House of Lords
Tuesday, 20 October 2009.
Prayers—read by the Lord Bishop of Leicester.
My Lords, the Government have invested £5 billion, through DWP, to ensure that people are supported to find work during the recession. This includes more resources for Jobcentre Plus and the Flexible New Deal; increased staffing; our six-month offer to jobseekers; and, of course, the young person’s guarantee and Future Jobs Fund.
Furthermore, our Backing Young Britain campaign seeks to help young people find work while they are studying, as well as helping those unemployed.
I am grateful to the noble Lord for that reply. In the Prime Minister’s speech at the Labour Party conference, he referred to the,
“100,000 new young people’s jobs we are already creating”.
He went on to talk about a further 10,000 skilled internships and 10,000 green work placements. Is all that enough, in view of the fact that the young unemployed now number close to 1 million?
Well, my Lords, the noble Lord asks “is it enough?”. It is certainly a good deal more than the noble Lord’s party would do, because it is predicated on investment by government. Because the noble Lord’s party is on record as opposing the fiscal stimulus, it would not be able to do what we are doing. The Government are supporting and investing in a range of programmes, including the young person’s guarantee. It is right, of course, that unemployment continues to rise, and with it youth unemployment, but there are signs that it is easing. We should not forget the fact that young people tend to come off jobseeker’s allowance faster than other people. In terms of NEETs, there are now more young people in employment and education than there were in 1997, and the number of 16 and 17 year-olds in the NEET category has declined for three years in a row.
Does my noble friend agree that, rather than wallowing in the bad news that there is around, in relation to unemployment we ought to recognise that the stimulus package is beginning to work and that the unemployment figures published last week were far lower than had been anticipated and seem to indicate that there is a reasonable prospect that unemployment is bottoming out?
My noble friend is absolutely right. As I said a moment ago, unemployment is still rising but it is easing. We should not forget that there is a dynamic market here; the number of onflows on to JSA in September was 357,000, but the number of people leaving jobseeker’s allowance was 336,000. Lots of people, young people included, are still finding work through the support that the Government are giving them.
My Lords, will the Minister do his best to ensure that the admirable Access to Work scheme, which helps many disabled people get into work, including many in this age range, is not so bureaucratic that, by the time all the paperwork is done, the employer may have withdrawn the job offer? We have heard that that has happened, particularly in the field of the hard of hearing.
My Lords, if that has happened in individual cases, we are certainly happy to look at it and take it up. But I think that the noble Baroness will share the view that Access to Work has been a huge success. The Government have doubled funding for it, and it is making a real difference to disabled people in helping them to access employment. I understand that it is on the lists of those programmes that the noble Lord, Lord Freud, has his sights, should he ever have the opportunity to introduce them in government. I think that it is due to go, should there be a change of government, which I do not expect.
I can confidently tell the Minister that that is not one of the programmes that we have in our sights, as he puts it.
The programmes in the young person’s guarantee look very similar to those in the New Deal for Young People, which was introduced 11 years ago. That programme managed to place only one young person in five into work, according to the DWP’s own employment data. Does the Minister think that the young person’s guarantee will perform better than the New Deal for Young People and, if so, why?
My Lords, I do believe that it is an effective proposal, which will help young people to access work or work-focused training. The structure of the programme is quite appropriate and it is targeted correctly. I do believe that the programme will succeed and be an important part of the range of government programmes. It is, again, part of the programme that is funded through the fiscal stimulus.
My Lords, while the additional support to help the unemployed—more especially, jobless young people—is most welcome, would my noble friend agree that, in the present economic climate, it is more important than ever to recognise the added vulnerability of disabled young people in seeking to enter and remain in work, and that progress made over recent years in prioritising their claims should continue with renewed energy and commitment?
My Lords, my noble friend raises a very important point and I agree with him. We must continue to support disabled people into work, notwithstanding the challenges of the current recession. That is why we are investing £1 billion in Pathways to Work between 2008 and 2011, doubling—as mentioned a moment ago—the Access to Work budget from £69 million to £138 million by 2013-14, and planning to introduce a new, more integrated specialist disability programme, Work Choice, by October 2010. Meanwhile, we are taking extra powers in the current Welfare Reform Bill to ensure that customers engage with the back-to-work support that we offer.
My Lords, does the Minister agree that, as has been mentioned already, it is very important that young people are given every opportunity possible? Internships have been mentioned. Does he agree that it is important that, while they are there, people are also treated fairly through internships and that opportunities are given as soon as possible to provide paid work? Volunteering is another area that could similarly help.
Yes, my Lords, and that is very much part of the approach in Backing Young Britain, where the Government have initiated a campaign which is really a rallying call to businesses, charities and government bodies to create more opportunities for young people. Included in that is the creation of internships for 18 year-olds and non-graduates, as well as providing more apprenticeships and internships for graduates.
My Lords, do the Government intend to give more support to rural youngsters to enable them to get to work? In other words, do they intend to put more money behind the Wheels to Work schemes, which currently woefully lack most central government support?
Highways Agency: Traffic Officers
My Lords, Highways Agency traffic officers manage traffic primarily on motorways in England, where they perform a number of control room and on-road functions. They deal with incidents, except where there is a loss of life, injury or potential criminal activity, when they assist the emergency services. They exercise their powers under the Traffic Management Act 2004.
My Lords, I am grateful to the Secretary of State for that reply. Does he not agree with me, however, that every time we pass a new Bill to create a new quango we include provision for a little group of people authorised to order us about? Is this not a wholly undesirable development? Would he like to review the powers of these officers, who are, no doubt, worthy and honourable people, with a view to considering whether they should be reduced, like all others?
My Lords, that is a slightly strange question. The powers granted to traffic officers were granted by Parliament, not through some secret process without due consent, but through the Traffic Management Act 2004, which I understand was debated thoroughly in this House and I see on the title page was,
“ENACTED by the Queen’s most Excellent Majesty, by and with the advice … of the Lords Spiritual and Temporal”.
The powers of traffic officers to stop or direct traffic are set out clearly and explicitly in Section 6. As to why we have traffic officers, there has been a big rise in traffic on the motorway network—a 10 per cent rise in the past 10 years alone. The problem of congestion and management of the motorway is a very big issue. If this work was not done by traffic officers, it would need to be done by the police. Mick Giannasi, chief constable of Gwent and spokesman for the Association of Chief Police Officers on road policy issues, says:
“The Highways Agency Traffic Officer Service provides a valuable service dealing with minor incidents and traffic management on England’s motorways. This work relieves police officers who are able to concentrate on dealing with criminals and investigating serious incidents”.
Far from this being a needless quango, these officers perform a valuable service, which keeps the traffic on our motorways moving day in, day out.
My Lords, is there not an argument for having more of these people, so that they, together with the police and the vehicle inspection agency, could target more foreign lorries in terms of safety and drivers’ hours, given the enormous number of accidents that those lorries cause on our motorways?
My Lords, I will represent his views strongly to my right honourable friend the Chancellor of the Exchequer, because I am always in the market for expanding the scope of my department. One thousand and seventy-two traffic officers patrol 1,759 route miles of motorway, so this is a proportionate service. By comparison, for the railways there are 3,236 British Transport Police officers and police support officers, who cost £271 million. That, of course, is a long-established service, which keeps the railways running. Therefore, it looks to me as though we provide a proportionate service to keep the traffic moving. However, my noble friend is right: there are continuing issues of ensuring that HGVs abide by the law and in particular this serious issue that we face on the roads of overseas HGVs being fully compliant with UK safety regulations.
My Lords, will the noble Lord care to reflect on the fact that over the past 10 years this House has passed legislation apart from that to which he referred—namely, that setting up police community support officers—and that each time we have been told that police will be able to concentrate more of their effort on catching criminals? However, it appears to me that every time more people are put in, the police become steadily less visible. Will the noble Lord look at that?
My Lords, the traffic officers are extremely visible, so much so that the noble Lord, Lord Trefgarne, is keen that they should be removed from the motorways. Visibility is not an issue here; the issue, which was properly debated by the House, is whether it is right to have a class of officers who are capable of dealing with traffic incidents—most of which are fairly minor, but require support to get the traffic moving again—rather than to devote police time to managing these incidents.
My Lords, in reality, as most of us know, traffic officers are the only uniformed presence on the roads, as police patrol vehicles are almost non-existent. Given that criminals use cars all the time on the roads, does the Minister foresee an extension of police powers to traffic officers, as discussed, or will he press for a more obvious police presence?
My Lords, following on from that question, will my noble friend urge chief constables to police more consistently? It appears to me that, as has been suggested, there is a bit of a postcode lottery. Policing is more than about reducing accidents, although that is important; it is about stopping terrorists and serious and organised crime. Will he urge chief constables to be more consistent?
My Lords, this Question is about traffic officers. Their whole purpose is to provide a uniform system across the motorway network in England. The Traffic Officer Service has provided that to the benefit of motorists. Surveys find the Traffic Officer Service to be highly popular with motorists.
My Lords, I am glad to be able to give the noble Baroness those figures. In the past two years alone, the proportion of incidents that have been cleared up in less than 40 minutes on heavily trafficked routes has risen from 76 per cent in December 2006 to 91.2 per cent in December 2008. The proportion of incidents cleared up in less than 90 minutes on such routes has increased from 90 per cent in December 2006 to 96.8 per cent in December 2008. I take that to be a vindication of the presence of the Traffic Officer Service.
Assisted Suicide: House of Lords Judgment
My Lords, the judgment in this case concerned the exercise of prosecutorial discretion, which is a matter for the Director of Public Prosecutions. In accordance with the judgment, he has published an interim policy for prosecutors setting out the factors which might be relevant when deciding whether it is in the public interest to prosecute someone for assisting a suicide. It is currently the subject of a public consultation, and the finalised policy is due to be published in spring next year. It is not appropriate for the Government to seek to influence the exercise of this prosecutorial discretion.
