Terrorism Prevention and Investigation Measures Bill

Lord Rosser Excerpts

Tuesday 1st November 2011 Lords Chamber

Moved by

[Lord Rosser]

62: Clause 31, page 21, line 35, at end insert—
“( ) This Act expires at the end of the period of one year beginning with the day on which it commences.
( ) The Secretary of State may, by order, revive the Act if a draft of such an order is laid before and approved by an affirmative resolution of both Houses of Parliament.
( ) An order made by the Minister under this section is to be made by statutory instrument.”

[Lord Rosser]

My Lords, the purpose of this amendment is to ensure that the Bill and the TPIMs that it sets up require annual renewal, as is the case with the present control order legislation. That legislation is clear in its temporary nature and it has a sunset clause, which requires an annual vote in Parliament to consider whether the powers are still required. The Bill before us makes no provision for a yearly sunset clause but provides for a five-year limit, not requiring a first vote until the end of 2016 or early 2017 if its operative provisions are to continue and not expire.

Both your Lordships’ Constitution Committee and the Joint Committee on Human Rights have queried this provision in the Bill. The Constitution Committee questioned whether it was constitutionally appropriate for the extraordinary executive powers involved in TPIMs to remain in being for a lengthy period of time. The Joint Committee on Human Rights said that it was disappointed by the Government’s reluctance to expose their proposed replacement regime for control orders to the rigours of formal and post-legislative scrutiny, which annual renewal would entail. The Joint Committee was of the view that the TPIMs regime was less severe than the control orders regime but still felt that TPIMs remain,

“an extraordinary departure from ordinary principles of criminal due process”.

The Joint Committee also noted that the UN special rapporteur on the protection of human rights and fundamental freedoms while countering terrorism, in a recent report to the UN Human Rights Council, had observed:

“Regular review and the use of sunset clauses are best practices helping to ensure that special powers relating to the countering of terrorism are effective and continue to be required, and to help avoid the ‘Normalisation’ or de facto permanent existence of extraordinary measures”.

The Joint Committee recommended that the Bill should also,

“require annual renewal and so ensure that there is an annual opportunity for Parliament to scrutinise and debate the continued necessity for such exceptional measures and the way in which they are working in practice”.

In a recent letter responding to your Lordships’ Constitution Committee, the Minister in the other place claimed that five-yearly rather than annual renewal would allow the system to operate in a stable and considered way and would allow proper and detailed consideration to take place on whether the legislation was still required. Annual renewal also allows for proper and detailed consideration, and rather more frequently than once every five years. As for the assertion that five-yearly renewal will allow the system to operate in a stable and considered way, that rather suggests that the Government see TPIMs as not far short of a permanent arrangement, despite the exceptional executive powers, including the profound impact they can have on the liberty of some individuals. That is a key reason why annual renewal is necessary—precisely to ensure that these are regarded as temporary and not permanent measures.

We agree with the Joint Committee on Human Rights. Annual renewal is required for the current control order regime because of the considerable and exceptional executive power that it confers, most of which remains in the current Bill in respect of TPIMs. In addition, we now have the draft enhanced terrorism prevention and investigation measures Bill, which could be brought into being at short notice and which provides further extraordinary executive powers.

This Bill, like the control orders legislation, covers difficult issues relating to the rule of law. It provides powers to act in cases where prosecution is not possible but where, nevertheless, security concerns about the activities of a small number of individuals are such that it is felt that executive action has to be taken, which considerably restricts liberty through control orders, or in future through TPIMs, when the Secretary of State reasonably believes that the individual is or has been involved in terrorism-related activity. Whatever one’s views on the need for control orders or TPIMs, these are considerable and exceptional measures, and for that reason alone it is surely only right and appropriate that Parliament should have the opportunity and the duty to decide each year whether or not the situation remains such that these measures and the associated powers should continue in being or, instead, be allowed to expire. It is surely not appropriate, in view of the profound impact on the liberty of individuals of these exceptional measures and powers—the Minister accepted on Second Reading that they were exceptional—that an important check by Parliament on the exercise of those executive powers, and the continuing necessity for them, should be almost eliminated by permitting Parliament that opportunity to decide whether the situation remains such that they should continue, or be allowed to expire, only once every five years. I beg to move.

[Lord Lloyd of Berwick]

My Lords, I support the amendment, but I do not hold out much hope that it will do any good. It was different six years ago when the Conservative Party, and Lord Kingsland in particular, were in favour of relaxing, rather than strengthening, the 2005 Bill. Despite that, we argued the toss on renewal every year for six years and achieved precisely nothing. Now the Official Opposition are in favour of strengthening the Bill, and I see no reason to suppose that the Government will themselves be of that view—I hope not. I, therefore, suspect that in debating this matter every year for the next five years we will largely be wasting our breath, though I support the amendment for its symbolic value.

--- Later in debate ---

[Lord Henley]

My Lords, I am grateful to all noble Lords who have spoken in this debate. I have three brief points to make, which will take me a little time, about why we do not accept the amendment moved by the noble Lord, Lord Rosser. First, we believe that renewal every five years strikes the right balance—a word I have used on many occasions; secondly, I believe that annual renewal is unnecessary, and I shall return to that in more detail; and, thirdly, there are other means by which the Bill can be amended or repealed.

First, I thank my noble friend Lord Faulks for his comments reminding the House that the provisions that face us follow a very lengthy review of all our counterterrorism provisions by the Government, with the announcements earlier in the year and consideration of this Bill, in due course, in both Houses. This is very different from what happened with the 2005 Act. We believe that renewal every five years strikes the right balance and reflects the need to build in effective safeguards to ensure that the powers do not remain in force longer than necessary. It also reflects the competence of Parliament to apply intense scrutiny to legislation and to arrive at a position when it will not need to be reviewed annually. We are moving to a position where we hope that each Parliament will last five years, so each new Parliament will have the opportunity to debate this in the context of the situation at the time and take its own view. That is in line with the length of Parliaments, as I have said, provided by the Fixed-term Parliaments Act.

Secondly, I believe that annual review is unnecessary. I listened to the noble and learned Lord, Lord Lloyd, say that he was wasting his breath. He never wastes his breath in this House. I have been here for many years and I have listened to him with great devotion on many occasions. I do not always agree with him, but he is not wasting his breath. I appreciate that the noble Lord, Lord Pannick, is more optimistic and feels that an annual debate provides a better opportunity for these things, as do the noble Baroness, Lady Hayman, the noble and learned Baroness, Lady Butler-Sloss, and the noble Baroness, Lady Kennedy, a copy of whose book Just Law—however you pronounce it—sits in my room in the Home Office to this day, and I will always have it there to be reminded about how I should go about my duties. However, I have to say that I do not agree with her, or with others, on this occasion about whether annual renewal is necessary.

