Police Reform and Social Responsibility Bill

Baroness Browning Excerpts

Thursday 14th July 2011 Lords Chamber

Moved by

[Baroness Browning]

245: Schedule 14, page 154, line 40, leave out “this paragraph” and insert “sub-paragraphs (2) to (5)”

[The Minister of State, Home Office (Baroness Browning)]

My Lords, the government amendments to Schedule 14 correct a number of drafting errors that have come to light during the passage of the Bill. The changes are necessary in order to ensure that the changes to the existing police complaints legislation work properly. I assure noble Lords that in the main they are technical, drafting points that, for example, correct incorrect numbering and add consequential amendments that were missed. I realise that there are other amendments for debate in this group. I beg to move.

[Baroness Doocey]

My Lords, I will speak to Amendment 256 in this group. Before doing so, I apologise to the House that I may be unable to stay until the end of the debate. I have to attend a special meeting of the Metropolitan Police Authority where the commissioner is coming to answer questions about the events surrounding the various police investigations into the News of the World.

The amendment relates to the handling of complaints against senior police officers in London.

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[Lord Shipley]

My Lords, I have a query in relation to Amendment 245. A number of years ago, I was a member of the complaints committee of Northumbria Police Authority. I well remember being advised that every complaint that was written down was provided to the committee to see, whether or not it was regarded as spurious and whether or not action had been taken or was going to be taken. We were given all the original correspondence and a summary of the action that had been or would be taken. That system seemed to work well.

However, I would appreciate the Minister’s clarification on a point in the Bill. Paragraph 8(2) of Schedule 14 to the Bill substitutes paragraph 2(1) of Schedule 3 to the Police Reform Act 2002 with a new sub-paragraph which states:

“Where a complaint is made to the Commission, it shall give notification of the complaint to the appropriate authority”.

So far, so good, but it then states:

“But the Commission need not give that notification if the Commission considers that there are exceptional circumstances that justify its not being given”.

It is not clear to me, but it may be made clear by regulations or other means, what the definition of “exceptional circumstances” is. Years ago, I was in a position where every complaint was written down and was provided to the complaints committee. We need to be reassured that a structure is not being created whereby complaints made are simply not acted upon because there are deemed to be exceptional circumstances that justify there being no further progress on them.

[Baroness Browning]

My noble friend’s amendment would mean that the responsibility for dealing with appeals in relation to low-level complaints against the Metropolitan Police would be handled by the Mayor's Office for Policing and Crime rather than the responsibility resting with the Commissioner of the Metropolitan Police. While the Government recognise that giving the Mayor's Office for Policing and Crime responsibility for dealing with appeals against the handling of low-level complaints is one way of providing some independent scrutiny of such matters, we are not persuaded that the duty to consider individual appeals should rest with the Mayor's Office for Policing and Crime.

It is commonplace for complaints to be decided—as the noble Baroness said, because I think she has heard me say this before—within an organisation rather than by an external arbiter. In practice, the chief officer will not be hearing an appeal against his own decision. The duties will be delegated so that, for example, the initial decision is taken by the line manager of the officer complained against and the appeal is conducted by the professional standards directorate. A complainant who feels that an appeal has not been properly considered will have further routes of redress, first to the Mayor's Office for Policing and Crime, which can direct the chief officer to look again at the matter, and secondly to the courts if the decision is irrational or unfair.

The Government consider that these safeguards are sufficient and achieve the same effect as this amendment suggests. Further, we are concerned that giving the Mayor's Office for Policing and Crime responsibility for hearing all low-level complaints against the Metropolitan Police would place a significant burden on the office and distract it from its core duties of securing the maintenance of an efficient and effective force and holding the commissioner to account for the exercise of his or her functions.

As a final point, the amendment would mean, as the noble Lord, Lord Hunt, has already identified to my noble friend, that the police complaints regime would operate differently in London from the rest of England and Wales where low-level appeals would remain the responsibility of the chief constable.

With regard to the interpretation of “exceptional circumstances” raised by my noble friend Lord Shipley, rather than giving a detailed explanation off the top of my head, I will take advice and write to him about it. I hope that will be of help to the House. On this basis, I hope that my noble friend will not press her amendment.

Amendment 245 agreed.

Moved by

[Baroness Browning]

246: Schedule 14, page 155, line 16, at end insert—
“(6) In consequence of the amendments made by sub-paragraphs (2) to (5)—
(a) in section 12(2) (complaints, matters and persons to which Part 2 applies), omit “, paragraph 2(4) of Schedule 3”;(b) in section 29(1) (interpretation of Part 2), omit paragraph (b) of the definition of “recordable conduct matter”.”