My Lords, I thank my noble friend for that reply. Does he agree that despite the humane attempts by the Law Lords and the DPP to clarify in a sensible way the existing law, it is inevitable that Parliament will need to come back to this issue? Does he further agree that progress in Parliament on clarifying the law on assisted dying might be improved if there were some kind of independent commission—dare I say, a royal commission?—to look dispassionately at the evidence to help Parliament in its deliberations?
My Lords, the Government believe that any change to the law in this area is an issue of individual conscience and, of course, a matter for Parliament to decide. We debated this issue in this House on a free vote on 7 July last and came to a certain conclusion. We think that it is more appropriately dealt with through a Private Member’s Bill and, indeed, I hear that there is a possibility that in another place there may be a couple of Private Members’ Bills that touch on this very sensitive topic. As to whether there should be a royal commission or anything like it, that is an idea that I can take back.
My Lords, the Minister knows that the Director of Public Prosecutions has to consent to a prosecution. Can he give the House an assurance that the Director of Public Prosecutions will take personal decisions in the exercise of his discretion and will personally deal with these matters? Looking at the document that has been produced, the handling arrangements within it suggest that the head of the Special Crime Division might take these decisions.
My Lords, does the Minister not agree that there is a faint irony in that, in the case of Purdy, the director through his learned counsel argued most strongly against the issuing of any specific guidelines? Furthermore, does the Minister agree that central to the whole question of the exercise of formal criteria in relation to prosecution is a rigorous and wide-searching inquiry of investigation into each individual case? In those circumstances, will additional personnel with adequate expertise and experience, be they in the police service or in the Office of the Director of Public Prosecutions, be appointed to carry out this massive task?
My Lords, I cannot say that that will necessarily happen, although I can say that the director has done what he was asked to do by the House of Lords Judicial Committee—that is, to draw up guidelines both for and against prosecution. He did that within two months of the judgment of the House of Lords Judicial Committee and he is to be applauded for doing so.
My Lords, do Her Majesty’s Government agree that, in drawing up the guidelines for the application of the law prohibiting assisted suicide, the Director of Public Prosecutions must take care not to be seen to condone assisted suicide or to produce a set of rules for breaking the rules?
My Lords, I am quite sure that the director is aware of that. Of course, it is not for him to change the law—not that he has any intention of doing so—nor can he give any prospective immunity from prosecution. He has merely drawn up these guidelines to clarify the factors for and against prosecution, precisely as he was asked to do as a result of the judgment in the Purdy case.
My Lords, does my noble friend agree that one of the most helpful things in the interim policy is the attempt to draw a distinction between what one might describe as compassionate assistance and malicious assistance, although that would clearly be difficult to prove in a prosecution case? Does my noble friend agree that this might be precisely an area where the kind of independent inquiry suggested by my noble friend who asked the Question would be very useful?
My Lords, that area could indeed be something that an inquiry could look at but there are many other areas in the arguments both for and against prosecution that any such inquiry would want to look into. However, I shall take back the point that there should be such an inquiry.
My Lords, I think that it is the turn of the Conservatives.
My Lords, does the noble Lord agree that this is not just a question of rules against breaking the rules but a question of flexibility in the judgment of someone in charge of the whole situation? On this occasion, the attitude of the Government appears to be totally correct.
Tax Returns: Postal Strike
HMRC will treat as delivered on time any paper tax return for 2008-09 delivered by hand to an HMRC office by Monday 2 November. HMRC will also accept the proposed postal strike as a reasonable excuse for failing to file by the 31 October deadline but customers will need to be able to show that they posted their returns in good time. If they can do this, they will not have to pay a filing penalty.
My Lords, I declare an interest as one of the many thousands who will be filing a paper return. From what the Minister has said, if the counter services are not on strike, it will be possible to get a certificate of posting, which is a free service, and that that will be accepted as proof of posting in time. What about those people who have already posted their returns and are simply not getting anywhere? When they phone up, they are told that their return has not been received. I am still waiting for post dating from early September which I have not received.
My Lords, the noble Baroness is certainly right in her first contention that returns can be accepted in the offices, as I have indicated, up to Monday 2 November. On the other point about postal services I have indicated that, where an individual is able to establish that the return was posted in good time, the Inland Revenue will certainly take account of that fact and the individual will not be subject to any penalty. However, the House will recognise that the issue is governed by statute and therefore the degree of flexibility for the Inland Revenue is limited.
My Lords, does the Minister accept that the problem raised by the noble Baroness does not apply only to income tax returns? For example, people paying credit card bills by post could well find that their payment arrives late and that they are stung for a huge penalty by being even a day or two late through no fault of their own. Will the Government speak to the principal credit card companies and ask them to draw up guidelines which individual customers might be expected to follow? If he is telling us that we should register the delivery of such items at a post office to prove they have been posted by a certain time, customers would find that extremely useful advice.
My Lords, I always assume that these exchanges in the House are communicated to the whole of the population, so the advice has already been tendered. The noble Lord will recognise the obvious point that, so far as HMRC is concerned, the Government have the most direct responsibility; we have indicated how we expect HMRC to discharge that responsibility. As regards credit cards, those are private transactions. We will look at advice but the noble Lord will be all too well aware that that is a matter between the private citizen and the private company concerned.
Well, that is against a background of Parliament making it absolutely clear that taxpayers have an obligation to make their returns on time. That is statute; that is the law which this House and the other place have established. The Inland Revenue is obliged to work against that background.
My Lords, as we have time on our side, will the Minister accept that my late noble kinsman and my late noble relative on their mutual honeymoon found a sub-post office in rural Wales where a notice in the window said: “Letters for the 5.30 post must be posted by six o'clock at the very latest”?
My Lords, further to my supplementary question, in answer to which the Minister said that people would be able to hand-deliver these items, what publicity will he give so people know where the local centres for hand-delivery are? Many people doing paper returns are not computer-literate and do not have access to a computer to check those records.
My Lords, certainly that will be communicated online for the benefit of those who are computer-literate. As far as the rest of the population is concerned, I took steps to identify how difficult it was for citizens to comply with this opportunity, although at this stage we are talking about tax returns that are coming right up to the margin. From the extensive list of Inland Revenue offices, I can see that every town with a population of about 60,000, or even smaller, has an office where this obligation can be complied with.
My Lords, when I asked about the prevalence of offices, Her Majesty’s Treasury had not struck me as the most obvious point of call. I would be loath to suggest that the noble Lord is seeking an additional privilege for Members of this House over the ordinary taxpayer. Probably he would have to move a little further up the road than Whitehall to comply with this request.
Provision of Services Regulations 2009
Company, Limited Liability Partnership and Business Names (Sensitive Words and Expressions) Regulations 2009
Company, Limited Liability Partnership and Business Names (Public Authorities) Regulations 2009
Legislative and Regulatory Reform (Regulatory Functions) (Amendment) Order 2009
Motion to Refer to Grand Committee
Driving Instruction (Suspension and Exemption Powers) Bill
Order of Commitment Discharged
My Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee. Unless, therefore, any noble Lord objects, I beg to move that the order of commitment be discharged.
House Committee: Third Report
Motion to Agree
My Lords, today the House is being asked to approve revised guidance and explanatory notes for Refreshment Department functions as proposed by the Refreshment Committee and approved by the House Committee. The Refreshment Committee initiated its review to make the guidance clearer and to ensure that it stood comparison with the guidance in the House of Commons. The resulting guidance and explanatory notes are set out on page 4 of the House Committee report. The one significant difference from the existing guidance is that Members will not be able to sponsor promotional functions for companies in which they have a direct pecuniary interest.
I believe that the revised guidance is much clearer than the existing guidance and that Members will find the new explanatory notes helpful. Along with the policy of publishing details of all functions online as a matter of course, the guidance will result in a robust and transparent system in which both Members and the general public can have full confidence. I beg to move.
Royal Mail: Industrial Dispute
My Lords, I wish to make a Statement about the decision of the Communication Workers Union to take national industrial action later this week.
No one is in doubt about the damage that such industrial action will cause, but those who advocate strike action have not been clear about why it is being threatened. The dispute at the Royal Mail is about modernisation, which has been the subject of localised strikes, particularly in London, for many months.
We know from the Hooper review on postal services about the company’s need to change and reform in the face of a postal market being transformed as people switch to text, e-mail and direct debit, and as the growing area of mail, which is parcels, has a variety of alternative operators from which to choose. Royal Mail has to respond to the fact that 10 million fewer letters are being posted each day than three years ago and total mail volumes have fallen by a further 8 per cent in the first half of this year. In other words, if it stands still, this company faces terminal decline.
Following a previous national strike two years ago, in 2007, the union—the CWU—and management reached a national agreement on pay and modernisation. That agreement set a framework of four phases for bringing essential change to Royal Mail. The first three have been introduced throughout the country, but are being resisted in some places, as I will come to shortly. The changes have involved the introduction of more walk-sorting machines and new working practices, including employees being expected to do the full number of hours that they are paid to work.
Phase 4, the next phase of modernisation, is yet to be agreed in substance, rather than outline, and will be about a new framework for improving industrial relations. This will include introducing walk-sequencing machines to sort the postal delivery round and developing new business opportunities, along with a new system for rewarding employees.
In the majority of Royal Mail’s workplaces, Phases 1 to 3 of the national agreement have been implemented without any local industrial action being mounted. Outdated working practices have been replaced and efficiency is being improved. But in other parts of the country, most notably in London, there has been repeated non-co-operation and industrial action to frustrate the agreement’s implementation.
It is claimed by union representatives that in London management is unilaterally imposing change that goes beyond the 2007 agreement’s first three phases. Management contests this, pointing out that London is being asked to accept only what everyone else in the country is delivering under the first three phases. These local disputes have now escalated into the threatened national strike.
I very much regret what is happening. Candidly, I think it is totally self-defeating for our postal services and those who work to deliver them. Taking industrial action will not resolve this dispute. It will serve only to drive more customers away from Royal Mail. In the delivery of parcels—where there would otherwise be a prospect of growth— Royal Mail’s reputation for reliability could be irrevocably damaged, and in letters it will lead to a further twist in the downward spiral of mail volumes.