The important thing is to distinguish the process we are going through on this occasion from the process we went through following the 2005 Act. This Bill will be subjected to full parliamentary scrutiny with the usual timetable—we still have not completed it in this House—allowing for a settled position to be reached. In contrast, the 2005 legislation was, as the noble Lord will remember, rushed through with very little opportunity for debate. The noble Baroness, Lady Hayman, reminded the House of her role in that. We believe that that makes annual renewal an appropriate safeguard for the 2005 Act, but one that we do not think is necessary for this Act.

My third point is that there are also other means by which the Bill can be amended or replaced. The noble Lord, Lord Rosser, stressed that these powers seem to be permanent, but I ask him to look very carefully at Clause 21(2) which states that:

“The Secretary of State may, by order made by statutory instrument … repeal the Secretary of State’s TPIM powers”.

It is unusual to give the Secretary of State the power to repeal something, but that provision allows her, if she feels they are no longer necessary, at any stage to repeal and take away the powers that she has given herself. Again, I make this point in terms of how, if it becomes clear that the powers should be changed, the legislation can be amended by Parliament at any time in the usual way.

I appreciate that many noble Lords feel that an annual debate would be preferable to one every five years. It happens on other occasions. I think there is some financial Motion that we debate once a year under EU rules following some vote in this House, and I have noticed, and I think other noble Lords will have noticed, that the number of participants in that debate seems to decline each year as time goes past, so I wonder whether a debate every year is necessary, given the fact that this Bill has been given full coverage in both Houses.

I appreciate that others may feel differently but, at this stage, I think that what we are offering and have brought forward as a concession in another place—a debate once each Parliament—is appropriate and will be sufficient, given the other safeguards in the Bill. I hope therefore that the noble Lord, Lord Rosser, will feel that on this occasion he can withdraw his amendment.

[Lord Rosser]

My Lords, I thank the Minister for his response. I also thank all noble Lords who have taken part in this debate for the contributions they have made based, I have to say, on considerably more experience and knowledge of the issues involved than I can claim to possess. Perhaps I should also congratulate the noble Baroness, Lady Hayman, on her determination on this point with the previous Government.

There is no disagreement that this amendment raises a key issue of real significance. It is about parliamentary oversight of extraordinary and exceptional executive powers which directly affect to a considerable degree the freedom and liberty of a small number of individuals whom the Secretary of State reasonably believes are or have been involved in terrorist activity. That oversight, involving human rights and civil liberties, cannot be properly exercised if done only once every five years. In reality, the Bill would be amended or dropped in the intervening years only if it were the Government, not Parliament, that wanted to change the legislation. That is surely a fact of life.

Terrorism Prevention and Investigation Measures Bill

Lord Rosser Excerpts

Wednesday 19th October 2011 Lords Chamber

[Lord Neill of Bladen]

My Lords, I wish to add my view. I entirely agree with what the noble and learned Lord, Lord Lloyd of Berwick, moved by way of an amendment. I fully support that and I also support the amendment tabled by the noble Lord, Lord Pannick. The basic question is one of justice: where should the order be made that leads to these deprivations of liberty? I have been told that you would have to be in a particular residence for a long period of hours. All those things in orders of that type are grave deprivations of privilege. Here, I agree with what the noble and right reverend Lord, Lord Eames, said based on his experience, which is borne out by the material that we are reading now as to where the public place their confidence. Perhaps not surprisingly, journalists come at the bottom. I do not know where lawyers come in but it is somewhere not very high up. Yet the judges seem to have the backing of the public as being in the safest and soundest place for judgments to be made. If those judgments involve the liberty of the subject, as I believe they do in this case, that is where we should put our money.

[Lord Rosser]

My Lords, one of the attractions of these debates is that we get not one but many legal opinions—different opinions from distinguished legal practitioners, at no charge and expressed with some force. The effect of many of these amendments is to significantly alter the Bill. One set within the group we are talking about gives the power to impose specified terrorism prevention and investigation measures on an individual to a court, rather than to the Secretary of State. It also appears to require that before such measures can be imposed, the individual concerned has to be or has been involved in terrorism-related activity, which, if that is the case, sounds a bit like shutting the prevention of terrorism door after the horse has bolted. Most people would prefer to see action taken against the small minority minded to commit acts of terrorism before they carry out the deed, rather than afterwards.

The second set of amendments we are discussing continues to give the Secretary of State a role but appears to raise the bar that has to be cleared by the Secretary of State before he or she can impose specified terrorism prevention and investigation measures. As far as the Government are concerned, the bar has already been raised under this Bill from “reasonably suspect” to “reasonably believes”. Amendment 17 raises it higher to,

“is satisfied on the balance of probabilities”,

a term with which the judicial system is more familiar and with which, no doubt, its practitioners are more at ease.

The outcome of all these amendments is quite likely to be that the number of people subject to the renamed control orders is less than it would have been under either of the thresholds—the Government’s proposed “reasonably believes” or the current legislation’s “reasonably suspect”—for the Secretary of State to cross before imposing a TPIM. That may be one, but surely only one, of the intentions of these amendments, since their authors are clearly unhappy with both the present arrangements and the amended arrangements set out in the Bill—so unhappy, indeed, that the first set of amendments largely takes the Secretary of State out of the equation.

--- Later in debate ---

[Lord Morgan]

Is my noble friend aware that the view he has expressed is totally contrary to those of such figures as Attlee and Aneurin Bevan, who were among the founders of the National Council for Civil Liberty, which discussed the rights of working men, including the right to demonstrate and the right to speak? He is taking a contrary view, which is very sad.

[Lord Rosser]

I have no doubt that the views that I am expressing are not in line with those of a great many people, but perhaps they did not have to deal with the situation that we face today—the threat of acts of terrorism. I repeat that we regard this as a ministerial decision. It should be made by a Minister responsible for national security, accountable to Parliament and the electorate, and open to challenge in the media. Such a decision is subject to scrutiny by and in the courts but it is the Secretary of State who should make the decision. The Government, not the courts, will be held accountable for the top priority of protecting the public from terrorism. Governments, not judges, pay the price for failing to protect the nation from terrorism, and people look to their Government, not the courts, to protect them from acts of terrorism.

[Lord Phillips of Sudbury]

The noble Lord has twice said that the Minister is answerable to the media. How can the Minister be answerable to the media for an order made in total secrecy?

[Lord Rosser]

I said “open to challenge in the media”; I am not sure that is the same as being accountable to the media. On this issue we continue to hold a very different view from that expressed by, among others, the noble and learned Lord, Lord Lloyd of Berwick, and my noble friend Lord Morgan.

