boot—so there was nothing much to trouble them in all this. I was more interested than offended.

I support the order but share some of the concerns expressed by the JCHR. It used the term “unease”—I thought that that was a good one—about the Government’s assertion of necessity without being prepared to provide concrete evidence in support of alleged need. I am using shorthand, but the numbers in the House have reduced and those who are here will know what I am talking about. I am also concerned about what seems to be some confusion between “reasonable suspicion” and “reasonable belief”. The JCHR could not have known that we would debate this matter on the same day as TPIMs, but it made that connection. The JCHR made the point that “reasonable” does not appear regarding the authorising officer’s consideration of necessity for and proportionality of authorisation. When we come to the Bill, which will be amendable, perhaps we can look at the precise terms of the new Section 47.

I take the point that has also been made that placing elements of the code of practice into the legislation—the elements that restrict the use of the powers—would be desirable. It would mean greater clarity, enable breaches to be challenged and make checks on the use of the powers legally binding. There is also the point that we may need to consider further the relationship between these powers and the right to peaceful protest.

Of course I welcome the code and I note—particularly given my personal history—that the selection of individuals and vehicles at random must be within the parameters set out within the authorisation. Can the Minister give a reaction on behalf of the Government to the recommendation made by the independent reviewer of terrorism in his report of last July, at paragraph 8.39, on the revision of the code of practice to introduce full and proper guidance on the exercise of the officer’s discretion to stop and search? It is a longer paragraph than that but I am sure that the Minister will be familiar with it. The JCHR recommended prior judicial authorisation of the power to stop and search without reasonable suspicion. The Minister will not be surprised, as I said in the previous debate, that I am with the committee on that. However, I support the order.

[Lord Carlile of Berriew]

My Lords, on this occasion I feel able to support the Government’s proposals unequivocally and without demur. During my time as independent reviewer of terrorism legislation I saw—and I mean saw with my own eyes—Section 44 being overused, misused and occasionally abused. It produced very few, if any, results in terms of counterterrorism intelligence or information, and its passing is not mourned.

The problem was that there was no requirement for reasonable suspicion and it was treated as a random power to stop and search. I had not heard before this evening that my noble friend Lady Hamwee had been stopped and searched. I recall the noble Lord, Lord West, revealing that he had been stopped and searched, and he told me colourfully of the incident.

The passing of Section 44, and the Government’s speedy action in preventing its use, has been welcome, but there was always a gap to be filled as a result. There are going to be events—the Olympic Games are an obvious example but there may be many others—in which there will be reasonably robust intelligence that gives rise to a reasonable suspicion that a terrorism act will take place. It is important to allow the police to protect the public at such events by giving them a power to stop and search. It is not a random power and it is not expressed in this order as a random power. I agree with my noble friend that it is desirable that police officers who find this kind of power quite difficult to exercise, particularly if they have come from a different part of the country to carry out crowd control duty, should have as much guidance and as good briefings as possible before they are placed on duty with this power in their hands.

I have some experience of the reviewing of the authorisations which, as the Minister reminded us, used to be for 28 days under Section 44 in geographical areas. During my time as independent reviewer a new look was taken at these authorisations, and greater demands were rightly placed on chief officers to ensure that the authorisations were not simply pro formas but that reasons were given. I hope that the same sort of discipline will apply to authorisations following approval of this order.

I know that the civil servants in the Office for Security and Counter-Terrorism who scrutinise the applications now have a great deal of experience, which they apply very well in that scrutiny. I therefore believe that as a result of this order we have replaced Section 44 with something that is better, necessary and properly limited in scope.

Police Federation

Baroness Hamwee Excerpts

Thursday 15th September 2011 Lords Chamber

[Baroness Browning]

My Lords, the nature of those proposals are such that, in order to give a definitive answer to the noble Lord, I will have to write to him. I will want to take careful advice as to what opportunities were given for discussion or written consultation. The noble Lord is shaking his head. I think that he would prefer a definitive answer in writing than for me to wing something at the Dispatch Box.

[Baroness Hamwee]

The topic of pensions for the police must obviously be on the mind of the Police Federation as well as on all our minds. Does the Minister have any news on tackling that issue? But thinking about retirement on a more personal basis and satisfaction for people who want to extend their working lives, is there anything that she can say about the retirement age of police officers and about making use of their experience and the investment that has been made in them for the good of the forces and of society, not losing them at a relatively early age?

[Baroness Browning]

I can tell my noble friend that public service pension schemes are consulting formally on the proposal, for example, to increase employee contribution rates. The consultation for the police pension scheme is happening within the Police Negotiating Board. The Home Secretary wrote to the Police Negotiating Board on 29 July and has asked for views on its proposal by the end of September.

Police: Funding

Baroness Hamwee Excerpts

Wednesday 14th September 2011 Lords Chamber

[Baroness Browning]

My Lords, not only do we care, but we have every respect for the work done by police forces every day. However, it is time to look at how the police are deployed in these times of austerity—the very title of Her Majesty’s Inspectorate’s report. We have to challenge, as senior police officers are doing up and down the country, the way forces are deployed. For example, we see in the recent report that, astonishingly, there are more front-line police officers on duty on a Monday morning than on a Friday night. Surely that has to be challenged. Surely there are ways better to deploy forces to protect the public and the front line, and to ensure that we maintain the important reputation that the noble Lord is so familiar with.

[Baroness Hamwee]

Is the Minister confident that enough funding is available for up-to-date technology? Used well, technology can achieve savings and greater productivity.

[Baroness Browning]

My noble friend is absolutely right. Indeed, it is very encouraging to see the way in which forces are using technology, and combining across force borders, by mutual agreement, to share in it to improve the way they serve the public.

Police Reform and Social Responsibility Bill

Baroness Hamwee Excerpts

Wednesday 14th September 2011 Lords Chamber

[Baroness Hamwee]

My Lords, begging the pardon of the noble Lord, Lord Ramsbotham, for the term that I am about to use, I do not think that the choice today is “reform or no reform”. I use that term in the current context; I understand the point that the noble Lord makes. Nor even is it a choice between alternative models of reform, to which I shall come back in a moment.

Given both a free hand and the benefit of the expertise on this subject around this House, which has impressed me increasingly day by day, I do not pretend that I would have designed the model that we have in the Bill, but I have always said that the proposal for directly elected police and crime commissioners is in the coalition’s programme for government, subject to strict checks and balances. Although the Whips may not agree, the scrutiny which this House gave to the checks and balances is what the House is here for. The outcomes of those debates were not always as I would have wished—I argued for several tougher checks and balances, although I acknowledge now, which I did not at the time, that some would have undermined the direct accountability of the police and crime commissioners. But now we know what the elected House wishes, and we know what is before us.