Business will be quick to recognise that while you can picket a delivery office to stop the service or refuse to deliver letters, you cannot picket the ever-present internet. Royal Mail’s small business customers will look on with anger and exasperation. Just as there are signs of the economy recovering and the prospects for their businesses are improving, strikes now will set them back and put their businesses in jeopardy. Royal Mail’s finances will be plunged into the red. Last year, the company, out of a £6.7 billion mail business turnover, made less than 1 per cent profit. One thing this company cannot afford is strikes and industrial action. Change in a big organisation is never easy, but for the Royal Mail it is unavoidable.
Let me make it clear that contrary to what some may say, the dispute is also not about pensions. The trustees are engaged in their periodic assessment of the pensions deficit and, lest there be any doubt, let me make it clear: the Government’s policy on the pensions deficit will not be dictated by strike action. The Government were prepared to take on the pension deficit as part of a package of modernising measures set out in the Postal Services Bill. Sadly, the CWU did not support those proposals. When it comes to financing, the Government and the taxpayer have not held back. We have made available £1.2 billion to finance a modernisation and investment programme, and that remains on the table.
We are, of course, in frequent contact with both management and the union, and they have continued talking today. We strongly welcome that. Our message to them has been clear: put your customers first. Strikes are not the way to resolve differences or safeguard the future of our postal services. The Royal Mail needs management and unions to have a relentless focus on turning it into an efficient, modern postal company, protecting as many jobs as possible and providing customers with the services that they need. They should put behind them, once and for all, the endless cycle of disputes.
I will, of course, continue to encourage a settlement, but I cannot impose good industrial relations on the company or disinvent the internet. An independent third party may well be needed to help the two sides to resolve their differences. ACAS is engaged but we have to be realistic: it will be far easier for ACAS to play an effective role if the threat of a national strike is lifted.
The Government are ensuring that vital services to the public, especially those who are most vulnerable, are maintained. The Department for Work and Pensions will, if necessary, implement plans to ensure that the small minority of pensioners and others on benefits who still receive their cheques in the post will be able to pick them up from their nearest post office. If there were prolonged disruption, the Department of Health and NHS trusts would, if necessary, use alternative arrangements to transport appointment notifications, blood samples and test results.
I urge both sides to make every effort to avoid damaging industrial action and to resolve this dispute. That is what is in the interests of the Royal Mail, its employees and its customers.
I commend this Statement to the House.
My Lords, I welcome the fact that the Secretary of State is here today to make the Statement, but my, what a bleak picture he paints. We share his hope that this unfortunate dispute will be resolved quickly and with as little damage as possible to the Royal Mail. He did not mention the fact that the Communication Workers Union has invented a new pretext for industrial action: namely, the decision of Royal Mail management to take on more temporary workers than usual this autumn. Quite rightly, managerial decisions are managerial decisions, but anything that reduces inconvenience to the customer is surely to be welcomed.
I note that the Secretary of State uses the language of regret. Sadly, as I have pointed out previously, he cannot bring himself to apologise for 12 years of apathy and inaction on the part of the Government. These strikes against modernisation are the inevitable outcome of that ministerial vacillation which he vainly attempted to end.
There is far too much finger-pointing in politics, but we are here to hold Ministers to account. Everyone agrees with that. Although the Secretary of State's words will be carefully weighed in the official record, as one would expect, we could all hear in his voice in this Chamber today, and see etched on his face, the raw frustration of someone who knows what needs to be done but has not been allowed to get on with the job.
It is now almost a year since the publication of Richard Hooper’s authoritative report on the future of postal services in the United Kingdom. In response to that excellent report, the Secretary of State produced a Postal Services Bill in February, closely modelled on the Hooper proposals, and we in this House spent five days in Committee and a day on Report during March, April and May. The Secretary of State rightly observed that all three parts of the Bill—the injection of private capital and expertise, a rescue package for the pension scheme, and regulatory reform—had to be taken together or not at all. As he will recall, he said at Second Reading that the Royal Mail and its people,
“need the full package of measures we are proposing”.—[Official Report, 10/3/09; col. 1067.]
The Secretary of State was gracious enough to remark that, in due course, our efforts in this House had helped to improve the Bill considerably, in particular by opening the door, as we did, to the chance for employees to own shares. Yet on 1 July, he came to this House to advise us that his and our efforts had come to naught. The Postal Services Bill has now been dumped, as I understand it, into cold storage by a Government of the walking dead.
The only Statement that is worth the Secretary of State making to this House today is one to the effect that he will personally ensure that the Postal Services Bill proceeds to Royal Assent as soon as possible. In speech after speech, he has emphasised the urgent need for action on the Royal Mail and rued the fact—I remember him doing this vividly—that legislation to modernise the organisation had not been brought forward 10 years earlier. The Conservative Party has supported him all the way, both here and in another place, and I am personally authorised to reassert here, today, that our views have not changed and will not change. We all know that the views of the Secretary of State have not changed. How it must pain him to see this country transported back into the dark days of the 1970s when trade union officials could pay a visit to No. 10 and stop a major industrial reform in its tracks. The sad fact is that, as it succumbs to strike action, the Royal Mail finds itself unable to deliver, and the Secretary of State cannot deliver either.
I suppose this is all too symbolic of a wider failure in government. I also begin to suspect that many of the Secretary of State’s colleagues are behaving like an army in chaotic retreat. It is little wonder that the employees of the Royal Mail are unsettled. Their organisation is beset with uncertainty, their pension scheme is on the verge of insolvency and the Government offer nothing but regrets. Yes, this strike is suicidal, but it is a case of assisted suicide. The Conservative Party takes nothing for granted, but the Labour Party seems already to have the cloying smell of defeat in its nostrils. We all sense the Secretary of State’s simmering frustration, but I do not think he is a man to give up so easily, and I am sure he does not share the wan, supine, feeble defeatism that so many of his colleagues evince about the future of the Royal Mail. To use his words again, the Postal Services Bill,
“will lead to a new, modern, relevant and, above all, successful framework for the future of postal services in this country”.—[Official Report, 10/3/09; col. 1133.]
Where is that optimism now? Where are these sunlit uplands? Today, we have heard an apology of a Statement when what we deserved was a Statement of apology. The Royal Mail is now in crisis, and I reaffirm what we on these Benches have always said: the Secretary of State may not be able to count upon the support of his own party in the other place for the Postal Services Bill, but I repeat today the unstinting support from the Conservative Party for the passage of that legislation. We hope to see it complete all its stages in another place at the earliest opportunity because we are proud to support the conclusions of Richard Hooper and the Postal Services Bill. It is just very sad that so few of the Secretary of State’s colleagues can make the same assertion.
My Lords, as is so often the case, the noble Lord, Lord Hunt of Wirral, clearly hit the nail on the head when he described the position in which the Secretary of State now finds himself.
I thank the Secretary of State for the Statement, which gives an excellent summary of the problems arising from this strike. He gives the game away towards the end of the Statement when he urges both sides to make every effort to avoid damaging industrial action and resolve this dispute. Of course, he already said in his Statement that he will continue to encourage a settlement but he cannot impose good industrial relations on the company.
The Government’s problem now over the strike is the antithesis of Baldwin’s description of the newspaper proprietors of the 1930s: that they had power without responsibility. In this case, the Secretary of State, in the eyes of the public, has responsibility without power. Quite rightly, he will take the view—no doubt he has said so—that the strike is nothing to do with him: that this is for the management of the Royal Mail to deal with, and that it is dealing with it as best it can. Given that that is clearly the Government’s position, I have only two specific questions on the strike. I will then get into the wider issues, which the noble Lord, Lord Hunt, has raised.
The Secretary of State’s statement that it will be far easier for ACAS to play an effective role if the threat of a national strike is lifted ought to be a test for prospective civil servants when they take their Civil Service exams: how to write a euphemism. What that actually means, as I understand it, is that, contrary to what the union wishes—to involve ACAS—the Royal Mail management is not prepared to agree to ACAS being involved unless the threat of the strike is lifted. I would be grateful if the Secretary of State could explain that euphemism and confirm that that is currently the case.
The second point about the strike follows on from the interesting debate, in which the Secretary of State did not participate, on the Question from the noble Baroness, Lady Gardner of Parkes. There is a lot of concern about Treasury deadlines being met on income tax returns, and about credit card deadlines, as my noble friend Lord Newby indicated. The general sense seemed to be that, so long as these things are posted before the required date, all will be well if they do not arrive. However, as I understand it—no doubt the Secretary of State will confirm this—all post boxes will be sealed up if there is a strike and it will not be possible to post anything. I am therefore not quite certain how the answers that were given can actually meet the point that is being made. Perhaps the Secretary of State will deal with that in his final remarks.
There is a wider point to make, and the noble Lord, Lord Hunt of Wirral, was quite right to raise it. Those of us who considered the Postal Services Bill in this House are well aware of the Secretary of State’s commitment to the Bill—a commitment that was not, if I may say so, entirely shared by his colleagues right at the back of your Lordships’ House; it clearly was not shared by a large number of his colleagues in another place, which is why the Bill had to be withdrawn. However, given that we are in this strike situation, it behoves him to tell us what the Government propose to do about the key issues in that Bill.
What does the Secretary of State propose to do about the pensions deficit? There are some mealy-mouthed words in the Statement about the trustees looking at this, but we all know that there is a massive pensions deficit. What are the Government going to do about it? What do they think will happen to the modernisation process, which fed into the government proposals to bring in a minority stake? Will the Government endeavour to bring back a Bill to enable third parties to come in with capital and their expertise to improve the modernisation process, or has that proposal been dropped? What are the Government going to do about the changes in regulation that were enshrined in the Bill? I think that everyone, across the parties, agreed with the proposed changes of regulation. I understand that the CWU was keen for that to be brought in. What are the Government going to do about that?
Finally, and most crucially, the Postal Services Bill enshrined in legislation, for the first time, confirmation of the universal service obligation. Are the Government, without that Postal Services Bill, still totally committed to the universal service obligation? What are they going to do to ensure that when we get past this strike that USO is enshrined in our life?