I appreciate that one of the arguments is that the very system of control orders that we have provokes people who might otherwise have been only minded to commit acts of terrorism actually to do so. I am not aware of the evidence that supports that contention but I am aware that acts of terrorism were committed when there were no control orders in existence and that control orders, which have affected a limited number of people, seem to have been in effect during a period when we have been afforded a fair degree of protection from acts of terrorism, despite the threat level having been either severe or substantial.

I also appreciate that there are concerns over human rights. However, I understand that it is being held that control orders are compliant with the European Convention on Human Rights. As well as the rights of the individual, there are surely issues about the rights of innocent people to be protected from acts of terrorism. As the Minister said at Second Reading:

“It is clear that the current threat from terrorism remains serious and will not diminish in the foreseeable future. It is also clear that in this country there are, and will continue to be, a small number of people who pose a real and immediate terrorist threat but who cannot be successfully prosecuted or deported”.—[Official Report, 5/10/11; col. 1134.]

The current Secretary of State has been prepared to use control orders, including the relocation provision, and has received the clear backing of the courts.

We do not agree with much of this Bill, as we made clear at Second Reading. The Government have already made changes that weaken the current arrangements and risk having an adverse impact on the ability to protect the public from terrorism. We do not agree with these amendments that we are discussing, apart from the thrust of Amendments 42 and 43 tabled by the noble Lord, Lord Pannick, which is why we have given notice of our intention to oppose Clause 9. We wait to see whether the Minister will accept any or all of the amendments, which in our view water down the current arrangements even further.

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

My Lords, this is a very big group of amendments before the Committee. I thank all noble Lords for their co-operation in agreeing that we should group together such a large number of amendments. However, I am afraid this means—I start with an apology—that I will have to answer this debate at some length because it is important to deal with the various points that have been raised.

The 20th report of the Joint Committee on Human Rights came out at 11 o’clock today, as the noble Lord, Lord Goodhart, reminded us. Obviously, the Government have not had time to consider it in detail. I will respond to a number of the points because the points it makes are similar to those put forward by the noble and learned Lord, Lord Lloyd, in his amendments, which have been supported by others. However, in due course—I hope that will be before we get to Report—the Government will want to make their formal response in the usual way. At this stage I will respond in part but noble Lords will understand that we are keen to give a fuller response in due course. I will endeavour to ensure that that appears before Report but I can give no guarantee at this stage.

I simply do not accept that the TPIM regime is outside the rule of law, as the noble Lord, Lord Goodhart, suggested. This Bill and its predecessor are and have been through the parliamentary process and are subject to review by the courts. To argue that this is beyond the rule of law is unfair and excessive. This large group—

--- Later in debate ---

[Lord Rosser]

My Lords, the amendments of the noble Lord, Lord Pannick, which, as he said, are supported by the recent Joint Committee on Human Rights report, require the provision of information to the individual on whom the measures under the Bill are imposed, to enable that individual at the review hearing to give effective instructions to his or her representatives and to the special advocate about the allegations made against them.

In considering this issue, we are also considering national security. We are conscious of the need to protect people from further atrocities of the kind we have already seen in this country and elsewhere. We are talking about a small number of people whose activities are felt to pose a real threat to the public, but in respect of whom sufficient hard evidence cannot be put before a court in the public domain to enable a case to be made to the standard that has to be achieved for a successful prosecution.

We would not dissent from the provision of information to the individual, provided that it did not lead to the safety or security of any providers or sources of information being put at risk; provided that it did not mean that intelligence provided—perhaps from other countries—dried up, because that intelligence is provided only on the basis that it is not made public; and provided that the provision of the information did not jeopardise national security, including protection from acts of terrorism.

The chairman of the Joint Committee on Human Rights stated:

“We maintain our view that the priority in the Bill should be investigation and not prevention”.

We certainly support the view that investigation is important and that, where possible, people should be charged and their case dealt with through the courts in the normal way. However, we do not support the view that the Bill should have prevention of acts of terrorism as an issue of lesser importance. We will want to be satisfied that the effect of the amendments would not be to veer in that direction. We await with interest to hear the Government's position, particularly in the light of the House of Lords judgment in AF.

[Lord Henley]

My Lords, the noble Lord, Lord Pannick, asked two questions: first, do we accept that the AF principle applies to TPIMs as well as to control orders? I can give him that assurance. It is set out in our Explanatory Notes that we believe that previous court judgments will be binding on TPIMs, as they were on control orders. I do not have the ability to cite cases as authoritatively as my noble friend Lord Carlile or the noble Lord, Lord Pannick, both of whom obviously eat them for breakfast, but my understanding is that they will continue to bind us.

The second question is: do we think that it is necessary to get it on the face of the Bill? I hope that I can explain to the noble Lord why I do not think that that is necessary. We share the desire of all noble Lords to ensure that TPIM proceedings are compatible with Article 6 and we believe that the provisions currently contained in the Bill achieve that. As we explained in our response to the Joint Committee on Human Rights in its 19 July report—I think that today’s was its third report on this issue—the right to a fair trial of individuals subject to a TPIM notice is already fully protected by the provisions contained in the TPIM Bill and the application of existing case law, as appropriate, by the courts.

Paragraph 5 of Schedule 4 to the Bill reflects the read down of the Prevention of Terrorism Act 2005, effected by the 2007 judgment of the Law Lords in MB. As the noble Lord will be aware, the Law Lords read into that legislation, which obliged the courts to ensure the withholding of material from the individual where disclosure would be contrary to public interest, the words,

“except where to do so would be incompatible with the right of the controlled person to a fair trial”.

That has been reflected in the provision in paragraph 5 of Schedule 4 to the TPIM Bill, which provides that nothing in the rule-making power relating to closed proceedings or the rules of court made under it is to be read as requiring the court to act in a manner inconsistent with Article 6. The Law Lords in AF (No.3) confirmed the read down specified in MB and laid down what was required by Article 6 in the context of the stringent control orders before them. There is therefore already provision in the Bill which ensures that TPIM proceedings will be conducted compatibly with the individual’s Article 6 rights and, indeed, the Human Rights Act achieves the same effect.

That is all that I want to say at this stage to the noble Lord’s amendment. I appreciate that technically we are debating the amendment to the amendment tabled by my noble friend Lady Hamwee. It might be more appropriate for the noble Lord, Lord Pannick, to comment on that. I hope that he will accept my explanation on why we do not think it is necessary to include his amendment. I hope that the assurances that I have given from the Dispatch Box will be sufficient. I hope that my noble friend and then the noble Lord will withdraw their amendments.