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Moved by

[Baroness Browning]

256A: Schedule 15, page 165, line 26, leave out from beginning to end of line 3 on page 166 and insert—
“Chief officers of policeCurrent chief officers to remain in post1 (1) At the relevant commencement time a person who, immediately before that time, is in post as the existing chief officer of the police force for a police area becomes the new chief officer of that police force.
(2) Where a person has, prior to the relevant commencement time, accepted an appointment as the existing chief officer of the police force for a police area which is to come into effect at a time (the “effective time“) which falls at or after the relevant commencement time, that appointment is to take effect at the effective time as an appointment as the new chief officer of that police force.
(3) Sub-paragraph (2) is without prejudice to any right of the person appointed not to take up the appointment.
Transfer of rights and liabilities2 At the relevant commencement time, all rights and liabilities which immediately before that time were rights and liabilities of the existing chief officer of the police force for a police area are to transfer to the new chief officer of that police force.
Relevant legislative provisions”

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Moved by

[Baroness Browning]

257A: Schedule 15, page 167, line 3, leave out “existing police authority” and insert “new policing body”

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Moved by

[Baroness Browning]

258A: Schedule 15, page 167, line 8, leave out “existing police authority” and insert “new policing body”

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Moved by

[Baroness Browning]

259A: Schedule 15, page 167, line 17, leave out “existing police authority” and insert “new policing body”

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Moved by

[Baroness Browning]

260A: Schedule 15, page 167, line 18, leave out “authority” and insert “body”

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Moved by

[Baroness Browning]

261A: Schedule 15, page 167, line 21, leave out “authority” and insert “body”

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Moved by

[Baroness Browning]

262A: Schedule 15, page 167, line 23, leave out “existing police authority” and insert “new policing body”

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Moved by

[Baroness Browning]

263A: Schedule 15, page 167, line 23, at end insert—
“5A (1) The Secretary of State may direct a new policing body—
(a) to modify a transfer scheme made by that body, and(b) to submit such a scheme to the Secretary of State for approval.(2) Sub-paragraphs (2) to (5) of paragraph 4 apply to a direction under sub-paragraph (1) of this paragraph as they apply to a direction under sub-paragraph (1) of paragraph 4.
(3) In the application of paragraph 4(2) to (5) by virtue of sub-paragraph (2)—
(a) references to paragraph 4(1)(b) have effect as references to sub-paragraph (1)(b) of this paragraph;(b) references to the making of a scheme have effect as references to the modification of a scheme;(c) references to a scheme have effect as references to a scheme as modified.(4) The Secretary of State may modify a transfer scheme made by a new policing body if—
(a) the authority does not comply with a direction given to it under sub-paragraph (1), or(b) the Secretary of State decides not to approve the modified scheme submitted by the body.(5) A scheme modified by the Secretary of State under sub-paragraph (4) is to be treated as if modified (and made) by the new policing body.
(6) A scheme modified in accordance with this paragraph is to be deemed for all purposes to have come into force with those modifications.”

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Moved by

[Baroness Browning]

264ZA: Schedule 15, page 167, line 27, leave out paragraph (a)

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Moved by

[Baroness Browning]

264B: Schedule 15, page 167, line 30, leave out sub-paragraph (2)

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Moved by

[Baroness Browning]

265A: Schedule 15, page 167, line 45, leave out paragraph (a)

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Moved by

[Baroness Browning]

266A: Schedule 15, page 168, line 44, leave out sub-paragraph (i)

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Moved by

[Baroness Browning]

267A: Schedule 15, page 169, line 12, after “rights” insert “or interests”

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Moved by

[Baroness Browning]

270: Schedule 16, page 176, line 33, leave out paragraph 30

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Moved by

[Baroness Browning]

273: Schedule 16, page 191, line 2, leave out paragraph 134

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Moved by

[Baroness Browning]

291: Schedule 16, page 200, line 7, after “Act),” insert “by a member of the civilian staff of a police force (within the meaning of that Part of that Act), by a member of the civilian staff of the metropolitan police force (within the meaning of that Part of that Act),”

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Moved by

[Baroness Browning]

296: Schedule 16, page 208, line 26, leave out from “for” to end of line 27 and insert ““person employed by a police authority” substitute “relevant employee”;”

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Moved by

[Baroness Browning]

303: Clause 104, page 65, line 28, at end insert—
“and to the person (if any) appointed as the deputy police and crime commissioner under section 19.”

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[Lord Stevenson of Balmacara]

My Lords, I am a bit intimidated by the thought that I might have to defend not only the point that we are talking about today but the whole panoply of human rights law, but perhaps we can duck that for now. As has been mentioned already, we had a good discussion on these points in Committee and we do not need to go over them. What is disappointing is that, as has been said, we do not seem to have moved on since then. We felt that the Minister’s responses to the original discussion were a bit lacking in the sort of detail required to be convincing, but it would have helped if we had been able to have sight of the guidance she promised. The guidance has not appeared, and therefore we are not much further forward. I hope that the Minister will be able to help us today, but if the noble Lord, Lord Clement-Jones, wishes to seek further support from this Bench, we would certainly be there behind him in the Lobbies.