I am grateful to the noble Lord, Lord Hunt, for his support, if support it was. We all agree that none of us would like to be in the place in which we find ourselves. As a Government we would like to have successfully taken through the Postal Services Bill. We remain of the view that Hooper got it absolutely right. In recent time, I have not read such a well analysed, well argued report of its kind with recommendations that were so obviously, patently correct for the future of the Royal Mail, which is precisely why we introduced the legislation in the first place. Had we done so, and were we successful in introducing a minority strategic partner from the private sector into the Royal Mail, I have no doubt that that would have introduced a new perspective to this company, which would be linked to the real world in which people have to work hard and flexibly for every customer and every job. That is what people have to do when they are running a business rather than a social service, and the Royal Mail is a business. It is not a social service. It operates in a market and faces competitors.
The Postal Services Bill, if it had been enacted, would have helped to pave the way for a transformation of this business. But, of course, as the noble Lord knows, the state of the markets defeated us. In reading my Financial Times today, I notice that the Conservative opposition and their spokesmen are making it clear that they would not rush to introduce this legislation were they to be elected. I gather from that newspaper that they would wait and see, and test the markets first, before deciding what course of action to take. Read the Financial Times. We have to live in the real world. The fact is that for all the considerable, misconceived and misplaced opposition that was mounted to this Bill, at the end of the day it was the markets that defeated us and not the political opposition.
The noble Lord referred to the casual workers as a cause for further grievance. I should put it on record that the Royal Mail has given assurance that the 30,000 workers are being recruited on a casual basis and are, therefore, being recruited legally. The temporary agency workers being employed are part of the Royal Mail’s usual seasonal recruitment and are not recruited directly to perform the duties of those taking place in the strike. It is as well to clarify that before I am questioned on it further.
In response to the noble Lord, Lord Razzall, I am sure he would agree that it would be very difficult for ACAS to become engaged in this dispute—ACAS would need to be invited in by both sides—while the threat of a national strike hangs over the company as a whole from the union side. For ACAS to mediate and then arbitrate, it would be reasonable to expect the threat of a national strike to be lifted. Of course it will be difficult for many people who depend on the postal service should the strike occur; that is why we deplore the prospect of it happening. But some postal services will be available because not all post boxes will be sealed and the post offices will still be open.
On the pension deficit and the regulatory changes, I will say this. In our legislation, we as a Government were prepared to take on the pension deficit and to make the regulatory changes, but all of us were agreed that it could be done only in the context of a real and earnest commitment to modernisation and change in this company. The fact is that we cannot, I am afraid, help Royal Mail unless the company and its workforce are prepared to help themselves. That is the reality, and we cannot get away from it.
I offer my sympathy to my noble friend, as no one has done more to try to improve the prospects of Royal Mail. I also say to him that the sanctimonious Schadenfreude that we have heard from the Benches opposite is no comfort or support to anyone on this side of the House. The case for reform remains. The point about pensions is equally valid now as it was then. Given the current climate, were there to be a change of government, I do not think that there would be anything like the support for the pensioners and potential pensioners of Royal Mail that this Government are offering.
Can I just say this to my noble friend? While many of us support him in his endeavours, it would be stretching our loyalty further than many want to go if we were prepared to support and sanction the strike-breaking on the massive scale that is envisaged by the recruitment processes that have been indicated. I know that this is an industrial union and as a consequence it is often very blinkered, but let us not abuse it. The union has been a friend of the Labour Party and the Labour movement in the past. These are our people and we have to give them a chance to come to a deal. I hope that ACAS will be seen as an opportunity and not an obstacle in the resolution of this dispute. I like to think that my noble friend will support me and others who want change and want it quickly at this time.
My noble friend has been utterly consistent in his calls and demands for change, reform and modernisation in Royal Mail. He contributed to many of our debates during the passage of the legislation and I commend him now as I did then for his commitment to a prosperous, successful and viable future for Royal Mail, which, as he has always argued, must come with change and reform, not without them. On his point about casual workers, so far as I can see and have heard from the Royal Mail management, I do not think that there is any desire to recruit an army of strike-breakers. I point out to him that Royal Mail is at liberty to recruit directly employed casual workers—it does so every year at this time—and it is doing so in greater numbers because, if the strike goes ahead, there will be considerable backlogs to clear. It is also allowed to recruit temporary agency staff via an employment business so long as they do not do the work of striking workers. I think that that is the valid point.
My Lords, the incredible aspect of this situation is the failure of both sides to make a simultaneous declaration of, first, the strike being suspended and, secondly, the employers referring this to arbitration. Why cannot a simultaneous declaration be made by both sides?
I sympathise with my noble friend’s frustration. As I set out in my Statement, the point is that there is a national agreement on pay and modernisation which it is reasonable to expect both the management and the workforce and its union to implement consistently. I would like to underline this point: in the vast majority of areas and in union branches across the country, phases 1, 2 and 3 of the national agreement are being implemented. There is no dispute; there is no strike action. They are implementing it—if not enthusiastically, then certainly willingly—because they see that there is no alternative for the future of their business. Unfortunately, a minority of areas and parts of the union—more in London than anywhere else—have decided that they do not want it; they are trying to unpick the first three phases and prevent the agreement from going forward to implementation in its fourth phase.
We have reached a situation where the majority of areas and branches, and the national leadership of the union, have to take on those among their own ranks who are very recalcitrant, have dug in and have so far refused to go along with what the majority want in their own union. That has to be resolved and sorted out, and very quickly.
My Lords, anyone who cares about the future of the Royal Mail must share the feelings of exasperation to which the Minister gave voice in the Statement. Some 36 years ago, when I was Minister of Posts, matters such as regulatory practices, manning levels and the introduction of new technology were pressing hard on the management and union in the Post Office. In his Statement, the Minister referred to the possibility of Royal Mail being in terminal decline. He also referred to the need to take care to look after the needs of customers. In the event that this proves terminal for Royal Mail, what contingency plans have the Government or the management of the postal services put in place or developed to ensure that customers’ needs are fully met?
My Lords, I and other members of the Government are not prepared to throw in the towel and accept that the only thing we can do in respect of Royal Mail is to manage its decline. We have not reached that stage and the majority of the workforce and the union have not reached that stage either. That is why they are co-operating, as I said, in introducing changes such as more walk-sorting machines and new working practices so that employees work all the hours for which they are employed. It is wrong to present this situation as though it were an entire workforce and an entire union that have washed their hands of change; they have not. None the less, there is a hardcore group of those who do not accept what has been negotiated nationally on their behalf. It is they who have to be persuaded before, as the noble Lord said, the downward decline of the business makes it impossible to save.
My Lords, I declare an interest as a member of Unite, which has members in the Royal Mail. I welcome my noble friend’s Statement, particularly where he says that it is not in the interests of anyone for this dispute to take place. I also welcome his saying that he will do all that he can and play any necessary role to prevent it from happening. It is very difficult when negotiations are at this stage, but is he really saying that Royal Mail will not go to ACAS unless the threat of the postal dispute is withdrawn by the union?
The management of Royal Mail argues, not entirely unreasonably, that if it decided to go to arbitration with the threat of a national strike hanging over it, those circumstances would not be the most likely to lead to that arbitration being successful. Without speaking on behalf of the management, one does see its point.
My Lords, I am too long in the tooth to comment on the situation that we are in. After a lifetime of industrial relations experience, I think that sometimes things are said that can only exacerbate a difficult situation—but the Statement has been made, and I cannot sit here and not respond in the best way that I can. I declare my interest as a former postman, former union official and former chair of a Labour Party that was the custodian of manifesto commitments. I want to say one or two things before asking a couple of specific questions.
The noble Lord, Lord Hunt of Wirral, true to the form that he showed through the passage of the Postal Services Bill in this place, was straight—he said what his party believed in and what it would do. As I have said on previous occasions, I respect that; if you have a manifesto commitment that gets the support of the people of this country, you have every right to do that. I want to help him on the question of why people go on strike.
The Secretary of State has just said that this is not universal. Even in this day and age, in this economic climate and with the domestic pressures on people, almost 80 per cent of the ballot was in favour of a yes vote—not just from those in the pockets of so-called obstructionists, but throughout the country. Nearly 80 per cent have voted to support their union.
I shall give my noble friend an example. There is an office in this country, nowhere near the capital city, with six workers. They received their ballot forms and all six voted yes, in an area of high unemployment. I shall tell your Lordships why. There is a 20 year-old woman employed in that office who has a child. She did her job but was told to go out, stay out and do more. When she said, “I’ve got to go to pick up my child at the proper time”, they said, “You stay out until you’ve completed what we’ve told you to do. Otherwise go out and stay out; you’re fired”. That is part of the reason for the almost 80 per cent vote.
Your Lordships have heard the union spokespeople say that it is not necessarily about money; it is not. It is not necessarily about modernisation, because the union has agreed to that. What is happening, and this House should know it, is the downright bullying of people. If anyone is in any doubt, please ask me for details about specific instances where management is bullying staff at present. That is why we have this industrial unrest.
The Secretary of State mentioned the Hooper report. At the end of that long session of the Postal Services Bill, there was near unanimity on two sections: the pension deficit and the regulator. The point was the sale of shares, which was in direct contradiction of a manifesto commitment by the Government’s party. It is not just the political forces—I see that the noble Lord, Lord Davies of Oldham, wants to stop me. I asked the Secretary of State throughout that debate what he was doing about this. It is the same management that is controlling this dispute that he had very little confidence in when he read the Hooper report. He should get on and sort out the regulator, do something about the pension deficit in a real way, as the noble Lord, Lord Razzall, has asked for, and let these people get on with what needs to be done.
Finally, will the Secretary of State tell me the names of the workplaces where the walk-sorting machines are working? I have asked this several times before, and I ask it again today.