My noble and, if I may say so, good friend Lady Harris of Richmond has pursued her amendment with terrier-like energy. I am sadder than I can say that I cannot support her today, and that is not because I disagree with so many of her arguments. It is an inevitable outcome of our procedures and the way in which we undertake our business that her model is insufficiently developed. That is not her fault. After the surprise vote, she and other noble Lords put enormous effort and ingenuity into consequential amendments—if I may use that term in the widest sense. They were not successful and therefore my noble friend’s model is left without the infrastructure within the Bill that would make it work. That is what I mean by not having a choice of models today.

With regard to the amendment in the name of the noble Lord, Lord Condon, as has been said, at the root of many of the concerns that have been expressed is the possible politicisation of policing. We do not know whether independent candidates will be tempted to stand for the position. It is hardly possible that under my noble friend Lady Harris’s model independents could stand, because almost the whole of the panel from which she is proposing that a commissioner should come would have been elected on a party-political basis as local councillors would make up that panel.

We do know that the more different sets of elections are aligned, the more the focus on each is distorted, often to the basis of the lowest common denominator. There may be mayoral elections in November 2013, but they would be fairly limited geographically, so that date at least reduces that risk, if I can put it that way. I am thinking now not just of the elections for police and crime commissioners but about the local elections that will take place in May—pretty much every May.

[Lord Hunt of Kings Heath]

My Lords, the noble Baroness is making an interesting speech, but if the case is so persuasive for having separate elections—separate from any other elections—why do we not have a proposal to always have these in November?

[Baroness Hamwee]

I will come to that if the noble Lord can contain his patience.

Local elections should be about local issues and very often they are not. What I wrote down without having to be prompted by the noble Lord is that the first elections for anything tend to set the tone. There could be a debate about having elections every four or six months for different things throughout the year, although that might be going a little far.

This debate has referred quite a lot to the convenience of campaigners. I am sure that many noble Lords have gritted their teeth and hung their canvass sheets on radiators to dry throughout the year. The convenience of campaigners is the least of the factors in this. But decoupling the elections should help avoid the diversion.

[Lord Clinton-Davis]

The noble Baroness said that the first elections in November will set the tone. Why and how?

--- Later in debate ---

[Baroness Hamwee]

I thought that I had actually explained about decoupling them and I do not want to try the patience of the House by going over the whole thing again. Separate issues have been raised. We would have the same problem with May 2013 because there are county elections then. Other arguments have been made about November and I am not necessarily following them. This is a very particular argument.

I remain intensely concerned that candidates may stand on a simplistic platform of an officer on every street corner. I do not know whether that was in my noble friend's manifesto. It was a very telling manifesto. She left out of her critique of it that probably every crime has a victim: there is no victimless crime.

The issue of additional cost has been raised. To put it at its bluntest, we could probably wipe out the national deficit if we wiped out democracy.

It is a great pity that the opportunity has not been taken to defer the rearrangement in London to beyond the Olympics, because that will be a diversion.

With regard to the proposal for postponement until after a royal commission, there is of course a need for a continuing debate; but however straight the noble Lord’s face is—and he is very good at keeping a straight face—we all know how disingenuous this is. I have been among those who have used an argument for a review when it is really a euphemism for delay, which amounts to opposition. I agree with him of course on pre-legislative scrutiny, but we are rather beyond that on this Bill sadly.

Finally, with regard to amendments from the noble Lord, Lord Harris of Haringey, he knows that I have agreed with an enormous amount of what he has said about propriety and governance throughout the debates on this Bill. I am not sure whether four non-executive members is the right number or not; I am sure that I agree with him that it is those individuals who need that support who may be the least likely to want it. He talks in this amendment of a code of practice requiring something more than can be contained in his amendment. I trust—and I hope the Minister can respond to this—that the Government will consult on the code, and not just lay it before Parliament in its finished form. I think that the noble Lord has raised important points, but they have not quite worked in this form. We are at a point when we have to take a decision on what is before us, not something as we would like it to be.

I have to say to the House that I really did not expect to find myself in this position today. I have resisted so many blandishments for so long; but, as I said to my own party group about three hours ago, I persuaded myself overnight, given what we have before us to determine today. The basis of the decision, and the underlying proposals, may not be ones that I am hugely enthusiastic about, but we have to take a decision on what is before us today, and I can now see what my decision needs to be.

[Lord Goldsmith]

Before the noble Baroness sits down, I wonder if she can help me. I am somewhat confused by what she has said. I had understood from many of her remarks that she was very sympathetic to the points made by her noble friend Lady Harris of Richmond and that she found force in them, but ultimately was not happy because, in the end, not enough people supported other amendments proposed by the noble Baroness to make her proposal workable. We all know and respect the noble Baroness, Lady Harris of Richmond, very much indeed, and she has huge experience. She has described this Bill as defective and dangerous, and something which will cause lasting damage to our policing. Does the noble Baroness, Lady Hamwee, agree with that assessment, and if so, what does she propose that we do about it?

[Baroness Hamwee]

My Lords, I hoped that I had made clear that it would not be to the benefit of our communities to seek to pass legislation today which does not have what I described as the “supporting infrastructure”. The debate will not finish today. Of course, hugely important points have arisen in minds which might not have addressed them at all until the August disturbances. Those debates have got to continue. I wish I thought that legislation was the answer to everything. I am afraid that I do not. It is the way it is done, and the way that we all conduct ourselves, that matters—the way in which this legislation is implemented, not just the words on paper. I have criticised every Government who I have had anything to do with since I have been in this House for thinking and saying that the latest Bill was going to be the panacea.

Police Reform and Social Responsibility Bill

Baroness Hamwee Excerpts

Wednesday 20th July 2011 Lords Chamber

[Baroness Harris of Richmond]

My Lords, as the instigator of that infamous amendment right at the beginning of the Committee stage, I welcome what my noble friend Lord Cormack has said. I want only to make the briefest of interventions on Amendment 3, to which I have added my name. My noble friend is absolutely right to say that more work needs to be done on this Bill in the light of what has happened recently. I urge my noble friend the Minister, having given us some comfort in her amendments today, to take a further step.