[Baroness Browning]

My Lords, for some reason we seem to be in a “vote early and vote often” mode today. These amendments seek to remove three clauses from the Bill that lower the evidential threshold that applies to decision-making by licensing authorities. The clauses replace the requirement that licensing authorities should take actions that are “necessary” with the requirement that their actions are “appropriate”. I do not want to engage the House too long on this debate because we would end up rehearsing all that was said in Committee, but I should say that I do not think that the word “convenient” is a substitute for “appropriate”, although I suspect that he was being rather tongue-in-cheek when he said that.

Lowering the threshold will make it less onerous for licensing authorities to refuse or revoke licences if it is appropriate for the promotion of licensing objectives. The four licensing objectives will still apply. My noble friend Lady Hamwee suggested that I was not clear enough about this in Committee, so I reiterate that the four statutory licensing objectives still apply. However, lowering the threshold will make it less onerous for licensing authorities to refuse or revoke licences if it is appropriate for the promotion of the licensing objectives.

I am most grateful to my noble friend Lord Clement-Jones for advising me in advance of his concerns. On the “necessary” test and the importance of it being compliant with human rights law, the statutory test of what is appropriate as the basis on which licensing authorities must make decisions—alongside clear guidance to those authorities as to what is meant by this threshold, and the availability of statutory rights of appeal for licensing applicants and others affected by licensing decisions—ensures that the ECHR rights of those affected by licensing decisions are safeguarded. My noble friend prayed in aid his experience of previous legislation in this area. The requirement that an interference with ECHR rights must be “necessary” is a concept that has been developed in the context of human rights law and is not directly comparable with the meaning of “necessary” as it currently appears in the Licensing Act 2003.

My noble friend suggested that the only right of appeal against licensing decisions, including the imposition of conditions, is judicial review. That is not correct. Section 181 of the Licensing Act 2003 already provides for a statutory right of appeal to the magistrates’ court against most decisions by licensing authorities, including decisions on the granting or revocation of a licence and the conditions attached.

I must also inform the House that although it has been suggested that the Local Government Association is against these proposed changes, that is not the Government’s understanding. Indeed, in response to our consultation on rebalancing the Licensing Act, the LG Group said that it “broadly welcomes this proposal”.

[Lord Soley]

My Lords, I am grateful to the noble Baroness. I think I am more sympathetic to the Government’s word “appropriate” than to the suggested use of the word “necessary”. In the context of the Bill, both these words are actually subjective in terms of what is being looked at. I assume that the Government prefers “appropriate” because I would have thought that it would be easier to argue either for or against in court than “necessary” would be, because that word is rather different. Is that not the thinking behind the Government’s proposal? I understand the arguments, but the central issue seems to be that of appeal. It would be easier for a court to reach a decision on what is “appropriate” than on what is “necessary”. However, please tell me if I am wrong.

[Baroness Browning]

My Lords, I am not in a position to try to second-guess how a court would determine that, because we are talking hypothetically and not about a specific example. I will come on to an example which might be helpful to the House. The lower evidence threshold would apply to most conditions, but to show that the imposition of conditions such as the use of plastic glassware or closure of windows after a late hour or the use of CCTV in or outside bars is “necessary” for the promotion of licensing objectives, including the prevention of nuisance or crime and disorder, is an onerous test. It would be less onerous for local authorities to show that such conditions were “appropriate” for the promotion of the licensing objectives. I hope that that is helpful to the House, because when we debated the equivalent amendment in Committee, I was unable to give an example such as that. I hope that that gives the House a feel for the thinking behind the Government’s change to the wording.

I can assure my noble friend that these decisions will still need to be evidence-based. We will include statutory guidance on the new tests, as I have suggested. I am not in a position to say that the guidance will be available at this stage of the Bill, but it will be made available. It will be consulted to ensure correct interpretation once the legislation is applied. On that basis, I ask my noble friend to withdraw the amendment.

[Lord Clement-Jones]

My Lords, I thank my noble friend the Minister for her response. I thank also my noble friend Lady Hamwee and the noble Lord, Lord Stevenson, for their support. The Minister’s reply to the noble Lord, Lord Brooke of Sutton Mandeville, illustrated only too well how cunning government departments are in answering questions about the ECHR. The response was fascinating, being essentially that there is “necessary” and “necessary”, and that, for the purposes of the ECHR, “appropriate” equals “necessary”. That seemed to be what the Minister was saying. It is clearly highly dangerous to quote the ECHR in these circumstances, because you get an Alice in Wonderland type of response.

However, I was very grateful for the remainder of the Minister’s response. Her undertaking to consult on the statutory guidance will, I think, be welcomed by all concerned. Some of the examples that she gave might not be considered “necessary”, although, as I said in my opening contribution, if licensing authorities are able to impose 64 conditions on a takeaway, they do not lack powers. I am not going to push this. We have had a good debate over two stages of the Bill. I have tried to express the concerns of the trade on this matter. I hope that that dialogue will continue in the statutory consultation so that “appropriate” is confined —so that it is not equivalent to “suitable”, and certainly not equivalent to “convenient”. In the mean time, I beg leave to withdraw the amendment.