My Lords, the point that I have been trying to make throughout is that there are many parts of the country, probably the majority of them, where mechanisation, new technologies, automation and changes in working practices have been introduced. I accept that that is happening. However, in other parts, I am afraid that there is what I can describe only as stiff, if not obdurate, resistance on the part of the minority of the union, its areas and branches to seeing this national agreement implemented. As a result of that, a whole series of localised disputes has escalated and produced the threat of a national strike at the end of this week.
Of course, the Government do not condone bullying. I have asked the management about this and whether it has received reports of specific instances. It says that it has not. I have asked it to repeat the request to the union, so that these instances can be properly examined. I believe that, at the last time of asking, no instances were forthcoming. If there has been harassment, of course we do not condone it. However, I must say frankly to my noble friend that if there is an instance of harassment in a locality, you do not need a national strike to sort it out, with all the calamitous damage that would be done to the business because of its lost custom and the escalating number of lost jobs that would result from it.
My noble friend said that 80 per cent of those who voted were in favour of strike action, but it is also possible, as he knows, to count the votes in a different way. If you count those who were against the strike action and those who chose to abstain or withhold their vote from the ballot, you find 60 per cent against. So there are ways and ways of looking at these results and counting the figures.
Throughout all the debates in this House with my noble friend on the Hooper report and the legislation, he always said that the union was up for change. The localised strikes since then and the national strike now send exactly the opposite message. That is what the union has to take into account and avoid; it has to send a different message to its future customers if it is going to turn around its business and secure as many jobs as possible in the future.
My Lords, seeing as the Secretary of State is not receiving too much help from his Back-Benchers, perhaps I may offer my support for the line that he is taking. My noble friend had responsibility for the Post Office 35 years ago; it fell to me 25 years ago—so we all draw the short straw in our various careers. I, too, was faced with a national strike. The difference between now and then was that the Union of Communication Workers then resisted the national strike. It resisted the pressure of the militants and the handful of London sorting offices whose vested interest was disruption; it stood out against them. I wish that it would do that again now, because I am quite sure that this does not characterise the true nature of the Post Office.
I echo my noble friend on the Front Bench in saying that, by withdrawing the Postal Services Bill, the Secretary of State threw away a weapon that he had in his hand. His explanation was not entirely complete when he said that it was entirely down to the market; I think that it was the opposition of the union and certain Labour Back-Benchers. It was a weapon thrown away. He might consider using it again in some way by assuring us that that Bill is not entirely dead.
My Lords, I am a great supporter of the Post Office. I look on it as a social service even as much as any other type of service. I do not think that the Secretary of State was in the House when I asked my Question about the effect on people filing paper tax returns, of which I am one of the many thousands. The Answer that I was given was that you would be able to hand in your papers at a post office and have a stamp put on them. I presume that the return would have to be contained within the post office until such time as the strike was over. However, I am more concerned about those people who have already put their tax returns into post boxes, of whom I am not one. Am I correct in thinking that no date stamp goes on them until they are processed? I am getting post now, if I get it at all, that is weeks old and the postmark on it is entirely different from the date inside the letter. How will the Inland Revenue be able to assess those people and be fair to them?
Of course, I quite understand and sympathise with the noble Baroness’s point of view and predicament, but HMRC will be able to tell where strike action has occurred and where it has affected the collection and onward dispatch of its forms. I think that she and other noble Lords can rely on the understanding and sensitivity that we have come to associate with HMRC, in what, let us hope, is still an avoidable storm.
Policing and Crime Bill
Committee (5th Day)
152ZA: After Clause 48, insert the following new Clause—
“PART 4APolice bailPolice bail before charge
(1) The following provisions are repealed—
(a) section 10 of the Police and Justice Act 2006 (c. 48) (police bail); and(b) Schedule 6 to that Act.(2) Article 3(i) of the Police and Justice Act 2006 (Commencement No. 2 Transitional and Saving Provisions) Order 2007 (No. 709 (c. 30)) (S.I. 2007/709) is revoked.”
My Lords, last time we were in Committee on this Bill, we were discussing injunctions and the effect that they could have on the liberty of innocent people. We debated the issue at length. These amendments relate to a different interference with people who have faced no charge and no trial process. The amendments are to enable discussion of those issues and to suggest two particular amendments that the Government might feel inclined to take up.
These amendments were provoked by events in April, when two protestors from Climate Rush, the climate change organisation, glued themselves around a statue in Parliament. In fact it was a statue of an ancestor of my noble friend Lord Falkland. They glued themselves to each other; there was no damage to the statue and no other damage. They were arrested under the Serious Organised Crime and Police Act 2005 and were given pre-charge bail conditions which stipulated that they may not talk with one another, even though they were clearly friends, and may not come within l kilometre of Parliament. The difficulty with that is that they were treated as guilty of something before that had even been established.
These amendments deal with three kinds of bail: first, pre-charge bail at a police station, when there is enough evidence to charge under Section 37(7) (a) or (b) of the Police and Criminal Evidence Act 1984; secondly, pre-charge bail at a police station when there is not enough evidence to charge; and, thirdly, “street bail”—pre-charge bail given by a constable away from the police station under Sections 30 to 30D of PACE. I am particularly concerned about the power to apply conditions to pre-charge bail, because pre-charge bail conditions are control orders by another name.
The power to impose bail conditions has grown steadily over recent years. They were introduced under the Criminal Justice and Public Order Act 1994. I would not dispute the fact that bail conditions for serious crimes are necessary. However, these powers were extended to pre-charge bail under the Criminal Justice Act 2003—but only in cases where there is sufficient evidence to charge an individual, so that was still probably within the bounds of reasonableness. Finally, the Police and Justice Act 2006 extended it to all cases where a person is bailed before charges are brought, even when there may not be sufficient evidence to charge them, including street bail.
The Minister will remember that, in June, I tabled a series of Written PQs to ask how often pre-charge bail conditions are used and how often successful applications are made to vary conditions. He may remember his reply, that:
“The information requested is not collected centrally”.—[Official Report, 23/6/09; Col. WA265.]
However, I did some research and it seems that the police are using these powers more, because at Westminster magistrates’ court there have seen an increasing number of applications to vary pre-charge bail conditions in the past six months. That suggests either that more conditions are being imposed or that more unreasonable conditions are being imposed, as in the example I gave of the two friends who were not even able to talk to each other after being arrested.
The Westminster magistrates’ court also explained that no legal aid is available for applications to vary pre-charge bail conditions, so it is very expensive—indeed, it is impossible for people of limited means—to try to change the restrictions. Neither is there a statutory time limit on how long such conditions will last, nor any explicit restrictions on the sort of offences that they can apply to. The minimum restrictions that the Committee should expect the Government to put into statute are the length of time the conditions would last, and explicitly on applicable offences. A date must be given for a return to the police station, with conditions applying until that date. However, if the subject returns at the appointed date and the police have not completed their investigations, the conditions can be extended.
I turn to street bail, which is a particularly worrying aspect of this. When bail is granted at the police station, the custody sergeant takes on a semi-judicial role in approving bail conditions. A custody sergeant has much more expertise and has had specific training, but an officer on the street is in the thick of it. He may not have had that training, and at that moment he may, indeed, not be able to make an objective judgment about the situation. It appears that some police forces agree with this assessment. Hampshire constabulary, for example, states in its procedural guidelines that,
“Whilst the legislation has been amended to allow for conditions to be imposed upon ‘street bail’ this facility is not available within the Hampshire Constabulary area and officers may not impose conditions on such bail”.
Hampshire police say that they made a strategic decision not to use the powers to attach conditions to street bail because, without extensive training, officers would not be able to use the power proportionately—a very telling statement, and one that I hope the Minister will weigh. The officer also thought that a number of other forces have made the same decision not to allow officers to apply conditions to street bail. Thus, by using these powers to curtail peaceful protest—an issue we shall come back to in discussing some of the amendments on protest—the Met are completely out of step with how other forces are acting.
My amendments put forward three different ways to deal with what is at present an unacceptable power. The common intention behind the three is to prevent the conditions from being used as a kind of improvised punishment or deterrence for people that the police simply feel are doing something wrong, instead of making them face a criminal charge and prosecution. Amendment 152ZB would limit the use of pre-charge bail condition to cases where an officer has reason to believe that a serious offence has taken place or is likely to do so.
These are important amendments. During the passage of the Bill that relaxed these provisions, my noble friend Lord Dholakia said:
“The conditions themselves could have a more severe impact on the suspect than any sentence imposed for the minor offence … there is a risk that these conditions could be used in lieu of a criminal charge and prosecution. If reasonable time limits were imposed, it would remove that risk, requiring the police to investigate the case as quickly as possible and to decide whether to charge the suspect”.—[Official Report, 4/7/06; col. 192.]
My noble friend was absolutely right. It is a pity that we did not manage to persuade the House of the validity of his argument. However, on the basis of the further examples that I have given, I hope that the Committee will now rethink the issue. I beg to move.
My Lords, the noble Baroness, Lady Miller, has set out her stall in her usual early afternoon extensive fashion. Therefore, I do not intend to speak beyond asking the Minister what I regard as a key question: have the Government any evidence of any inappropriate or disproportionate behaviour by the police in this regard? If he can answer that, I suggest that it would help the Committee no end.
My Lords, the noble Baroness and the Committee may be aware that the recent public consultation on the review of the Police and Criminal Evidence Act, known as PACE, recognised that bail at the police station was an area which would benefit from clarity of powers and the application of those powers. Therefore, I acknowledge that there is an issue here which needs examination, but I am unable to agree the proposed changes set out in these amendments. It is important that that examination is ongoing in discussions between the Home Office and the Ministry of Justice.
I recognise that some noble Lords, and people in the wider community, view the application of conditions to bail before charge as a restriction on the liberty of the individual. Moreover, those concerns are compounded by the fact that such restrictions are placed on the individual not by a court but at the discretion of a custody officer or, in the case of street bail, the arresting officer. However, we need to look at the benefits of going down this route. The purpose of bail pre-charge is twofold. First, it is to ensure that a detainee spends as little time as necessary in police custody; for example, while other avenues of the investigation are pursued. It also frees up police time. Secondly, it is to ensure that, so far as possible, a released person remains available to assist with the investigation and does not interfere with the investigation or otherwise break the law.