Terrorism Prevention and Investigation Measures Bill

Lord Rosser Excerpts

Wednesday 5th October 2011 Lords Chamber

[Lord Rosser]

My Lords, I associate myself with the words of welcome already expressed to the noble Lord, Lord Henley, and with the words of appreciation and the expression of good wishes already expressed to the noble Baroness, Lady Browning.

This has been a passionate debate at times, with strongly held and widely differing views being expressed about the Bill. The reason why the Bill is before us is the statement in the coalition agreement that there would be a review of control orders. There is an objection in some parts of the coalition to the current control orders, and the Bill is an attempt to pretend that the coalition is making a significant change to the current arrangements. In reality, with regard to the continuation of control orders, the Government are tinkering at the edges and it fools no one. The difficulty is that the tinkering being undertaken through the Bill is potentially damaging and dangerous, as well as potentially costly.

The tinkering with the current arrangements includes the renaming of control orders to terrorism prevention and investigation measures notices; a change in the threshold from reasonable suspicion of involvement in terrorism-related activity to reasonable belief; a lengthy list of prescribed powers removing the ability of the Secretary of State also to impose any further obligations needed to prevent or restrict an individual’s involvement in terrorism-related activity; an overnight residence measure instead of curfew orders, which averaged just under 12 hours in 2010; and the TPIM regime being reviewed every five years instead of the annual renewal in Parliament required for control orders.

Unlike control orders, the Bill does not include a power of relocation to another part of the country without consent. Despite the interventions earlier by the noble Lord, Lord Phillips of Sudbury, I do not think that this was done on the basis that there were other provisions in the Bill that could achieve the same objectives.

The Government have clearly had second thoughts about the wisdom of that last matter; shortly before the Third Reading of the Bill in the other place they published the Draft Enhanced Terrorism Prevention and Investigation Measures Bill, which provides powers for the Home Secretary to impose enhanced TPIM notices. The powers available under such enhanced notices would include relocation without consent, which the Bill before us omits, and a ban on using communication devices, which the Bill before us restricts.

In reality the Government are revising the Bill before it has even been passed but, presumably because of the political embarrassment involved in having to put back provisions of the current control order arrangements in the interests of national security, they are seeking to do so not by putting the change in this Bill but by producing another draft Bill that can be debated and voted on by Parliament when needed at a later date. Clearly, the Government now accept that there is a requirement for a continuation of these additional powers in the interests of national security, otherwise they would not be trying to retain them in the somewhat back-door fashion they are proposing. In other words, the Government recognise that the coalition politicking involved in the Bill before us has put national security at risk.

However, the Government's proposed way of rectifying their error of judgment gives rise to further concerns. If for their own political reasons the Government are not going to include those powers in the Bill before us, that means that they could not be activated quickly when needed, since if Parliament was in recess at the time it would require the recall of Parliament and thus a period of some days at least before the Bill could be debated and passed and receive Royal Assent. Neither is it clear, as has been said, exactly how meaningful any parliamentary debate could be. Presumably, the Government would not be disclosing the intelligence information that had led to the Bill being brought forward.

The Government now recognise that the powers provided for in the draft Bill are needed, but because they will not include them in this Bill they are going to create a situation, particularly when Parliament is in recess, where the powers may be needed urgently in the interests of national security but cannot be exercised immediately when the need for them has become pressing. Quite a thought with the Olympic and Paralympic Games just around the corner. That would also mean that if the draft Bill were passed it would run alongside the current Bill, creating two separate control order regimes, expiring at different times, with different levels of power and possible court challenges.

There is a further concern. When Parliament is dissolved, or in the period between the appointment of a new Parliament and the first Queens's Speech, the Secretary of State would be able to apply the provisions of the draft Bill effectively by decree, if Parliament had not debated and passed the legislation and the legislation were still effective. Is that the way we want to go on this issue, either now or in the future? All because the Government will not put the provisions of the draft Bill into this Bill. There is certainly a real price to pay for the coalition Government’s political fudge.

We then come to the issue of resources. Perhaps the Minister will tell us what the additional cost of the extra surveillance for the TPIMs will be, and from where the additional funding will be met. As has been mentioned in this debate, Deputy Assistant Commissioner Stuart Osborne gave evidence to the Bill Committee in June on the readiness of those involved to implement the new system and said:

“To get the resources that we anticipate we need will take more than a year, in terms of being able to get people trained and to get the right equipment. Until we have got that, we will not be able to start to bed things in and see how it works and how it transpires”.—[Official Report, Commons, Terrorism Prevention and Investigation Measures Bill Committee, 21/6/11; col. 9.]

So we have a situation where to date there appears to be silence on what the additional costs of the extra surveillance will be and where the money will come from, and a statement from a knowledgeable source that it will take more than a year to get the resources required in terms of people trained and the appropriate equipment. Where is the additional appropriately trained manpower going to come from at a time when numbers of police officers are being significantly reduced and police forces severely stretched?

Control orders are not ideal nor indeed desirable, but they are needed to deal with the situation that has arisen where a small number of people seek to pursue their own aims and objectives through acts of terrorism, and it is imperative that, when needed, we have the powers to stop them after the time their suspected intentions begin to emerge but before they can carry out their ghastly actions. Control orders have the support of the police, including the power to relocate; they have had the support of the courts, including the power to relocate; and they have been used by the current Home Secretary, including the power to relocate. I understand that some three-quarters of current controlees have relocation as part of their control order.

One of the prime responsibilities of a Government is the security of the nation and of our people. The Bill weakens counterterrorism protection by removing the power to relocate dangerous terror suspects, if needed, to prevent terrorist activity, and puts that provision in a draft Bill that it might not be possible to activate in time to deal with a security situation requiring the immediate use of the powers in the draft Bill. This Bill also weakens accountability since, unlike control orders, TPIMs will not require annual parliamentary votes to continue, and I am by no means the first to have drawn attention to this point. The Bill also fails to address the issue of the additional resources that the police and security services will need for the increased surveillance needed as a result of the changes that it introduces.

This Bill has nothing to do with improving national security; indeed it weakens it. It has nothing to do with human rights, since it is simply a classic example of a piece of legislation that has everything to do with internal coalition politics in which the protection of the people of this country from further acts of terrorism comes second behind the need to produce a political fudge on the question of control orders, which this Bill and the draft Bill retain, albeit under another name. This is not a change to “control order light”; it is a change to “control order risky”—and highly risky, at that. The Government should think again about some of the provisions of this Bill.

[Lord Reid of Cardowan]

Before my noble friend sits down, will he allow me to declare my interests as registered? I meant to do this during my contribution but did not because of the brief time allotment.