I will have a little more to say about recent events and their relevance to this Bill when speaking to a later amendment, but I want to support this amendment for the reasons set out by the noble Lord, Lord Hunt of Kings Heath. What we seek is to draw out the strength of the panels so that they are able to send a strong message to the public. That is what we want.

[Baroness Hamwee]

My Lords, does my noble friend agree that her amendment, which I certainly would not describe as infamous, was the result of concern in the House that the model being proposed did not contain the strict checks and balances that most of us wish to see? Therefore, picking up the concern of the noble Lord, Lord Harris of Haringey, it would be entirely proper for the Government to come back on ping-pong with proposals reflecting, beyond Clause 1, the strict checks and balances which led to the original amendment.

[Baroness Harris of Richmond]

I support my noble friend in her comments. The whole point of tabling the amendment was to try to persuade the Government to bring on the strength of the checks and balances. That has not been done, and I cannot imagine what they could come up with at the ping-pong stage. But I hope they do come up with something because it is the strength of those checks and balances that this House, which voted so strongly in favour of my amendment, supported. I therefore urge my noble friend the Minister to see what she can do.

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[Baroness Browning]

My Lords, there is absolutely no guarantee that PCCs will necessarily be party politicians—although they can be, of course. I think that it would be welcome on all sides of the House to get the best person for the job regardless of party. That is what people have usually looked for in jobs such as this across the public sector. Many people in this House will have had very responsible jobs in public office and I hope that no one in this House would suggest that the only reason why they held those jobs was their party political allegiances. I have to say that this also applies to Members of Parliament—yes, there is a lot of party political cut and thrust, but I hope that all colleagues in this House who have formerly been Members of Parliament would agree with me that once you are elected you represent everyone in your constituency. As a Member of Parliament—apart from when you are actually at the other end of the corridor, and I see a few noble Lords nodding—once the election is over, you put party politics to one side in order to take on your responsibilities for a whole constituency. That applies across the public sector when people are elected or appointed to a post. I would hope that, regardless of party politics, people will step up to the plate to take on a public office of this level of importance.

I turn now to the opposition amendments. Amendment 3, tabled by the noble Lord, Lord Hunt, seeks to alter the government amendment providing for the panel to exercise its functions in support of the commissioner. Instead, it would give the panel a more direct role in the performance of the force. The Government listened to the concerns of noble Lords across the House in Committee and in meetings which I held outside the Chamber about the panel not doing battle with the commissioner and about the panel having a supportive role in addition to the role set out in the Bill. At Report we tabled an amendment to that effect. I am very grateful to the noble Lord, Lord Dear, for speaking to this group of amendments and reminding the House of the oath that constables take, which is at the forefront of their minds. That was so well explained—far better than I could have done—and I am grateful to him.

The Government’s amendment sends out a clear message that we expect the relationship between the PCP and the commissioner to be one in which both parties work towards the mutual aim of providing the best service to the public. The amendment tabled by the noble Lord, Lord Hunt of Kings Heath, and the noble Lord, Lord Ramsbotham—who also spoke to it—would substitute the Government’s provision with one where the panel is responsible directly for the performance of the police force. As already discussed during our debates, the Government’s model provides for direct accountability from the chief constable to the police and crime commissioner for the performance of the force. The commissioner is then, in turn, directly accountable to the public. To give the panel the role that noble Lords suggest would confuse these clear lines of accountability.

[Baroness Hamwee]

My Lords, perhaps I may ask the Minister a question on that before she moves on. It may be another way of putting the point that the noble Lord, Lord Dear, has made. I absolutely take the point about the deletion of the words,

“supporting the … exercise of the functions of the police and crime commissioner”.

That is something that I was concerned about myself. Can the Minister tell the House how we can read into the Bill the points about integrity, impartiality and so on which are clearly exercising the House? If they are not expressed in the Bill they may well be implied, either through the implied reference to the oath or through some other mechanism. Perhaps at the end of her speech she will be able to assist us on how we can understand that.

[Baroness Browning]

I am grateful to my noble friend because I was about to turn to the amendment that she and my noble friend Lord Shipley tabled.

The intention of Amendment 13 is for panels to include specific provision in their arrangements for substitutes or deputies where a panel member cannot attend proceedings, and provision for the quorum for a meeting of the panel. This was an issue discussed during Report stage. Your Lordships will recall that during that debate I stated that provision for substitutes or deputies for the panel's vote on the precept and the appointment of the chief constable could be included in the regulations dealing with those specific procedures. We will consider using these powers with partners should we feel that they are necessary, but we start from the position—and I hope that noble Lords will agree—that the authorities around the PCP table are responsible bodies that will take their statutory duties seriously and ensure that their rules and procedures more broadly cover this ground.

As to the veto, we have the power to intervene and regulate on this should we feel it necessary. There is also general provision in the Bill for panels to make their own rules of procedure, including rules on the method of making decisions. That is the mechanism for panels to make their own rules on matters such as a quorum. We start from that point but, none the less, I am happy to say to noble Lords that we will look at this in regulations if it is felt that changes are needed.

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[Lord Harris of Haringey]

My Lords, a few minutes ago, the noble Baroness talked about the current system in London not working. By implication, she was suggesting that if the Bill were to pass, the arrangements for the accountability and governance of the police would be stronger in London than they are at the moment. However, in practice, the Government are weakening the arrangements in London. They are providing the Mayor and the MOPC with fewer powers in terms of control and governance over the police service in London, which I assume is not the Government's intention. The purpose of my modest amendment is to require that the MOPC is given the opportunity to interview candidates for appointment as a commander, deputy assistant commissioner or assistant commissioner of the Metropolitan Police. It does not take the final decision away from the Commissioner of Police of the Metropolis; it leaves it there.

On Report, I made my view clear that in an ideal world there should be a joint recommendation on the appointment of the Commissioner and Deputy Commissioner of Police of the Metropolis from the mayor and from the Home Secretary. It would continue to be a royal appointment, a fact that the Government and those former Commissioners of the Metropolitan Police to whom I have spoken feel is important. However, this amendment does not change that. What it does do is to give a significant, though not a decisive, role on appointments slightly below that level, down to the level of commander of the Metropolitan Police, to the MOPC. It would give an opportunity to advise on the basis of having seen the candidates concerned and for that advice then to be considered by the Commissioner of Police of the Metropolis before a final appointment is made and before the final consultation processes take place.