It is a matter for the custody officer to determine whether there is a case to answer and whether the suspect should be detained. That is determined on a case-by-case basis. Similarly, where a decision has been taken to detain a person, the custody officer and detention review officers will consider at regular intervals, as required by PACE, whether the grounds for detention remain.
Similarly, on the use of street bail, it is for the arresting officer to determine whether the person should be brought before the custody officer for a decision on whether he or she be held in police detention, or whether the person can be issued with bail on the street. The latter benefits the individual, as I have said. It also helps free up officer time in travelling to and from the station and keeps them on the beat—we have been pushing across the board to keep policemen on the beat for longer—rather than in the police station.
The noble Lord, Lord Skelmersdale, asked whether we had any evidence of inappropriate or disproportionate behaviour. We do not have any evidence of that at the moment although I note with interest the point raised by the noble Baroness on an incident around the Palace of Westminster, which I find surprising but I do not know the circumstances of the case.
Consideration of bail does not mean that the investigative process has been completed, but that other elements of the investigation can proceed without the need for the suspect to remain in detention. That has to be good for the person involved. The application of discretion by the custody officer or, for street bail, the arresting officer, is an important element of this process. We have no evidence of inappropriate use of this power. What the noble Baroness said about Hampshire police was interesting, but the input that I have received is that, overall, the police are keen on this process. There must be training for the police to be aware of how to deal with this. I am a great believer in allowing discretion to people such as custody officers and police on the beat. I look on the issue in military terms as mission command—allowing people to get on with the job. Generally, one achieves a good result when one provides overall guidance, monitors it, but lets people get on with it.
The custody officer has to consider on a case-by-case basis whether the person should be released on bail with or without conditions. The officer should consider whether it is necessary to attach conditions for the purposes of preventing that person from failing to surrender to custody; preventing that person from committing an offence while on bail; preventing that person from interfering with witnesses or otherwise obstructing the course of justice, whether in relation to himself or any other person; for that person’s own protection; or for his welfare or his own interests, if he is a child or young person.
Attaching conditions to pre-charge bail provides an additional opportunity for the person to be granted bail in situations where the custody officer may have some concerns. Removing the ability, as Amendment 152 Zulu Bravo proposes, to attach conditions to pre-charge bail, other than in relation to serious offences, may result in fewer detainees being released on bail. That would be an unfortunate by-product. That may well be an unintended consequence of the noble Baroness’s amendment, but it is likely to be the actual outcome. I hope that noble Lords will agree that release on bail with conditions is more preferable to that person remaining in the confines of a police cell.
If a person is not satisfied with the conditions attached to pre-charge bail, he or she may appeal in the first instance to the custody officer. They also have the option of applying to a magistrates’ court to ask for conditions to be removed or varied. I was not aware of the legal aid issue, which I should like to take away to think about, because I am not sure of the exact situation. Perhaps we may need to look at that. The current system, therefore, enables an officer to deal with the individual and their particular circumstances. That has to be a good thing. This amendment would remove that ability and use of discretion.
The timeframe of 72 hours proposed by Amendment 152 Zulu Charlie is highly unlikely to be operationally realistic. Bail can last for weeks, and sometimes months, depending on the nature of the investigation. The idea of a person going to and from the custody suite every three days for, say, two months, would not only involve significant police bureaucracy and resources but cause significant disruption and no doubt some antagonism for the individual.
Guidance on street bail, which the noble Baroness asked about, is available for officers when they are away from the police station. As a result of the PACE review, guidance will specifically cover conditions of street bail and pre-charge bail. Instructions are given on those aspects.
The noble Baroness asked a question which I could not answer because the information was not collected centrally. I, too, did a little digging around on this. As a rough estimate, between 20 per cent and 30 per cent of people arrested are released on pre-charge bail, but we do not have precise figures.
For those reasons, I ask the noble Baroness to withdraw her amendments.
My Lords, I thank the Minister for the fullness of his answer, which contained many useful nuggets. I was particularly happy when he said that the importance of training was evident. I should like to pursue that further at some stage and ask whether all police who use street-bail powers should be trained. The Minister was going in that direction and perhaps he could feed that into the ongoing discussions between the Home Office and the Ministry of Justice.
I understand the timeframe issues that the Minister mentioned. There is a great balance to be struck between freeing up the police to do their job and be on the beat—I accept that that is very important; certainly we on these Benches are big advocates of the police spending as much time as possible on the beat—and ensuring that the rights of the individual are respected, a matter that still concerns me. I think that in the example I gave, when the seriousness of the crime is weighed against the onerousness of the bail conditions, the balance has failed. I may give some further examples when we discuss this matter again, but I do not want to take up the Committee’s time further at this moment.
I am very grateful to the Minister for saying that he will look into the legal aid issue, because it is very serious when an individual suffers onerous conditions. However, I am grateful for the issues that he said he will take up and I beg leave to withdraw the amendment.
Amendment 152ZA withdrawn.
Amendments 152ZB and 152ZC not moved.
Clause 49 : Recovery of expenses etc
152A: Clause 49, page 33, leave out line 23
My Lords, the amendments in this group are probing and relate to the powers of confiscation, and the power to retain seized property that will become available to accredited financial investigators and to,
“a member of staff of the relevant director”.
In another place similar amendments were tabled and the Government provided assurances about the training and monitoring of accredited financial investigators. However, there still remains the question of how appropriate it is to grant such significant powers to people who are not warranted police officers, officers of the Serious Organised Crime Agency or from Her Majesty’s Revenue and Customs, and accredited financial investigators are simply defined by order of the Secretary of State. It would be very helpful if the Minister would confirm who is considered to be an accredited financial investigator and what plans, if any, the Government have to extend that definition. It is very important that we know the type of individual who is going to be doing this kind of job.
There is also the question of how these investigators are to work alongside law enforcement officers. In their 2006 consultation document, New Powers against Organised and Financial Crime, the Government said:
“Financial investigators are becoming more independent from police in their work and therefore to give them the full range of powers would be beneficial”.
My question to the Minister is: how can support staff be independent from the investigations and the law enforcement officers that they should be assisting?
Finally, can the Minister confirm who is classed as,
“a member of staff of the relevant director”?
I am unclear about that. I beg to move.
My Lords, these amendments address the new provisions being added to the Proceeds of Crime Act 2002 and seek to prevent accredited financial investigators having access to the powers conferred upon them.
I know that this is a probing amendment and it may help if I first provide some background. Accredited financial investigators are investigators who have been trained and accredited under Section 3 of the Proceeds of Crime Act by the National Policing Improvement Agency. They are not a new phenomenon. They were established under the 2002 Act and have been carrying out a very important role for more than six years. As new powers are introduced, so they are made available to accredited financial investigators where appropriate; that is all we are doing in the Bill.
Accredited financial investigators were a very important policy leap forward under the 2002 Act. Previously, public authorities which wanted to undertake financial investigations—for example, the Serious Fraud Office and the Department for Work and Pensions—had to rely on warranted constables and Customs officers to conduct their investigations. That is not always the most efficient way to operate. The introduction of accredited financial investigators has allowed these public authorities to conduct their own investigations, making better use of the time and expertise of their staff and freeing up fully warranted police and Customs officers for all the many duties that they have to carry out.
Investigators operating specifically under the Proceeds of Crime Act within SOCA and the Serious Fraud Office are all accredited financial investigators. These amendments would restrict the ability of those front-line important law enforcement organisations to play an effective role in ensuring that criminals do not profit from their crimes.
It is important to note that the police have many financial investigators who are not warranted officers because that frees up warranted officers to do all the other things that the police need to do. Of the 1,011 accredited financial investigators, 53 per cent are non-warranted members of staff of the police. Anyone, whether warranted or not, must receive full training by the NPIA on the use of these powers before they are allowed to use them. Even if someone has been trained by the NPIA, an accredited financial investigator only has access to the powers in the Act if they are a member of staff of a body listed under an order made by the Secretary of State. That order lists approximately 20 public bodies. I could send the noble Baroness a list of those if that would help.
The continued use of these powers is monitored strictly in accordance with the statutory authority vested in the NPIA. This monitoring takes the form of monthly activities and work-based evidence submissions via the NPIA’s financial investigation professional register. Any incorrect use will result in the withdrawal of accredited status. We believe that it is entirely right that as accredited financial investigators who are trained and closely monitored, as I have just explained, they should also have access to the new powers, as they do to the current ones. For their organisations to have to rely on constables and officers of HM Revenue and Customs would be a retrograde step in financial investigation and asset recovery.
That would introduce a differential and I repeat that these officers are not second-class investigators. The NPIA assures us that their professionalism in financial investigation at least matches if not betters that of the warranted police and HM Revenue and Customs officers involved. We are determined to stop criminals profiting from crimes and to reduce harm by maximising the effectiveness of asset recovery for the benefit of the community. It is important that these financial investigators have access to the full array of powers.
Amendments 152A, 152B, 152C and 152D seek to prevent accredited financial investigators who act as receivers from deducting their expenses from recovered sums. An accredited financial investigator, as indeed anyone appointed by the court, can already act as a receiver. The amendments would therefore simply deprive these investigators of the ability to claim their expenses from the amounts that they recover, in contrast to the ability of all the other public officials listed in the new Section 55(8) to do so now. I do not believe there is justification for that. The rationale behind this provision is to encourage the use of in-house receivers. This applies equally to accredited financial investigators as it does to others.
Amendment 152G seeks to remove,
“a member of staff of the relevant director”,
from the definition of appropriate officer for the purposes of new Section 41A of the Proceeds of Crime Act 2002. New Section 41A as a whole provides for the Crown Court to authorise the retention under the terms of a restraint order when that property has been seized by an appropriate officer. The reason that,
“a member of staff of the relevant director”,
is included is that, although such a person is not involved in confiscation investigations, they perform civil recovery investigations under the 2002 Act. They may therefore have had property produced to them while conducting a civil recovery investigation but that has been superseded by a criminal and confiscation investigation.