Police Federation

Lord Rosser Excerpts

Thursday 15th September 2011 Lords Chamber

[Baroness Browning]

The Home Secretary has consistently been clear that she has the utmost respect and admiration for the bravery and dedication of the men and women of our police forces, but that does not mean unquestioning agreement at all times. The Home Secretary has a responsibility to the taxpayer to tackle the deficit and improve the service to the public. The police cannot be exempt from their share of cuts but, as I have already informed the House, there are regular meetings at which members of the federation can raise any issue they like with Ministers. I understand that, apart from the regular series of meetings that are held, additional meetings are held at certain times, such as the one with my honourable friend Mr Brokenshire following the riots.

[Lord Rosser]

My Lords, we are all grateful for the commitment shown by members of the Police Federation across the country, not least for sometimes working 20 hours a day to assist in tackling the riots and in bringing those involved to justice. However, that all costs money in extra policing at a time when police budgets are being squeezed. Bearing in mind that the Home Secretary has recently said that applications from police forces for a special grant to cover the additional costs will only be “considered”, could the Minister say whether the Prime Minister’s Statement in the other place on 11 August that:

“The Treasury is standing ready to assist police forces. Clearly, the bill for the Metropolitan police force for the past few days will be large and, if they continue to deploy in those numbers, it will get larger and the Treasury will stand behind that”,—[Official Report, Commons, 11/8/11; col. 1065.]

still represents government policy in the light of the Home Secretary’s statement?

[Baroness Browning]

My Lords, we have yet to receive from any police force its Bill in respect of the riots. We have had some indication in one or two forces—for example, I think that some evidence given to the Home Affairs Select Committee earlier in the week would have indicated the nature of the bill—but we cannot at this stage give an open assurance that every bill as presented will be paid. As we understand it, some of these bills are likely to contain quite significant sums relating to opportunity costs. I think that the House will understand that, when I stand at the Dispatch Box and say that we will honour every bill as presented, we will honour our pledge but that we will want to examine those bills very carefully.

Public Disorder: Social Networking Sites

Lord Rosser Excerpts

Tuesday 6th September 2011 Lords Chamber

[Baroness Browning]

I can reassure my noble friend. She will be aware that the police and other investigatory agencies are required to comply with the Regulation of Investigatory Powers Act 2000 and other legislation which seeks to bring that balance. It is not the case that they can do things unilaterally without being held to account.

[Lord Rosser]

My Lords, the Prime Minister said in the other place on 11 August,

“so we are working with the police, the intelligence services and industry to look at whether it would be right to stop people communicating via these websites and services when we know they are plotting violence, disorder and criminality”.—[Official Report, Commons, 11/8/11; col. 1053.]

On 25 August, the Deputy Prime Minister told the Daily Telegraph:

“I’ll tell you what is not going to happen – there is not going to be a Chinese or Iranian-style black-out of social media. And let’s not forget that during the riots, social media was very helpful to lots of people in finding out what was going on and in bringing communities together”.

Which of these two statements now represents Government policy?

[Baroness Browning]

My Lords, as always, the Prime Minister and the Deputy Prime Minister are as one. There is nothing incompatible in those statements. The Prime Minister did not say we wanted to close down networks; he said we would work with the police, industry and others to look at what would be right to do in order to prevent criminality. Anything that is a crime offline is also a crime online, and the companies that we have been consulting have made very clear their commitment to removing illegal content—something which I am sure the Deputy Prime Minister is very pleased to hear.

Police Reform and Social Responsibility Bill

Lord Rosser Excerpts

Wednesday 20th July 2011 Lords Chamber

[Lord Rosser]

My Lords, as my noble friend Lord Harris of Haringey stated, his amendment provides that no person shall be appointed as an assistant commissioner, deputy assistant commissioner or commander by the commissioner of police without the Mayor’s Office for Policing and Crime having the opportunity to interview all candidates being considered for appointment and without the mayor’s office having the opportunity to make recommendations to the commissioner before the commissioner consults the Mayor’s Office for Policing and Crime.

The amendment addresses the responsibilities of the police and crime commissioner in London—namely, the Mayor’s Office for Policing and Crime—and whether it is realistic that a Commissioner of Police of the Metropolis should only have to consult the Mayor’s Office for Policing and Crime before making appointments to senior posts without the mayor’s office having a proper opportunity to assess all candidates for such positions and make recommendations to the commissioner of police.

The Government see police and crime commissioners as being key players in the future in increasing public accountability for policing, including strategy, and making it clear where responsibility lies. The Mayor of London already has overall responsibility for policing in the metropolis—albeit he does not have time to carry out this role, so he has in effect handed it on to someone not directly elected to carry that responsibility. However, if the intention is that the Mayor’s Office for Policing and Crime is to be responsible and accountable to the public for policing, then surely it cannot be right that the mayor’s office can find that the commissioner of police has made a series of senior appointments without the Mayor’s Office for Policing and Crime even seeing the candidates and being in a position to express a view to the commissioner of police.

We have expressed our views on corporation sole in relation to a chief constable, including the Commissioner of Police of the Metropolis, and the consequent extensive power that it gives the occupants of these posts. The amendment seeks to address one issue of concern—namely, the process for making senior appointments—which arises from the lack of proper checks and balances within the Bill. The amendment is intended to provide a check on the use of the power of Commissioners of Police of the Metropolis in this area of appointments, and it gives a better balance in the appointments process between the commissioner and the Mayor’s Office for Policing and Crime, while, as my noble friend Lord Harris of Haringey emphasised, still leaving the decision with the Commissioner of Police of the Metropolis. We await the Minister’s response with interest.

[Lord Condon]

My Lords, first, I apologise for not being present at the start of the discussion. I was delayed on a train.

I support the amendment. Throughout our discussions on the Bill I have expressed concerns about chief officers being able to appoint their senior team. I realise that the Government have a theoretical model in which a chief officer appoints his team and the chief officer is then responsible to the elected commissioner. There is a purity and simplicity in that approach, but recent events and past history suggest that there is great strength in bringing others into the consideration of and recommendations for chief officer posts. That adds legitimacy and the possibility of national concerns about leadership being incorporated into local decisions. I realise that it challenges some of the purity of the Government’s modelling on this issue but I urge them to think through the notion that no one other than the chief constable or the commissioner should be responsible for these senior appointments other than in an informing role. I think that in the public interest something more than informing is desirable.

--- Later in debate ---

[Baroness Henig]

I very much support my noble friend's amendment. In the past few weeks, I have struggled hard to master the concept and practice of corporations sole and to understand the Government’s thinking in this area. I know that we were going to have a meeting about it with the Minister. I would have welcomed that so as to be able to tease out the problems and issues. Unfortunately, that could not take place, and I quite understand that.