I am aware that the mayor’s office in London has made very strong representations to the Government. Indeed, as recently as earlier this week—I believe on Monday—the chair of the MPA and London’s deputy mayor for policing wrote to Theresa May, the Home Secretary, with a copy to the Prime Minister in which he reiterated the concerns of the mayor’s office in London:

“The Mayor and I have deep concerns regarding the proposed future lack of MOPC involvement in MPS officer appointments, and conduct matters in addition, according to the Police Reform and Social Responsibility Act. The Bill will remove the role of the governing body in appointment of all ACPO officers”.

That is as clear a statement as you can find that the new arrangements being proposed by the Government will reduce the mechanisms by which the mayor’s office in London holds the police service accountable. The statement continues:

“As I have communicated to you previously, the Mayor and I feel strongly”.

The Government are saying that in London there will be fewer levers, fewer controls and fewer powers for the system that governs the Metropolitan Police. This is at a time when the Government tell us that they want to strengthen those accountability mechanisms. This is at a time when the Government tell us that the current arrangements are not working in London and by implication they ought to be strengthened. This is a time, incidentally, when there is a Conservative Mayor of London. You would have thought that the Government would have the utmost confidence in that person’s ability to take on those functions in an appropriate way; but no. What the Government are doing is taking away even those very limited powers that currently exist and giving them to the Commissioner of Police of the Metropolis.

I find the approach that is being taken here quite extraordinary. In quieter times, before the events of the last few weeks, the arrangements in London, where there is a directly elected mayor for the whole city, were being held up to us as being the beacon that was guiding this entire piece of legislation; yet now we are being told that those arrangements are inadequate. However, instead of the arrangements and the responsibilities of the mayor’s office being strengthened, they are being weakened by this Bill.

On Report, I challenged the Minister to give me one instance in this Bill where the new structures will have more responsibility than the current structures have over the Metropolitan Police; I received no answer. The reason I received no answer is because there are no such instances. This Bill weakens the governance arrangements in London.

I think we understand, given the national responsibilities currently held by the Metropolitan Police, why the Home Office has to be involved in the appointment of the Commissioner of Police of the Metropolis. I think we understand the historic reasons why it is important that that appointment be a royal one, but in circumstances where every other elected police and crime commissioner will have at least the power of appointment of the chief officer of police—assuming that the Government restore that measure to the Bill, as the noble Lord, Lord Cormack, hinted that they might consider doing. However, in London, even though an assistant commissioner has the equivalent rank to a chief constable outside London, the mayor’s office will have no involvement other than the right to be consulted. I suggest that this is a diminution of the powers which is extremely unfortunate.

I know that one reason the Government have taken this stance is the desire of the outgoing Commissioner of Police of the Metropolis that he should have control over all appointments of his senior team. No one is suggesting that the Commissioner of Police of the Metropolis should not be able to decide how he wants deploy his senior team, but I question whether it is sensible that those appointments are made simply by that one individual in these circumstances.

During my time on the Metropolitan Police Authority, for four years I chaired every appointments panel for officers above the rank of chief superintendent. In the subsequent seven years, I sat on virtually all the appointments panels for deputy assistant commissioners and above. There have been one or two instances of disagreements between the Commissioner of Police of the Metropolis and the appointments panel of the Metropolitan Police Authority. Usually the Metropolitan Police Authority panel has deferred to the preferences expressed, if they have been expressed clearly, by the Commissioner of Police of the Metropolis or his representatives. In a number of instances—it is probably inappropriate for me to give any details—that decision has been against the better judgment of the panel of the Metropolitan Police Authority. In those instances, that better judgment has proved to be right and the strongly held view expressed by the Commissioner of Police of the Metropolis was in fact wrong. Therefore, I do not think it is sensible to have an arrangement whereby you are preventing or not requiring the MOPC to have a direct involvement and to have at least the opportunity to interview the candidates so that there can be a dialogue or a consultation with the Commissioner of Police of the Metropolis on the basis of detailed information about the strengths and weaknesses of various candidates. I do not think it is sensible even in the terms of what the Government are doing in trying to have a transparent system where the elected representative of the people is seen to be having a decisive role in the governance of policing. I think the way in which the Bill is drafted is a mistake. Unless it is rectified at this stage, I suspect that we will rue the consequences in the future. I beg to move.

[Baroness Hamwee]

My Lords, the noble Lord, Lord Harris of Haringey, described his amendment as modest. I have often heard him describe his amendments as modest, although I have not necessarily agreed with him. However, this amendment is about no more than making recommendations. If the Minister is minded to resist, can she explain to the House how that squares with the amendment that we have just made to the Bill about supporting the effective exercise of the functions?

--- Later in debate ---

[Baroness Browning]

My Lords, Amendments 5, 6 and 7 change the powers of the Secretary of State to make secondary legislation in relation to elections. The Bill, as currently drafted, allows provision to be made about the registration of political parties, candidates’ spending limits and spending limits for political parties. Amendments 5 and 6 amend those powers to ensure that the Secretary of State can make provision about all these matters, but can also make provision, as in the case of other elections, in relation to other or third parties who may incur expenditure campaigning for or against a specific candidate or more widely.

Your Lordships will recall that my noble friend Lady Hamwee brought forward amendments in this area on Report, which I committed to consider. I am grateful to my noble friend for raising these important points. Secondary legislation to be made under Clause 59 would have already restricted what candidates and political parties could spend in those elections. Noble Lords will appreciate that the spending of organisations that campaign during elections, but that are not themselves fielding candidates, can greatly affect the result of a poll, even if they are not explicitly supporting a specific candidate. It is important that we are clear that the Bill will allow for that. It is usual in elections for such spend to be regulated and PCP elections should not be an exception. The amendments are necessary to ensure that the powers of the Secretary of State are sufficient to achieve that regulation. I hope that my noble friend Lady Hamwee will agree that they achieve the same end as her amendments on Report. I beg to move.

[Baroness Hamwee]

I am grateful to my noble friend, and I think we should all be grateful to the Electoral Commission, for taking such an eagle-eyed interest in and concern for the Bill. I am perfectly happy to accept that parliamentary counsel’s drafting achieves ends that I could only describe in a narrative kind of way.

Amendment 5 agreed.