If a restraint order has been made at the start of the later criminal confiscation investigation, property held as a result of the now defunct civil recovery investigation can continue to be retained so that it can be used ultimately to satisfy any confiscation order that is made. In the light of this explanation, I hope that the amendment will be withdrawn.
I thank the Minister for that full reply. My interest centres on the nature of the individuals to whom these quite extensive powers are being given and their relationship with warranted officers. My two points were: who are these people and, in the light of the language about independence, what is their relationship with the police?
In talking about the training that these people get, could the Minister say what kind of people are employed to do this? Can he give the House some idea of the sort of individuals who are being given this considerable responsibility? What qualifications do they have in their background beyond the training that they receive?
The best that I can do is to say that these are people such as prosecutors, officers or members of staff of SOCA who have been designated by the DG of SOCA. I do not know off the top of my head what exact qualifications or what level of passes in certain things they have to have before they can be designated. I will get back to the noble Baroness in writing on that.
Amendment 152A withdrawn.
Amendments 152B to 152D not moved.
Clause 49 agreed.
152E: After Clause 49, insert the following new Clause—
“Confiscation orders by magistrates’ courts
The Secretary of State shall, within 12 months of this Act being passed, lay an order before Parliament to bring section 97 of the Serious Organised Crime and Police Act 2005 (c. 15) (confiscation orders by magistrates’ courts) into effect.”
My Lords, first, I have connections with a number of police forces. They are not professional connections, and I am not advocating anything on their behalf.
In preparation for discussion of the then Serious Organised Crime and Police Bill, I took advice from a number of people, including an accredited financial investigator who is working for a police force and is head of that department and who appears to be a well qualified financier. I also took advice from an assistant chief constable. I asked them how the new legislation was working. They said, “Reasonably well, but it could be improved”. I asked them how it could be improved, and they said that the real problem was that a lot of small criminals who are stealing things and the like come before the magistrates’ court and either plead guilty or are found guilty, but the magistrates are not in a position to make a confiscation order if one is asked for either by the police, who may not be there, or by a representative of the Crown Prosecution Service, who may be there. They went on to say that in order to get a confiscation order it is necessary to proceed to a higher court. They then said that the judges and other people who make the lists in the higher court do not like dealing with confiscation orders for what they regard as trivial amounts of less than £10,000.
I raised this matter with the Minister and the noble Lord, Lord Brett, when we had an opportunity for pre-legislative scrutiny, and I must say that there was a lot of shaking of heads on the other side of the table and what I would regard as squirming about by officials. I got no answer, and I was somewhat surprised the next day to find a message saying that the amendment is unnecessary because the powers already exist. I said, “Could you please show me, because I am assured by the police that they do not have the powers?”. They said that the problem was that they were in a schedule. When I asked where the schedule was, they said, “It has not been published”. When I asked why it had not been published they said, “Because of the need for training”. Honestly, you do not need much training if you are an advocate in a magistrates’ court to be able to make a simple order for confiscation.
This is a serious matter because, first, it calls into question whether the Home Office is doing its job properly in publishing schedules in a timely manner. Secondly, what is the purpose of pre-legislative scrutiny if we do not get answers? If I am wrong, please tell me, because I will point out to the police officers where these powers are and where they have been hidden. In the mean time, I hope that the Minister has some authoritative answer for me. I beg to move.
I recognise that the power to lay an order under Section 97 of the Serious Organised Crime and Police Act 2005 has been in force for four years, but that no order has been laid. There is a little mea culpa here. The noble Lord, Lord Bradshaw, is absolutely right: this has been difficult for a number of reasons. The order would make provision to allow magistrates' courts to make confiscation orders under the Proceeds of Crime Act 2002. Currently, only the Crown Court has the power to make confiscation orders and it will continue to have this power. Magistrates’ courts would be dealing only with low value cases of less than £10,000, as the noble Lord said.
I realise that having order-making powers that remain unused appears to have wasted this House’s time. That is not very clever, but there are reasons. The House scrutinised them in debate. However, that is not the case in relation to Section 97. It is government policy that asset recovery should be an integral part of criminal justice and we are constantly considering options to achieve this.
Work has started on drafting an order under Section 97. Separately and importantly, we developed the Asset Recovery Action Plan—a consultation document launched in May 2007, which set out a range of new powers and proposals to ensure that criminals would not profit from crime. Many of these proposals are now included in this Bill.
Also contained in that plan was a proposal to create a new, so-called, criminal benefits order, partly because of the problem we were having in getting the order used in magistrates’ courts. We envisaged it as being limited to the benefit from the criminality for which the defendant had been convicted, and it would therefore not require a full financial investigation. It was contemplated that such an order may be made by a magistrate up to a value of £10,000—which made it similar to the last order we were discussing. However, the viability of this possible alternative option to the Section 97 order has not been settled.
In the mean time, I can confirm that the option of an order under Section 97 is being progressed—we are now able to move this forward—and that necessary action is being taken. We will aim to ensure, if possible, that the deadline for laying any order is within the spirit of this amendment. Unfortunately, however, I am not in a position at this stage to make that firm commitment although that is what we are moving towards. I cannot make that commitment within these timescales, but with the undertaking that we are moving towards that, I hope that the noble Lord feels that he can withdraw his amendment.
Amendment 152E withdrawn.
Clause 50 : Power to retain seized property: England and Wales
Amendments 152F and 152G not moved.
Amendments 152H to 152HB had been withdrawn from the Marshalled List.
Clause 50 agreed.
Clause 51 agreed.
Clause 52 : Power to retain seized property: Northern Ireland
Amendments 152J and 152K not moved.
Clause 52 agreed.
Clause 53 : Search and seizure of property: England and Wales
Amendment 152M not moved.
152N: Clause 53, page 38, line 3, at end insert “and that use of such power is proportionate”
My Lords, the amendment concerns the use of search and seizure powers in circumstances where potentially no one has been charged with any offence. It would ensure that the power was used only in circumstances where it was appropriate to do so. In the other place, the then Minister of State for Security, Counter-Terrorism, Crime and Policing, accepted that,
“the powers are potentially invasive and intrusive and that the police and others must exercise restraint and caution when using them”.—[Official Report, Commons, Policing and Crime Committee, 12/2/09; col. 453.]
However, at the same time, he expressed a doubt about needing to include a requirement in statute for law enforcement agencies to act in a way compatible with the European Convention on Human Rights on the grounds that they are automatically required to do so and that including such a provision would risk casting doubt on other pieces of legislation where such a requirement was not expressly included.
At the same time, the Minister undertook to review the proportionality test and that is the subject of my question. What is the Government's position on this proportionality issue? I beg to move.
My Lords, this amendment provides that an officer’s power to seize property under the new Proceeds of Crime Act must be exercised proportionately. I absolutely understand the reasoning behind the amendment and fully support the spirit of it. However, I suggest that it is unnecessary. With regard to the powers of the appropriate officer, police officers, for example, have a duty to act with appropriate discretion. The police are a public authority for the purposes of the Human Rights Act and so must act compatibly with individuals’ human rights. Their powers must be used proportionately; they can be judged on that basis; they are trained to act on that basis.
In addition, the powers of seizure must be exercised with prior judicial or senior officer authority unless that is not reasonably practicable. That is another level of oversight to ensure proportionality. We are also introducing a detailed code of practice and other safeguards to ensure that the powers are exercised proportionately in compliance with the ECHR. That code of practice will give guidance on proportionality in relation to the exercise of the powers.
In conclusion, with those caveats—I think that this was a probing amendment—the amendment is important, but I have covered the points raised. I hope that I have been able to demonstrate that we are already covering those real issues of proportionality. On that basis, I hope that the amendment will be withdrawn.
Amendment 152N withdrawn.
Amendment 152P had been withdrawn from the Marshalled List.
152Q: Clause 53, page 38, line 34, leave out from “concluded” to “, and” in line 35
My Lords, I shall speak also to Amendments 152R and 152S. These are probing amendments which address what seems to us to be a pre-emptive power currently in the Bill. The conditions for the exercise of powers to seize property under Section 47C are various, and include the fact that an application by the prosecutor has been made and not concluded. However, they also allow an appropriate officer to exercise the powers if he “believes” that such an application should be made. That is my difficulty. Can the Minister tell us why that is—why he has to have a ground only of “belief”? What would constitute such a belief when such an application was made? What if the officer is wrong and an application is not actually made? We on these Benches consider that those powers must be exercised only when an application by a prosecutor has been made. I beg to move.
My Lords, as the noble Baroness said, the amendments would remove the proviso,
“or the officer believes that such an application is to be made”,
from the conditions for exercising the new Act.
Under the provisions of the Proceeds of Crime Act, if fresh information comes to light, it is possible to return to the making or varying of a confiscation order. That is entirely right. For instance, if a drug trafficker had successfully hidden assets at the time a confiscation order is made, if the assets are subsequently discovered, they should, in the appropriate circumstances, be available for confiscation. The provisions also cover absconded criminals, as they, too, should not escape the reach of confiscation. In cases which are returned to, and likewise with absconders, there is the potential for the assets to be dissipated. Indeed, this is historically what has happened, which is why the police have been so much behind the various measures. As assets may have already been hidden for many years, the risk is real.
Accordingly, under the existing restraint order provisions in POCA, property can be frozen by court order. If an application is made for reconsideration, this could put a defendant on notice that his assets are in danger of confiscation proceedings, and so he could hide them again. This would defeat the purpose of reopening a case. Accordingly, the restraint provisions allow for assets to be restrained in advance of an application for reconsideration. This occurs only when the court believes that application is to be made. These restraint provisions have been in force and operating successfully for more than six years.
The same considerations read across to the new provisions to search for and seize property. If an officer believes that an application for reconsideration is to be made, then the powers should be available to him to prevent the possible dissipation of illegally obtained assets, which is what happened in the past. In the light of this explanation, I hope that the amendment will be withdrawn.
Amendment 152Q withdrawn.
Amendments 152R and 152S not moved.
Amendment 152SA had been withdrawn from the Marshalled List.