My problem is that in this area, the Home Office often has a different view from police authority chief executives, the Audit Commission and other bodies. There is a range of views here: there is the Home Office view of how we should do things, and there are other people who have different views. The reason I have a problem with that is that I have many years of experience at national level of sitting on bodies dealing with the Home Office’s suggested way forward. In my experience, the Home Office sometimes gets things wrong—not always, but on occasion. On occasion, the Home Office can be very stubborn in denying that it gets things wrong. Again, I have experience of that. I know that sometimes it can take years for the Home Office to accept that it has made a mistake and put it right. I am not saying that that happens all the time, but it happens.

In that light and in that spirit, I think that we need to pause. This is a very complex area, and I am not clear that the Government have got it right at the moment. My noble friend has put forward a serious argument and I hope that the Government are willing to consider it.

[Lord Rosser]

We believe that the Government should support the amendment and justify their decision in a report to Parliament as to why it is necessary to concentrate such largely untrammelled power in the hands of police and crime commissioners and chief constables without proper checks and balances. We say that particularly in the light of recent events concerning policing and police actions which, as the Minister will know, are now the subject of inquiries and investigations that may well comment on the issues of governance, checks and balances.

[Baroness Browning]

Amendment 11 would require the Secretary of State to justify the need for police and crime commissioners, the Mayor's Office for Policing and Crime and chief officers of police to be corporations sole, and for the chief finance officers employed by chief officers to be subject to the local government legislation that currently applies to police authority treasurers. The Secretary of State would have to address those matters in a report to be considered by both Houses before the relevant provisions could commence.

I hope that it is clear why the Government believe that it is necessary for PCCs and the MOPC to have corporate status. Police authorities, including the Metropolitan Police Authority, are corporate entities at present. In order to allow them to carry out their functions, the PCCs and the MOPC will have the same functions as police authorities do at present. Turning to chief officers of police, the Government set out the reasons very clearly in Committee and on Report why there is a need for them to have corporate status too. It is simply so that they can employ staff and hold funds in their official rather than their personal capacity. PCCs, the holder of the Mayor's Office for Policing and Crime and chief officers of police will be individuals. That is the essence of the Government’s model for policing governance. It follows that, if they are to have corporate status, they will be corporations sole. This simply follows as a matter of inescapable logic.

I turn to the appointment by the chief officer of police of a suitably qualified chief finance officer with responsibility for making reports. Again, I hesitate to repeat what I have said more than once before, but the Bill creates a model for policing finance that is different from the current system. The Government are clear that chief officers should employ their own staff—a vital process in the context of providing greater autonomy over day-to-day management of the force. As an employer, therefore, for the first time the chief police officer will need to hold substantial amounts of money, and it is vital that there are appropriate safeguards around this. Each chief police officer will need his or her own chief finance officer, suitably qualified to manage the chief officer's affairs. In fact, police forces already have finance directors to do this job. The Government believe that the chief finance officer should be under a statutory duty to make reports where he or she fears the chief officer has made or will make an unlawful decision. Such a report would also go to the PCC and to the chief officer's auditor.

I remind the House that, as I said in previous stages of the Bill, there will not be, and in fact cannot be, any duplication between the role of a PCC's chief finance officer and that of the chief police officer's chief finance officer. The former will have responsibility for money within the police fund, and the latter will have responsibility for the money that has been paid over to the chief officer out of that fund. As such, without a properly qualified chief finance officer—with all the necessary powers and requirements—there will be a significant gap in proper financial propriety.

The Government have been very clear both in this House and another place as to why these provisions are necessary. Amendments to remove them were withdrawn with the House's consent on that basis. We believe that these are necessary measures, and I hope that the House will see that there is a very real need to have quite distinct separation in terms of the financial accounting of the PCC and the chief officer. I invite the noble Lord, Lord Harris of Haringey, to withdraw his amendment. I would say to him and to other Members of the House that I regret very much that we did not have our meeting, particularly on corporations sole, which was in the diary. Unfortunately it clashed with the day on which we had to take emergency legislation through the House. I apologise to noble Lords for having had to cancel that meeting.

As this may be my last contribution on Third Reading of this Bill, I hope that the House will allow me to say some words of thanks to those who have contributed to its smooth passage. I thank particularly the Lord Speaker and Deputy Speakers who have presided, and the clerks and doorkeepers, for whose assistance I am very grateful. I thank my colleagues on the Front Bench; I do not know what I would have done without them. I am also very grateful to the Bill team, who have worked very long hours, not just when they have been in attendance in this House but behind the scenes—and I can assure the House that they certainly were not attempting to waterboard me. I thank all Members of the House who have contributed to this Bill, both in the Chamber and outside. We have not been able to agree on everything; none the less, I have brought forward a package of amendments on Report and Third Reading based very much on what has been said by noble Lords on all sides of the House and outside. I would ask the noble Lord, Lord Harris of Haringey, to withdraw his amendment.

Police Reform and Social Responsibility Bill

Lord Rosser Excerpts

Thursday 14th July 2011 Lords Chamber

[Baroness Farrington of Ribbleton]

My Lords, my name is on this amendment. I fully support all the points raised by my noble friend Lord Bilston. If the Government feel unable to agree to this change today in the Bill, I hope that I could have some information and assurance that the matter will be raised through other channels. How soon could we revisit the issue if it cannot be done in this way?

[Lord Rosser]

My Lords, I will certainly be brief. I do not think anybody seriously believes that non-profit-making clubs are the cause of some of the problems sometimes associated with other clubs. They do much good work in the community and for charities, as has been said. They are not now always financially strong, as my noble friend Lord Bilston explained. We hope that the Government will be able to look sympathetically on the amendment.

[Lord Newton of Braintree]

My Lords, with even greater brevity, I just intervene to say that, having listened to the noble Lord, Lord Bilston, the noble Baroness, Lady Farrington, and the noble Lord on the opposition Front Bench, I want to appeal to the sympathy of my noble friends on the Front Bench. It sounds like a good worthy cause for people who have been having a bit of a struggle. I know a number of them in my own former constituency area, so I hope we shall get a sympathetic ear.

--- Later in debate ---

[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.

[Lord De Mauley]

My Lords, there continues to be concern about the levy’s geographic coverage emanating from a belief that the levy should be a targeted tool. We are confident that we have provided tools such as early morning alcohol restriction orders to allow licensing authorities to target specific areas with alcohol problems. Businesses profit from supplying alcohol in a safe, late-night environment, so they should contribute to the very substantial police costs incurred. If we gave a licensing authority the power to target the levy, fewer businesses would contribute.