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[Baroness Harris of Richmond]

My Lords, I want to say a few words in support of this amendment. I find it completely incomprehensible that anyone would think that it was acceptable to put a politically restricted person in charge of making political decisions, which is the effect of the current proposals relating to deputy and acting PCCs in this Bill. Quite apart from the fact that this would give such a person an impossible technical conundrum to resolve—because a politically restricted person must be politically neutral, and therefore cannot by definition make political decisions—it completely undermines the Government’s own arguments about greater public accountability. It is particularly important that an acting PCC must be able to make decisions as if he or she were the PCC. This includes the key decision about what precept to set if the PCC is absent at that particular time of the year. The PCC’s office cannot not make a decision about this, whether or not the PCC is present, because the police service would be missing up to half its funding the following year if this was so. Not for the first time, I have thought that we were creating an Alice in Wonderland world in this Bill—it is all somehow upside-down.

It is clear to me that an acting PCC cannot be politically restricted. That means that an acting PCC cannot be drawn from the members of the PCC’s staff—which bizarrely now include the deputy PCC, although that is another issue. The obvious place to look is therefore among the members of the police and crime panel, and particularly among the elected members of the panel, if we are serious about a commitment to democracy and accountability. This is exactly what the amendment of the noble Lord, Lord Hunt, stipulates, and I am very happy to support it.

[Baroness Hamwee]

My Lords, at the last stage, both the noble Lord, Lord Boswell of Aynho, and I made rather impromptu suggestions about other possibilities which the Government might look at. Mine was that the commissioner should make the choice, because it seemed to me that there would be a logic in that. I hope that the noble Baroness, who sounded very open to the different possibilities, might be able to respond to the menu that was suggested last time. However, I retain my concern about it being proper that the person who acts up is a person who has been elected. I do not think that the fact that the appointment is made by the panel meets the concerns; it is the object of the appointment that I am concerned about. Indeed, there is almost an irony in suggesting that the appointment is made by the panel—the elected people—as the logic of the Government’s model is that the commissioner is an elected person. I hope that the Minister can help find a way through this.

[Baroness Browning]

My Lords, this amendment, as with similar amendments at Report stage, seeks to secure the appointment of an acting PCC from the police and crime panel rather than the PCC staff. I want to make it clear that the Government accept that this is a important area and one that we must get right. I am aware that the Opposition disagree with the Government’s proposals, but I continue to believe that the alternative put forward is not the answer. Our objective is simple—we agree that the acting PCC must be underpinned by a mandate from the people to act. The point is that, true to democratic principles, this mandate must be what the people have voted for in that force area. The opposition amendment would replace one elected mandate—the legitimate one that brought the PCC into power—with another that may be completely different and at odds with that of the PCC.

I accept that a member of the PCC staff does not have a direct mandate. They are there to help deliver the PCC’s police and crime plan. We have ensured that they cannot amend this while doing their caretaker role—this will ensure that the mandate of the PCC and the public’s will is maintained. Maintaining the PCC mandate intact is important—delivering on an elected mandate is what democracy is all about, and there are also practical implications. As I have pointed out at previous stages in the Bill, we do not want another local politician, with possibly a different agenda, to take the reins and take the police force in a different direction. We believe that this is not a good proposal. There is a fundamental difference in our approach to this—we see the acting PCC role as a caretaker role and nothing else; it seems that the Opposition see the acting PCC as more than this. Given the direct mandate of the PCC and the fact that the acting PCC should be a temporary measure, I cannot agree. We cannot hand the office of PCC to somebody who will likely seek to take the force in a different direction without a mandate.

This was debated on Report, when the noble Lord, Lord Harris of Haringey, in particular made the point that there are no other examples of an unelected person setting a precept. It is important to note here that the acting PCC is hardly acting completely unchecked. First, the PCP has a veto in this area; and, ultimately, should the precept remain excessive, it will be subject to a referendum.

I will finish on how this is all likely to work in practice—after all, this is what matters. As noble Lords know, the Government introduced an amendment to allow PCCs to establish deputies. In reality, we envisage that the PCP will appoint the deputy as the acting PCC. Given the debate thus far on the need to ensure the PCC has sufficient powers, noble Lords will see that we have left it to the PCP to decide which members of the PCC staff should be appointed in the circumstances and at that time. I believe that this satisfies the democratic need in this area and I ask that the amendment is withdrawn.

Metropolitan Police Service

Baroness Hamwee Excerpts

Monday 18th July 2011 Lords Chamber

[Baroness Hamwee]

The House will understand that the Minister cannot say anything other than what she just has about the Third Reading of the police Bill. However, in reflecting on it, as I am sure they will, will the Government reconsider the proposed timing of the introduction of their changes, particularly in London where we have these new unexpected factors in the run-up to the Olympics?

On a more detailed point, does the Minister agree that a mechanism for registering interests and hospitality that is available for inspection by everyone in public life, without investigation by the media, is of great importance? The House will understand the irony of relying on the media in this. What really matters is not what you register but what you do.

[Baroness Browning]

I quite agree with the principle that my noble friend Lady Hamwee has just espoused. Certainly, the investigations, and the recommendations that will come from them, will, I hope, show us the best way forward for things such as hospitality. Very often, these things come down to personal judgment. All of us in public life have to make a personal judgment about some of these issues, and sometimes we are bound by the spirit of the law as well as what is said in the law. I therefore hope that when we see the final results of the investigations, they will include codes and practices that encapsulate the spirit of the law as well as the law itself.

Police Reform and Social Responsibility Bill

Baroness Hamwee Excerpts

Thursday 14th July 2011 Lords Chamber

[Baroness Hamwee]

I hope that I can reassure the House. In discussions with my noble friend, neither of us realised that we would reach this group quite so soon. My noble friend should be able to be here until well after we have got through this group—unless she is going to take an hour and a half, in which case there will be other problems.

[Baroness Doocey]

I apologise to the House if I have got it wrong yet again and I thank my noble friend Lady Hamwee. My amendment relates to the handling of complaints against senior police officers in London. The Bill proposes that responsibility for complaints against senior ACPO officers—that is, officers below the rank of deputy commissioner—should be moved from the Metropolitan Police Authority to the Metropolitan Police Commissioner. My concern is not that this would make the commissioner responsible for employing, promoting and disciplining officers—I do not have a major problem with that—but that it would also make him responsible for sackings and, crucially, for hearing appeals against his own rulings. It would remove all the elements of independence and transparency that the Metropolitan Police Authority currently provides and would in effect make the commissioner judge, jury and executioner.

