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Clause 33

Volume 978: debated on Thursday 14 February 1980

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I beg to move amendment No. 34, in page 26, line 39, leave out clause 33.

I contend that clause 33 should be deleted from the Bill because it is a departure from what is usually accepted in Britain as basic justice in police procedures for searching people, with or without warrants. The clause gives the power to police constables within the Merseyside county council area to
"(a) search any person who may be reasonably suspected of having in his possession or conveying in any manner any thing stolen or unlawfully obtained; and (b) if there are reasonable grounds to suspect that any thing so stolen or unlawfully obtained may be found in or on any vehicle or vessel, enter upon and search the vehicle or vessel."
The clause thus gives police constables in Merseyside the power to search people, their vessels and their motor cars, without a search warrant and without consulting a magistrate in order to get a search warrant. It can be done simply because a police constable reasonably suspects that someone might have in his possession something that has been stolen. This is, as I have said, a departure from what British law has tradi- tionally said and provided for. There are very few cases in which it is possible for police constables to stop and search people or to search their motor cars or their vessels without a search warrant.

To give this blanket power, on the basis that the police constable takes it upon himself to suspect somebody, will create great difficulties. Indeed, where it is in existence at the moment in Merseyside, it causes great difficulties. Stop-and-search laws generally have come into very great disrepute, and rightly so.

There is a great deal of suspicion about the way in which the stop-and-search laws are used on Merseyside. If one speaks to the Merseyside community relations council, one is told that there is much anxiety about the way this law is applied to coloured youngsters and black youths on Merseyside. It is very often the coloured immigrant against whom the powers are used.

I urge the House to accept the amendment. I believe that it is wrong to give police constables power to stop and search without requiring them first to have obtained a warrant or to have grounds for suspicion other than those based on a constable's interpretation of what is "reasonable suspicion". I see that the Minister is nodding his head, but nowhere in this legislation is it spelt out that any other person, such as a magistrate, will be involved in determining what is "reasonable suspicion".

I move the amendment in the hope that the clause will be deleted. It is a major civil liberties issue, it will have an adverse effect on many young people, and it causes suspicion amongst the immigrant community on Merseyside. I hope that my amendment will be accepted in the spirit in which it is moved.

I support the proposal to delete clause 33. It is significant that if the clause is passed the date on which it will expire is 31 December 1984. There are plenty of "big brothers" in this world without encroaching further on the civil rights of the individual. The police already have sufficient power. Although stop-and-search powers have been used in Liverpool, Bootle and Birkenhead for many years—mainly in the dockland areas—they will now be spread over the whole of Merseyside.

I do not need to remind the House that in Liverpool there has been much disquiet about police public relations. To illustrate that, I need mention only the Jimmy Kelly case and a number of others that have caused serious public concern. The Liverpool trades council has opposed this clause, as, indeed, has the National Council for Civil Liberties. We should oppose the clause and support the amendment moved by my hon. Friend the Member for Bootle (Mr. Roberts).

I again rise to give the House an indication of the Government's view on this matter. I should make it clear at the outset that I do not agree with the points that were put forward by the hon. Member for Bootle (Mr. Roberts) and by his colleague, the hon. Member for Liverpool, Scotland Exchange (Mr. Parry).

One should, first of all, look at what the provision of clause 33 permits. Here we come to the question of reasonable suspicion on the part of a police constable that a person whom he wishes to search has in his possession something stolen or unlawfully obtained. I apologise to the hon. Member for Bootle for the inaccurate movement of my head. I suspect that he interpreted a shake of the head for a nod. In fact, I was not agreeing with him when he said that it is simply left to a police constable to decide what is reasonable suspicion. The hon. Member is right to the extent that no one else is given any kind of specific prior veto; nor does it impose on the police constable an obligation to seek permission from anyone before purporting to exercise that power. None the less, the person whom the police constable wishes to search must be reasonably suspected. Afterwards, if there is any dispute about the matter, it will be for the court to decide whether the police constable had reasonable grounds for suspicion.

I will just develop this point and then I shall give way. It is not sufficient for the police constable to say "Well, I thought he looked suspicious."

9.30 pm

The very inclusion of the word "reasonable" must mean that the police constable concerned must satisfy the court, if he is challenged, on an objective basis that he had good grounds for suspicion. He does not have to satisfy the court that he was right or that the person had anything stolen. He has to satisfy the court that his suspicion was well founded to the extent of being reasonable.

Is the Minister aware that under the provisions of the Prevention of Terrorism (Temporary Provisions) Act 1974 more than 1,000 innocent people have been arrested on Merseyside over the past five years who have not been charged? Surely, the Bill will lead to more innocent people being arrested purely on the ground of suspicion. That will cause further bad feeling between the public and the police.

If there were any risk of that happening as a result of the clause, I could understand the hon. Gentleman's concern. However, his argument does not relate to the clause. The clause provides not the power of arrest but the power of search. The issue of charging people does not arise. That arises only if the person resists the search that the police constable has a right to make. If there is resistance, the issue arises of whether the officer had reasonable suspicion. It is only at that stage that the question arises.

Surely the Minister is demonstrating the inbuilt dangers in this measure. If someone is innocent yet the officer has in his mind reasonable suspicion and wants to search that person, difficulty will arise. If I were innocent, I should resist the search. There will be people charged who are innocent. They will be charged not with stealing or having in their possession stolen goods but with offences such as assaulting the policeman or resisting arrest. The clause is fraught with difficulties. That is why stop-and-search laws are causing so much friction between the public and the police.

I do not accept that it is fraught with difficulties. I do not accept that the hon. Gentleman has made out his case. He has said that it is fraught with difficulties, but in no sense has he proved that that is so. Therefore, I do not accept his strictures on the clause.