My noble friend Lord Clement-Jones’s Amendment 305B and my noble friend Lady Hamwee’s Amendment 305C risk the levy failing in its objective of raising a meaningful contribution towards policing. To retain the focus on policing, I must also resist my noble friend Lady Hamwee’s Amendment 306ZZA, which would reduce the proportion of the levy money after administrative expenses are deducted that goes to the police.

I hope that my noble friend Lord Clement-Jones will also agree not to press his Amendment 306ZA, with my firm reassurance that we will make regulations on exemptions and reductions. He asked specifically about rural pubs and also jazz clubs. We are currently considering the categories ahead of the consultation. Let me also reassure my noble friend that we wish to use the levy to promote participation in best practice schemes, and we will explore that further in consultation.

As regards Amendment 306ZB, we still wish to retain elements of local discretion, so we cannot accept an amendment that constrains this element of localism. Authorities should be trusted to select the right categories for their area. Many schemes are actively encouraged by licensing authorities. They are best placed to grant exemptions or reductions to those schemes that they feel are effective. On that basis, I ask that the amendment is not pressed.

Police Reform and Social Responsibility Bill

Lord Rosser Excerpts

Thursday 14th July 2011 Lords Chamber

Moved by

[Lord Rosser]

311: After Clause 159, insert the following new Clause—
“Expiration of and report on Chapters 1 to 6 of Part 1
(1) Except so far as otherwise provided under this section, Chapters 1 to 6 of Part 1 expire at the end of the period of 4 years beginning with the day on which section 1 of that Part comes into force.
(2) Before the expiry of Chapters 1 to 6 of Part 1, the Secretary of State must—
(a) organise an independent review of the policing governance arrangements introduced by those Chapters.(b) publish a report on the policing governance arrangements introduced by those Chapters, and(c) lay a copy of the report in Parliament.(3) The report required under subsection (2) must, in particular—
(a) set out the objectives intended to be achieved by the policing governance arrangements in Chapters 1 to 6 of Part 1;(b) assess the extent to which those objectives have been achieved, and(c) assess whether those objectives remain appropriate and, if so, the extent to which they could be achieved with different arrangements.(4) The Secretary of State may, by order, revive Chapters 1 to 6 of Part 1 if a draft of such an order is laid before and approved by an affirmative resolution of both Houses of Parliament.
(5) An order made by the Minister under this section is to be made by statutory instrument.
(6) A draft order laid before Parliament under subsection (4) must be accompanied by a copy of the report required under subsection (2).”

[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.

Amendment 311 withdrawn.

Police (Detention and Bail) Bill

Lord Rosser Excerpts

Tuesday 12th July 2011 Lords Chamber

[Lord Rosser]

My Lords, this has been an interesting and thoughtful debate, particularly for those of us who are not qualified lawyers. As the Minister has said, until the recent Hookway case it had been widely accepted, not least by the police and the courts, that, while there is a maximum time of 96 hours for which an individual could be detained without charge, time spent on bail did not count towards that maximum permitted period. That has now changed following a decision by a district judge on 5 April, and noble Lords already know the chronology of events since then.

The written judgment of the judge in the High Court was received on 17 June, and appears to have resulted in a shortage of people sharing the view in his oral judgment that the consequences of his ruling,

“are not as severe as might be feared in impeding police investigations in the vast majority of cases”.

The effect of this Bill is to restore the position to what it had been understood to be by all concerned in relation to bail not counting towards the maximum period of detention without charge, prior to the decision by the judge on 19 May. We support the Bill. We cannot await the Supreme Court hearing on 25 July before determining whether legislation is needed as potentially witnesses and victims of crime and not least victims of domestic violence are at risk of harm if the period of time for which suspects can be bailed without charge, with appropriate conditions attached on which action can be taken if they are breached, is now severely limited.

The statement by the noble Lord, Lord Pannick, that the Supreme Court was not asked to hear the case earlier than the 25 July is very interesting indeed. I know the courts can move rapidly. In the 1970s there was an instance of the Court of Appeal sitting on a Sunday, just two days after the decision by the National Industrial Relations Court which led to the appeal. It would not appear that there is quite the same sense of urgency in relation to this case, maybe because of insurmountable problems or maybe because the appropriate question was not asked, despite its potentially devastating and immediate implications.

The High Court has now said that an interpretation of an Act of Parliament that has been universally accepted and applied by all concerned for the last 25 years, including the courts, is incorrect and that, as a result, powers in relation to bail without charge beyond 96 hours are effectively withdrawn and, even more significantly, with almost immediate effect. The situation that has now arisen, as the noble Lord, Lord Condon, has stated, is causing serious problems for policing and for the conduct of investigations as well as the delivery of justice. It also puts at risk the well-being and safety of victims and witnesses.

If the courts have now decided to interpret a law differently from the way in which it has been interpreted for the past 25 years, there must surely be a less disruptive and potentially less dangerous way of effecting that change.

This brings me to the Government’s actions in this case. The original decision by the district judge was made in early April this year, over three months ago. The single judge in the High Court gave his oral ruling on 19 May, which upheld that of the district judge. Bearing in mind the potential significance of the High Court ruling, why was no application made for the hearing to be before three judges, as I understand could have been the case, rather than allowing the decision to be made by a single judge?

Clearly, at that hearing on 19 May this case was recognised to be of real significance. Counsel representing the appellants made it clear to the court that the consequences of Mr Justice McCombe’s decision would be profound and likely to have a negative impact upon the criminal justice process. Regrettably the learned judge does not appear to have accepted that view.

Can the Minister tell us when officials of the Home Office became aware of the substance of the learned judge’s oral judgment and what steps if any they took to prepare for or challenge the consequences of his judgment? The Minister has asserted today that nothing could be done before the receipt of the written judgment. Like my noble friend Lord Hunt of Kings Heath, I find that surprising. Surely, as an interested party it was incumbent upon the Home Office to consider the consequences of the judgment immediately—whether it might be appropriate for it or the Crown Prosecution Service to intervene, and to further consider whether to apply for a stay to the judge, or ask the Supreme Court to hear the case as a matter of urgency. There was a strong issue of public interest at stake and I ask the Minister if any attempt was made to invite the Attorney-General to intervene on behalf of the public interest. I hope the Minister will be able to address these points in her reply.

While I appreciate that the effect of this Bill is to restore the situation to what everyone thought it was prior to 19 May, and by making it retrospective ensure that potentially a large number of people were not able to make a claim for damages for detention on the basis that they had been treated contrary to the law in the light of the judge’s decision, there is now a need to review and consider again the provisions in respect of bail.