The proposals are deeply flawed because they concentrate too much power in the hands of the commissioner without any proper checks and balances. There is also no effective framework to safeguard impartiality. I am aware of the Government's response to the argument. They argue that it is commonplace for complaints to be decided within an organisation rather than by an external arbiter. However, this fails to appreciate that police officers are in a unique position. They are officers of the Crown who have the power to detain members of the public and to take away their freedom through arrest. Consequently, there is no valid analogy with how other organisations—even the Armed Forces—deal with complaints, conduct, dismissals and appeals. It is in the interest of the police that they should be able to demonstrate an independent element in the assessment of the seriousness and reputational risks of allegations made against their most senior ranks. The Bill envisages allowing appeals to the IPCC, but only at the end of the process. That is no substitute for an independent review of whether standards of conduct may have fallen below those that the outside world would recognise as proper.

Lack of independence also creates another problem. A very likely consequence of the new system is an increase in the number of complaints against the commissioner for failing properly to investigate complaints against ACPO officers under his command. If those making complaints against a senior officer feel that the issue has not been properly or sufficiently well dealt with in the first instance, they will almost certainly lodge a complaint against the chief officer. The whole rigmarole in turn creates an increased possibility of legal challenge.

I believe there is a more fundamental problem. In any closed institution, such as the police, it is common for custom and practice to become entrenched. An independent element is vital to provide a counterbalance and to ensure due process. It is worth considering the virtues of the current system for handling complaints. At present the Metropolitan Police Authority hears complaints through its professional standards cases sub-committee and there is a right of appeal to the Police Appeals Tribunal. This current system is not an accident of history. It evolved to address concerns about the perceived lack of independence and accountability in how complaints and conduct matters had been handled previously. Are we really confident that policing has matured sufficiently to deal with these concerns? The Government seem to be ignoring the lessons of the past and are therefore likely to repeat the errors of the past.

Since the Bill abolishes the Metropolitan Police Authority, the purpose of my amendment is to restore equivalent safeguards to the new arrangements. The amendment would, within London, make the Mayor’s Office for Policing and Crime the relevant appeals body. It is also essential that the Mayor’s Office for Policing and Crime has statutory access to all information and systems where complaints are recorded. Without this, the Mayor’s Office for Policing and Crime will be totally reliant on the commissioner advising it of complaint or conduct matters. It would also be unable to discharge the functions proposed in the Bill to ensure that chief constables have fulfilled their duty in the handling of such complaints. The Government’s proposals do no favours to the PCC. They expose him or her to accusations—unjustified, one would hope—of conflict of interest, bias and favouritism. This amendment would avoid these pitfalls without in any way affecting the proper authority of the PCC and the correct limits to his or her discretion. I therefore commend this amendment as a means of preserving the necessary elements of independence, transparency and impartiality. I beg to move.

--- Later in debate ---

However, on the basis that the Government will nevertheless proceed with the change of test, the Minister promised in Committee revised statutory guidance on the interpretation of “appropriate”. Will there be consultation on the contents of that guidance? If we are to change completely the basis on which conditions are assessed, that is absolutely crucial. There is still great uncertainty surrounding the changes sought by the Government, and I look forward to the Minister’s reply. I beg to move.

[Baroness Hamwee]

My Lords, I joined in the debate on these two terms at the previous stage, and on rereading Hansard I wonder now even more than I did at the time how assessing whether something is appropriate could be evidence-based. If I were still a councillor having to decide whether a condition is appropriate, I do not think I could avoid it being a subjective judgment. My noble friend has referred to this. I also asked at the last stage whether the assessment had to be reasonable. If it is “appropriate” rather than “necessary”, I assume that it would have to be, but the Minister very elegantly sidestepped that question. I do not blame her because I had not given her notice of it.

My final point refers to the statutory guidance, again just mentioned by my noble friend. We are not talking about a particular application, but licensing in general is a quasi-judicial activity. Perhaps this is not strictly quasi-judicial, but it comes quite close to it. I am concerned about the need to rely on guidance as distinct from primary legislation in the way this is approached.

[Lord Brooke of Sutton Mandeville]

My Lords, my noble friend Lord Clement-Jones and the Minister will recall that I spoke on this matter in Committee. I have no intention of running the risk of prolonging the debate by repeating what I said on that occasion, but nothing that has happened since the previous stage alters in any way the views I then expressed. The only thing I would say in a wholly friendly manner to my noble friend Lord Clement-Jones is that I used the human rights argument on a series of occasions during our debates on the Licensing Bill in 2003. I have to say, in a manner which I hope he will not find too discouraging, that on every single occasion the Front Bench of the then Government shut me up and told me that I did not actually have a case to argue.

--- Later in debate ---

[Lord Stevenson of Balmacara]

My Lords, we discussed this matter in Committee and we want to probe further whether the Government have moved in their thinking. We welcome the Government’s move through Clause 123 to allow licensing authorities the ability to set fees locally on the basis of full cost recovery. Operating the licence system since 2005 has cost council tax payers over £100 million more than they anticipated due to the current, centrally set fee structure, which does not allow licensing authorities to set cost-neutral local charges. Given the economic climate, there is a real imperative to allow cost-neutral fees to be set as soon as possible. However, as we discussed last time, there is a drafting error within Clause 123, which would mean two-tier authorities not being able fully to recover all the costs associated with licensing. This was debated in Committee. When the Minister replied, he acknowledged that, as drafted, the Bill would exclude the relevant costs of trading standards and social services departments and that, even though they were discharging duties under the Licensing Act, they would not be able to recover them. He concluded by saying:

“I see sense in the intention of [the amendment] and, if I may, I shall reflect on it further”.—[Official Report, 16/6/11; col. 911.]

The purpose of the amendment is to press the Government for their response on this issue. I hope that they have some good news for us.

[Baroness Hamwee]

I support the amendment. I reacted rather to the suggestion that what is a marginal cost is therefore almost irrelevant in the case of the authorities affected. I, too, look forward to hearing the outcome of the reflection.

[Lord De Mauley]

My Lords, as the noble Lord, Lord Stevenson, has explained, Amendment 305ZB seeks to ensure that the costs of social services and trading standards, in their role as “responsible authorities” only, can be covered by fees when they are located outside the licensing authority as well as within it. I certainly acknowledge that I said in Committee that I would reflect further on the proposal. I have done so very carefully and taken legal advice. Having examined it, I have found that the practical difficulties unfortunately outweigh the benefits.

The role of responsible authority involves, for example, considering applications and, in rare cases, applying for review. The costs arising will be very marginal—I am sorry that my noble friend Lady Hamwee objects to the use of that wording—in the context of overall fee income and the wider functions of these bodies. To set fees locally, each licensing authority will be required to calculate its own costs. We would not wish to require it to calculate the costs of another body without very good reason. The amendment would also imply a duty on county councils to report fractional costs and on the licensing authority to pass the funds to the county. The cost of this would then be passed on to fee payers even if the net gain to local government was very little or even nothing. The current fees regime makes no provision for district councils to pass funding to county councils in respect of these functions and we understand that no money has been transferred.