I am not concerned to defend the existence of the clause as a general power. That is not our concern. We are considering whether it should be applicable in the county of Merseyside. I accept that there are arguments for and against its availability throughout the country and whether it is a proper provision. I am not saying that there are no arguments to the contrary. I do not wish hon. Members to think that I am saying that it is necessarily right that there should be a general provision. Equally, I accept that there may be room for the view that if there should be such a provision it should apply throughout the country and not merely on Merseyside and in some other areas.

Similarly, if there should not be such a provision, there is a strong case for saying that it should not apply anywhere. I accept that. However, all these issues are being considered by the Royal Commission on criminal procedure. When the Royal Commission reports, we shall be able to decide whether it is right for there to be uniformity throughout the country, for which I believe there is a strong case. If there should be such uniformity, should it be reflected in the general law or in no such provision? For the moment we are dealing with the interim. The issue is what we should do about Merseyside. The right approach to adopt for Merseyside is much the same as the one that we have sought to follow in some other controversial areas. Broadly speaking, that is to maintain the status quo.

The problem with a large part of the county of Merseyside is that a provision of this sort has existed for a long time—in some cases for almost 100 years. It is not a provision that is no longer used and out of date, but it is used extensively by the police, who feel it to be necessary. Surely, it is sensible that, until a national decision is taken as to whether or not it is appropriate for such matters to carry on on a local basis, Merseyside should be allowed to carry on doing what it has done for almost 100 years, in the absence of clear evidence that that is no longer tolerable. Opposition Members have produced no such clear evidence. At the most, they have produced assertions.

I accept that if the Bill is passed in this way, the legislation will be extended over a wider geographical area than is now the case. That is unavoidable because there is no possibility for such legislation to cover Liverpool alone or the other parts of Merseyside—

If I may just finish the point, I shall give way to the hon. Gentleman. Indeed, there is no possibility for it to cover the other parts of the county where the power exists. There has to be a Merseyside Bill. Therefore, either it is extended to the remaining parts of the county which do not have provision or it is dropped from the large parts of the county which have had the provision for almost 100 years.

The logic of that argument is precisely what an Anglican bishop who finally became a cardinal of the Roman Catholic Church argued about miracles. He said that we either accept miracles entirely or not at all. That is not the position in this case. Surely, it can be written into a clause that the powers remain as they are but they are not extended. As that has not been done, the logic is that we cannot accept it.

I do not accept that that is the logic. If we are introducing legislation for Merseyside as a whole, it is not feasible to freeze the position and have a distinction between one part of a county and another Therefore, I conclude that in the absence of proven mischief as opposed to assertive mischief, and with a large part of the county having had the provision for almost 100 years, it is reasonable that it should continue and that the clause should remain in the Bill.

I concede that there is great weight in the Minister's last point. The alternative would be to require of the authorities in the area a continuing recognition in their minds of the old boundaries which, until now, they have had to retain because of the old legislation on the statute book. In the normal course of events, it is not reasonable to demand that of them, and, therefore, the situation is unsatisfactory.

We all agree that the sooner the Royal Commision on criminal procedure produces its report, the better. Then, we can make our decision on the matter and the public order review so that there is proper national-based legislation—or a decision that we do not want national-based legislation on the matter. Hon. Members who attend debates on individual local Acts go through this process every time. It is a different group of hon. Members each time. However, the Minister and I face each other on these occasions, and, therefore, I should stop telling him the same thing every time. Nevertheless, some things need to be repeated.

When we review very old local statutes, we find things that are positively horrifying. Such things would not be put into a statute now. As the statutes went through Parliament, not as Public Bills but as Private and Local Bills, they were not subjected to the rigorous scrutiny that generally applies to a general Public Act.

In 1937 a judgment was given on one of the leading cases involving "sus". "Sus" is the offence of being a suspected person and of loitering with intent. In the case of Ledwith v. Roberts there is a passage towards the end of the judgment that is worth quoting. Mr. Justice Scott was dealing with a Liverpool Act. Indeed, that Act will be almost entirely repealed by the Bill. He referred to section 513 of the Liverpool Corporation Act 1921. Mr. Justice Scott said:
"Finally, I would make one more suggestion. If the Liverpool Act of 1921, s.513, and the old London Act of 1839…create different offences and confer different powers of arrest from those of the general law of the land contained in the public statutes, it is surely time to abandon the system of such local variations, whatever may have been their justification in earlier times. To-day crime and personal liberty ought not to vary from town to town as must be the case if they are to depend on municipal variations in 'local and personal' Acts of Parliament. They ought to be the same throughout the length and breadth of the land. Why should such provisions be inserted in local Acts at all?"
The hon. Member, the Royal Commission, the Home Office review of public order and, indeed, all of us should keep that weighty opinion in our minds. I therefore repeat that we should steer ourselves in the direction of national legislation on matters that so closely touch civil liberties.

On behalf of the promoters, I hope that the hon. Member for Bootle (Mr. Roberts) will not press the amendment to a Division. I cannot hope to cover all the allegations that have been made. However, my colleagues and I have full confidence in our police force. It does a first-class job in frequently difficult circumstances.

I shall reiterate two points. First, in the County of Merseyside Bill it is states clearly that the section shall cease to have effect on 31 December 1984. Secondly, the Royal Commission on criminal procedure has specifically invited evidence on this particular power. Obviously, one awaits those recommendations before any further discussion.

Is my hon. Friend aware also that a Sub-Committee of the Select Committee on home affairs is investigating and will be reporting on the same subject?

The House will be delighted by that news. We are comforted by the fact that my right hon. Friend will be chairing the Committee. We look forward to the conclusion of its deliberations. I hope that the hon. Member for Bootle will not press his amendment to a Division.

Amendment negatived.