Claims have been made that people have been bailed for excessive periods of time without charge, since there is no time limit on how long people can be bailed in these circumstances. It has been suggested that the lack of a time limit is not an incentive for the police to be as expeditious as they might. Whether there is any substance to these points, I do not know. However, the whole question of bail now needs to be reviewed, including, presumably, in light of the Human Rights Act, which was not in play 25 years ago. I hope the Minister will confirm what she said in her opening speech—namely, that this is what the Government intend to do and, therefore, that the Bill we are considering today may well prove to have a sunset clause. Will the Minister confirm that, if needed following the review, new legislation will be brought forward?

It is important that certainty of the understanding of the law in respect of bail without charge for the 25 years prior to 19 May is restored as a first step. On this side we shall support the Bill and, with it, this fast-track legislation.

Police Reform and Social Responsibility Bill

Lord Rosser Excerpts

Monday 11th July 2011 Lords Chamber

[Baroness Harris of Richmond]

My Lords, I support some of the amendments in this group, to which I have added my name: namely, Amendments 117, 144, 154, 156, 232 and 232A. As we have heard from the noble Baroness, Lady Henig, all these amendments deal with the conduct of PCCs, panel members and audit matters. As we have heard, details on these are virtually absent from the Bill except for very limited PCC complaints matters set out in Schedule 7, which is largely predicated on a criminal standard. In my opinion, this is utterly inadequate for a public position where many other types of inappropriate but not criminal behaviour could arise, so our proposal is to delete Schedule 7 and rebalance the way complaints are dealt with.

The proposals in relation to audit committees are consistent with established good governance principles and provide an additional reassurance about probity, particularly in light of the concerns about corporations sole, about which we have heard so much in your Lordships’ House. The amendments require police and crime panels to set up independent sub-committees to deal with both complaints and audit issues on behalf of the panel. The noble Baroness went into detail about those, so I will not try to emulate her. They also enable panels to require information from PCCs and chief officers in relation to complaints and audit matters.

Amendments 156, 232 and 232A propose that a code of conduct for police and crime commissioners and panel members, collectively referred to as police commission members, is drawn up independently. It also provides for both PCCs and panel members to be disqualified from office if they fail to sign the code of conduct. Amendment 144, in my submission, should have been dealt with in the fifth group, but it appears here. It provides that panels should be able to require information from both forces and PCCs about complaints and audit matters. Amendments 232 and 232A also provide that panel members and PCCs should be disqualified for failing to sign the code of conduct within a month. These are sensible and practical amendments, which I support wholeheartedly.

[Lord Rosser]

My Lords, it has already been pointed out that under the current terms of the Bill, the powers of the police and crime panels are limited to a veto over the appointment of the chief constable and a veto over the precept. The purpose of this group of amendments, moved by my noble friend Lady Henig, is to provide police and crime panels with the powers to act as a much more effective check on the way the proposed police and crime commissioners exercise the considerable powers given to them under the terms of the Bill. As my noble friend Lady Henig has said, the main amendments refer specifically to conduct and complaints, and to the issues of accounts and audit.

The amendments provide for an independent sub-committee or sub-committees to deal with the issues of conduct, complaints and audit, with an independent person chairing the sub-committee, at least three other independent members and up to another three who are police and crime panel members, at least one of whom must be a co-opted member. These independent sub-committees must be established by the police and crime panels.

The amendments provide also for a police and crime panel to require information it needs from the police and crime commissioner and they would change the criteria relating to the powers to suspend the police and crime commissioner to include where the commissioner has breached any required standards of conduct pending investigation of the allegations brought against them. The amendments provide also for a code of conduct for police commission members to be formulated by the Committee on Standards in Public Life, covering standards of behaviour, commitment to equalities and conflicts of interest.

The amendments proposed by the Government, to which the Minister will presumably refer, appear to lack the strength and robustness in relation to police and crime panels of those proposed by my noble friend Lady Henig and the noble Baroness, Lady Harris of Richmond. As has been said, those amendments come back to the issue that has been raised on a number of occasions during our discussions on the Bill: namely, where are the checks and balances to address the abuse or misuse of the considerable personal powers given to the police and crime commissioners? What is the effective role and purpose of a police and crime panel if it is not to be able to provide part of those checks and balances and thus help ensure that a police and crime commissioner pays regard to the views and concerns of such panels, providing them with the information they need to carry out a meaningful role and thereby helping enhance confidence in the system and structure on the part of the public?

If the Government have really been listening to concerns expressed in your Lordships' House, including over appropriate financial and ethical governance arrangements, they will support the thrust of these amendments.

[Lord Shipley]

My Lords, parallel to our discussions on this Bill, the Localism Bill is in Committee. In that, there has been discussion both on a code of conduct and on the need for a standards committee. There has been discussion around whether the code of conduct should be voluntary or statutory—there is a strong view, I think, in your Lordships' House that it should be the latter. On standards committees, which are likely to be abolished under the Bill, I also detected in your Lordships' House strong support for each local council having such a committee.

Irrespective of that, there are two major issues of principle here. The first is the role of audit, which, it is important to bear in mind, is not the same as scrutiny and which has statutory force in local government. The second is that audit should be independently led. The powers currently given to the panels are insufficient to deliver those two principles.

Audit is not just about finance; it is also about a whole range of matters including procurement policy, contracting, managing very large budgets, procedures being followed, human resources policies and equal opportunities. An amendment is being made here which I hope the Government might find helpful. It proposes that audit be fundamental part of the checks and balances we need in relation to a police and crime commissioner. Subsection (1) of the proposed new clause is right in stating that every police and crime panel should deal with complaints and conduct matters, monitor the discharge of the police and crime commissioner’s functions and monitor the accounts and audit matters of the relevant police commission, police and crime commissioner and chief constable as the case may be.

The question is whether that task should be undertaken simply by the panel or whether a slightly different structure is needed. I think that a different structure is needed, because audit is an important issue when public money is being looked after. There should be two sub-committees—I refer here to subsection (2) of the proposed new clause—one of which looks specifically at audit and the other at conduct and complaints.

The proposal in Amendment 117 relates to the nature of the independence of the sub-committee. To have someone who is independent and appointed according to Nolan principles chair that sub-committee is important. To have then at least three other independent people, balanced by up to three panel members, means that the public would gain confidence in that structure because they would see that there were more independent members than members of the panel.

At the heart of the problem is the fact that no governance structure lies underneath an elected police and crime commissioner. In other words, there is a perception in the Bill if you simply have direct election of a commissioner there is legitimacy in that. Well, of course there is, but one has to have checks and balances—which the coalition agreement has identified and said have to be strict. Having a clear audit function which is publicly accountable is a matter of fundamental importance; otherwise, those checks and balances cannot be properly delivered.