As I said, I have considered this matter carefully. In a nutshell, I am asking noble Lords to accept that the amendment would result in substantial extra bureaucracy and costs which would be passed on to licence holders for very little benefit. I ask the noble Lord to withdraw the amendment.

[Baroness Hamwee]

My Lords, can the Minister tell the House whether these practical difficulties have been discussed with the Local Government Association, which would undoubtedly have an input into this? If not, that is a pity.

[Lord De Mauley]

My Lords, flicking rapidly through my papers, I cannot find the answer to my noble friend’s question. I shall write to her about it.

[Baroness Hamwee]

My Lords, I think that the noble Lord opposite and I would have heard if there had been a discussion. I put that rather gently but firmly.

[Lord Stevenson of Balmacara]

There was, I think, a hint of menace in what the noble Baroness was saying. She was leaning forward slightly, and it was well judged to deliver that blow.

The LGA has indeed been concerned about this issue and has circulated documents widely which address the issue and make the main points that I repeated in the discussions earlier. It has also made it clear that it is very concerned about this matter. Although the Minister said that it was a marginal cost, every pound is important to local government. It is unfortunate that the Government have said that the cost of the bureaucracy of this might outweigh its benefits when those who are responsible for delivering it say that they want it to happen.

The Government are hiding under the question of bureaucracy. They promised a very important principle—that there would be a full cost recovery basis for licensing. They have gone so far down the line but they are not prepared to go the further stage. This is a disappointing result and we would like to test the opinion of the House.

--- Later in debate ---

[Lord Brooke of Sutton Mandeville]

My Lords, I intervene extremely briefly. On the strength of my own experience in the two cities, where there is of course an enormous amount of late-night activity and in other parts of the constituency there is absolutely nothing happening at all, I would like my noble friend, to whom I was not very helpful on the last occasion, to know that on this occasion I am sympathetic to what he is saying.

[Baroness Hamwee]

My Lords, I have Amendment 306ZZA in this group. On the issue of the division of the levy between the police and the local authority, at the previous stage I attempted to reverse the proportions, as provided by the Bill. This time I am suggesting a 50-50 split. I am sure that my noble friend will understand how completely reasonable that must be.

At that stage, my noble friend told me as reassurance that the levy had,

“been designed to raise money for the police, who bear the brunt of late night enforcement costs”.—[Official Report, 16/6/11; col. 943.]

I do not doubt the costs borne by the police, but to some extent they are already taken into account in the way that their funding operates. I am concerned that the costs to local authorities, particularly as regards environmental health and some of the organisation involved in dealing with late-night activity, are not acknowledged.

I have brought this back not only to change the proportion but because of a thought that occurred to me after the previous stage. If an authority is to receive little financial benefit from the levy, it may take a decision not to impose it at all. I wonder whether the Government have considered that risk, if I may put it that way.

[Lord Rosser]

I will be brief. The noble Lord, Lord Clement-Jones, referred to what my noble friend Lord Stevenson of Balmacara said in Committee in respect of the amendments that the noble Lord has moved, in particular the support that we on these Benches gave for a more targeted application of the late-night levy. That continues to be our position.

Police Reform and Social Responsibility Bill

Baroness Hamwee Excerpts

Thursday 14th July 2011 Lords Chamber

[Lord Desai]

You must be generous and forgive mistakes now and then.

[Baroness Hamwee]

My Lords, I hope that what I am about to say does not damage the reputation of the noble Lord, Lord Desai. I, too, have argued throughout for the repeal of the SOCPA provisions and for not putting anything else in their place. I have said several times that aesthetic considerations—in other words, tidying up the square—should not be given more weight than considerations based on democracy.

I have a question for the noble Lord, Lord Marlesford, in his response to the debate. His amendments call for a committee consisting of representatives of the various bodies. The Metropolitan Police force is mentioned and clearly Westminster City Council and the Greater London Authority would be other candidates. I do not know if there are any more. In putting these amendments forward, what response has he had from those organisations—I assume he has consulted them at some stage during all of this—to the proposals that he now puts forward for a committee that will have some powers and obviously functions?

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Moved by

[Baroness Hamwee]

306C: Clause 148, page 100, line 1, leave out subsection (2) and insert—
“(2) But an order under subsection (1)(b) may not prohibit a person from entering the controlled area of Parliament Square nor restrict a person’s right lawfully to demonstrate there.”

[Baroness Hamwee]

We remain in Parliament Square, as it were. Noble Lords will be glad to know that we have now got as far as page 100 in the Bill. Instead of giving the court the power to impose a sanction on an open-ended basis following the conviction of anyone who has committed an offence under the prohibited activities in the controlled area of Parliament Square, the amendment would limit that power and provide that no order may,

“prohibit a person from entering the controlled area of Parliament Square nor restrict a person’s right lawfully to demonstrate there”.

This is a simple proposition, I hope, that was suggested to me by the organisation Justice. It is right that Parliament Square is a public place which, as we have seen, will be well controlled, or better controlled than I would like. As noble Lords are all saying, it is a place where properly organised demonstrations and expressions of opinion are entirely appropriate. It is hard to imagine why it will be necessary to prohibit entry to the square altogether. These provisions will be targeted at demonstrators and it is important to the democratic process, again as noble Lords say, that provisions aimed at preventing setting up camps, in particular, do not have the by-product of silencing protests altogether. Rather than this blanket prohibition the court should properly look at dealing with offences on an offence-by-offence basis, not making an order, which is equivalent to an injunction, for the future. It is almost more akin to convenience than a proper criminal sanction. That is what underlies my amendment.

While I am speaking, I wonder whether I can have a word about two of the government amendments in this group, Amendments 307ZA and 309ZE. The Minister will explain the application of this very old legislation—the Parks Regulation (Amendment) Act 1926. I assume that this is a device to extend certain controls relating to seizure to other areas near to Parliament. What will be given by these provisions are powers to yet another class of official—we have park constables in this legislation. Are we giving powers to unwarranted officers to make seizures? How will that regime fit in with the arrangements to be made for Parliament Square? The legislation refers to a park trading offence, and as I read the existing legislation, that will require some regulation. Perhaps that can be clarified. My concern is that we should not be adding to the confusion by a different regime. As regards Amendment 306C, I beg to move.

[Lord Dubs]

I should like to speak to Amendment 307 standing in my name. I am a member of the Joint Committee on Human Rights and we spent quite a lot of time considering this Bill. I hope that the Minister will not mind if I go public on a private conversation she and I had some little while ago. I buttonholed the Minister in the Corridor and said that I had an amendment that I was sure she would see to be so sensible that she would give it her support. She looked at me and said, “Yes, that’s what they all say”. I still believe that this is a very helpful amendment.

When we give powers to the police there should be codes of guidance under which the police would operate. There are many precedents for having such codes: I will come to them in a moment. The Bill contains complexities that the police will find it hard to work around. Reference has already been made to structures, sleeping equipment and authorisation for amplification such as loudspeakers. These will be difficult decisions for the police to make—all the more so because I think I am right in saying that one has to get authorisation 21 days in advance for using loudspeakers, but only six days in advance for holding a demo. One has to apply much earlier for the right to use loudspeakers than for the right to demonstrate at all. This is confusing, and it will be difficult for the police to implement.

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[Baroness Hamwee]

My Lords, the Minister has argued for giving the court more flexibility than I think is appropriate in the circumstances. It amounts in effect to precluding a demonstrator in advance. But clearly I am not going to be able to persuade her.

On the government amendments, I should say that I am left with a considerable feeling of unease. I asked who would exercise the powers and the Minister has explained that it would be the Royal Parks Police, so we have yet another player in the mix. But that troubles me much less than what I suspected might be the case, which is that these new provisions could extend powers to any of the Royal Parks. I have to say to my noble friend that it is a great pity—actually, it is quite troubling—that these provisions are being brought before the House under the heading, as it were, of Parliament Square when we have been talking about the environs of Parliament. We are being asked at this stage to agree changes to legislation which clearly could be far more wide-reaching geographically than most noble Lords would have assumed. I wonder whether I can invite my noble friend, either at this stage or through some device at Third Reading, to give assurances that the Government will not use these provisions more extensively than the environs of Parliament. As I say, I think that that is what noble Lords were expecting. I do not know whether she is in a position to respond, but we do have more stages to come.

[Baroness Browning]

We are on the last day of Report and I cannot commit at this stage to bring this back formally at Third Reading. However, I am happy to engage in discussions with my noble friend on the points she has raised.

[Baroness Hamwee]

I am grateful to the Minister and I certainly will want to take up that offer. I beg leave to withdraw the amendment.

Amendment 306C withdrawn.

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[Lord Rosser]

The Bill represents a major change for policing in England and Wales. Concerns have been expressed about the lack of effective checks and balances on commissioners and their unchallenged powers. Concerns have been expressed about the impact of the strategic policing requirements and the proposed national crime agency on the new arrangements. Concerns have been expressed about the impact of the relationship between the PCCs and chief constables on the latter’s operational responsibility. Concerns have been expressed about the impact of the new policing structure on relationships and working arrangements with other bodies, including local authorities. Concerns have also been expressed about the impact of the proposed new arrangements on levels of crime and the impact of the politicisation of the police, which, frankly, this Bill introduces.

The Government agree that their proposals represent a major change. Amendment 311 calls for an independent review of the policing governance arrangements and for a report to be prepared, laid before Parliament and approved by Parliament. The report must set out the objectives intended to be achieved by the new policing governance arrangements, the extent to which those objectives have been achieved, and whether they remain.

It does not seem unreasonable to call in the amendment for an assessment to be made of the impact of the new governance arrangements, what their objectives are and whether they are being achieved within the period of four years provided for in it if the provisions of the Bill are to remain in force. I hope that the Government will agree to the amendment and its provisions for an independent review of what they themselves accept is a major change for policing in England and Wales.

[Baroness Hamwee]

My Lords, I do not agree with the amendment, for the following reasons. Noble Lords will be well aware of my concerns about the Bill, so I say this with a certain force. This legislation seems no different from other legislation that is contentious. It will be on the statute book in some form or other and able to be reviewed, renewed or repealed by a later Government—indeed, by the same Government, who may have second thoughts about it. I hope that it will be reviewed, but as part of a programme of post-legislative scrutiny, which it is high time Parliament had in place. Even without that post-legislative scrutiny, we have from time to time been reminded by the Leader of the House that there is an arrangement—it seems to me to be fairly loose, but I am assured that it exists—for substantial new legislation to be reviewed by government, which I do not think is the same as Parliament, after it has been in force for three years. Of course, if we had more time, I might tease the noble Lord about why he feels that it is necessary to provide for someone else to do something in four years.

[Baroness Browning]

My Lords, Amendment 311 would mean that the police and crime commissioner provisions of the Bill cease to have effect after four years unless, following an independent review and report, the House approves an order by the Secretary of State for the arrangements to continue.

Many noble Lords have spoken in the course of these debates of the risk of disruption to the police service, and I have set out as we have gone along how that will be minimised. However, it would be extremely disruptive to the police service if, a few months before the second set of elections, the elected PCC is removed and the unelected police authority is re-established.

I hear what my noble friend Lady Hamwee says about review. I fully support the principle that legislation is reviewed. I say this having served in another place for nearly 20 years. We get very excited about legislation when we are legislating and after a year or two we forget about it. Then things transpire and we think that perhaps we should have looked at it. As a principle that is a very good thing. However, I am unable to accept Amendment 311 as it would be extremely disruptive. I ask the noble Lord to consider withdrawing it.

[Lord Rosser]

My Lords, the key phrase in the contribution of the noble Baroness, Lady Hamwee—I think I have written it down correctly—was: “I hope that it will be reviewed … as part of post-legislative scrutiny”.

[Baroness Hamwee]

I said:

“as part of a programme of post-legislative scrutiny”.

[Lord Rosser]

I think the noble Baroness is being somewhat optimistic if she believes that is necessarily going to happen.

The amendment provides for an affirmative decision by Parliament on the report that would be produced. The Minister said that it would be extremely disruptive for the police. Of course, it would also be extremely disruptive for the biggest system change in policing for years to continue if did not work or operate properly as Parliament intended. If it is working properly, no doubt the report would be received and the affirmative resolutions would be carried. If it is not working, surely it is only appropriate that it should be challenged and processes put in place to try to put it right.

However, I do not intend to pursue this matter to a vote. I have expressed my views on the response that I have received from the noble Baroness and the reason why I think the amendment is justified. I beg leave to withdraw the amendment.