152SB: Clause 53, page 39, line 36, at end insert “provided the defendant’s employment, business or vocation is not a criminal activity or related to criminal activity”
My Lords, this is another probing amendment. The powers to seize property under Section 47C are limited and exclude cash or exempt property. Exempt property is defined as,
“such tools, books, vehicles and other items of equipment as are necessary to the defendant for use personally in the defendant’s employment, business or vocation”.
Exempt property also includes items such as clothing, bedding, and other items to satisfy basic domestic needs. If the individual’s employment, business or vocation is a criminal activity, and that criminal activity is dependent on that equipment, is it exempt? I beg to move.
Under the Proceeds of Crime Act, there are currently no provisions allowing the seizure of property of a suspect to prevent its dissipation or devaluation in advance of the confiscation order. Clause 53 creates such powers. This was debated extensively in the other place and is now in a much improved state with further safeguards. I am not going to pretend these powers are minor or technical, and they need to be used in a proportionate, effective and focused manner. Section 47C introduces the term “exempt property”. Under this section, property exempt from seizure includes property necessary for the defendant’s personal use in his employment, business or a vocation. Amendment 152SB adds a further clarification that exempt property does not include property needed for employment, business or a vocation that is a criminal activity or related to criminal activity. While I fully agree with the spirit of the amendment, I suggest that it is unnecessary. The definition of “exempt property” is not new, and the one used in the Bill is an exact copy of the one used in insolvency and bailiff legislation: for example, in Section 283(2) of the Insolvency Act 1986. The same issues arise in that legislation as in the Proceeds of Crime Act: namely, that the seizure of property is necessary, but not to the extent that it prevents the individual making a living. It is implicit that the references to employment, business and vocation relate only to what is lawful. To introduce further criteria here would cast doubt elsewhere in the statute book.
We also expect seizing officers and the courts to take the common-sense view that only lawful businesses should continue to operate. Indeed, this could be included in the code of practice, which sets out how these powers are to be exercised. Also, if the defendant has a complaint, he can seek redress through applying for a variation of the detention, whether this is authorised by a restraint order or a new magistrates’ detention order.
I hope that I have explained the issue in more detail and, in the light of that, I ask the noble Baroness to withdraw her amendment.
Amendment 152SB withdrawn.
152T: Clause 53, page 40, line 2, leave out from “47G” to “, and” in line 3
My Lords, in moving Amendment 152T, I will also speak to Amendments 152U and 152X. Again, these are probing amendments, and they relate to seizure. The exercise of property seizure powers under Section 47C is allowed only where there is “appropriate approval”, which is defined in Section 47G as,
“the approval of a justice of the peace or (if that is not practicable … ) … a senior officer”.
I will come back to the level of judicial approval that should be required in our debates on later amendments. My concern here is that the Government’s legislation will permit these powers to be exercised when,
“in the circumstances, it is not practicable to obtain that approval before exercising the power”.
What circumstances are the Government referring to, or envisaging, in which approval would not be sought from a judicial figure?
I am also not clear whether, if judicial approval is not sought, the appropriate officer is none the less always required to seek the approval of someone who is called, and defined as, a “senior officer”. Will the Minister confirm that? If there are also circumstances in which it would not be practicable to obtain approval even from a senior officer—I have to say that I find that hard to believe—will the Minister give your Lordships’ House examples of the sorts of circumstances in which that could arise?
Although amendments have not been tabled to Sections 195C to F, which can be found on page 60 of the Bill and which include such powers to search a property, the same considerations certainly apply here. I beg to move.
My Lords, these amendments would require an officer to obtain appropriate approval in all circumstances before they could use the new powers to search for and seize property.
These powers are modelled on the existing search powers under the recovery of cash in summary proceedings provisions in Chapter 3 of Part 5 of the Proceeds of Crime Act. These have been in successful operation since the end of 2002. Under those provisions, as well as under the provisions in this Bill, an officer should obtain the approval of a justice of the peace before conducting a search. If that is not practicable, he must obtain the approval of a senior officer—that is, an inspector or above. If that is not practicable, he can use the powers without such prior approval.
A situation might arise in which an officer needs to act immediately to be able to search for and seize property. He might, for example, be searching premises for some other purpose and need to exercise these powers. In these circumstances it may be possible to get senior officer approval, say, by phone, but he cannot practically go off to court. The moment would have passed and the property may have gone. However, there is an expectation that appropriate approval should be obtained in cases.
In addition, significant safeguards are attached to the operation of the search and seizure powers. If property is seized, court authority is required for its continued detention beyond 48 hours. If property is not seized following the exercise of the new search powers, or if seized property is not detained for more than 48 hours and judicial approval was not obtained, the officer will be required to report to the appointed person why he believes that the powers were exercisable and why it was not practical to obtain judicial approval. The appointed person is an independent ombudsman appointed under the Act to oversee the operation of the powers in the circumstances that I have outlined. There will therefore be independent oversight of the operation of these powers in all cases.
A code of practice will provide guidance on the exercising of these powers. This is yet to be drafted, but it will be subject to a public consultation and will be debated in this House and the other place before it or these powers come into force. The draft skeleton of the code is set out in Annexe B of the Government’s reply to the 10th and 15th reports from the Joint Committee on Human Rights. I hope that that explanation answers the probing points and, in the light of that, I hope that the amendment will be withdrawn.
Perhaps I may press the Minister a little further on seeking approval from the senior officer. Did the Minister say that, irrespective of whether he was able to obtain the approval of a judicial officer—a justice of the peace—an officer who was going to conduct such a search and investigation would be required and expected to get the agreement of a senior officer?
He will be expected, either by phone or something like that, to get an approval from an inspector. However, if he absolutely cannot get it, he can exercise his discretion, but he has a code of practice that will guide how he should behave in those circumstances.
It is hard to believe that in a telephonic age it is not possible to ring up and get agreement from a senior officer. It is very important that these powers do not appear to be exercised erroneously or arbitrarily. I appreciate the fact that there will be a code of practice, but some safeguards in law would be extremely helpful. I shall read this debate again in Hansard and I should like to consider what view to take. In the mean time, I beg leave to withdraw the amendment.
Amendment 152T withdrawn.
Amendment 152U not moved.
Amendments 152V and 152W had been withdrawn from the Marshalled List.
Amendment 152X not moved.
152Y: Clause 53, page 41, line 34, leave out from first “of” to end of line 35 and insert “the Crown Court”
The Minister may have got on to the issue that I wish to raise now in his previous answer. The amendments in this group would require judicial authorisation for the use of powers in this part of the Bill to be provided by a Crown Court rather than a JP or a magistrates’ court. Similar amendments were considered in the other place. These powers are sufficiently serious and the legal issues sufficiently complex that in our view the level of judicial oversight should be higher.
In response to similar amendments in the other place, the then Minister of State for Security, Counter-Terrorism, Crime and Policing emphasised the procedural safeguards that would be set out in the codes of practice, but at that time those codes were not available. Can the Minister now confirm the position, because it is very hard to assess the validity of these assurances without seeing them?
If, when we have seen the draft codes of practice, we accept that they provide for sufficient procedural safeguards, will the Minister confirm how the JPs will become familiar with these complex provisions? It has been suggested that a single justice of the peace would, and could, be properly equipped to hear detention order applications. Are the Government still considering that option? I beg to move.
These amendments relate to the new powers of seizure and detention that we are seeking to introduce into the Proceeds of Crime Act 2002. The powers will prevent the dissipation of or reduction in the value of property that may then be used in settling a future confiscation order. These are important additions, as they will add to the effective enforcement of confiscation orders once they are made. This is an important point: orders must be not only made but enforced. I do not pretend that they are minor powers, as the noble Baroness said, and in recognition of this, your Lordships will note that many safeguards are attached to them to ensure their proportionate and focused use.
One of the safeguards is that of various stages of judicial oversight. These amendments address that issue. They are concerned with the appropriate courts for authorising use of the search and seizure powers, making an order for further detention of the seized property and dealing with appeals. The new provisions in the Bill are modelled on the cash search, seizure, detention and forfeiture provisions in POCA. We are not therefore breaking new ground here by giving the magistrates’ court jurisdiction to provide authorisation for the use of search powers or to conduct detention order hearings.
Similar issues that occur in the cash proceedings are likely to be raised under these new powers. It is also relevant that the magistrates’ court is the enforcement authority for the purposes of confiscation orders under Section 35 of POCA. Issues relating to property and other matters that arise from confiscation orders have been before the magistrates’ court since the enforcement powers under Section 35 were commenced in 2003. We believe that magistrates’ courts are properly equipped to deal with the search and seizure powers and detention order cases.
Under Section 290 of POCA, a JP provides prior approval for the use of the powers to search for cash. In circumstances where it is not practicable to obtain this, a senior officer can provide the prior approval. We base the appropriate approval provision in these new powers on that established and successful precedent. It is also of note that, if no judicial approval was obtained for the use of the powers and if no property is seized or any seized property is not detained for more than 48 hours, an officer must send a report to the independent person I talked about in my previous response. The report to the appointed person must detail why the officer believed that the powers were exercisable and why it was not practicable to obtain the approval of a JP. In cases where property is retained for more than 48 hours, it will be subject to judicial oversight by way of an application to a court for its continued detention.
Due to the immediacy of some situations where an officer wants to use the powers to search for and seize property, it may be that a senior officer is available at the scene or is easily contactable. It would be fatal to the use of the powers if during an actual operation an officer had to obtain JP approval for their use. The immediacy of the moment would be lost and the property possibly dissipated. The alternative of a senior officer providing approval still provides for oversight. It is important to note that, if senior officer prior approval has been obtained but property is not seized or not detained for more than 48 hours, a report has to be made, as I have outlined.
As regards detention hearings in those cases where property is subject to a restraint order, the further detention of that property after its initial seizure has to be authorised by the Crown Court. Cases that involve property of higher value or are complex are more likely to be subject to a restraint order. The use of restraint orders is increasing; their number has risen from 1,356 in 2007-08 to an estimated 1,664 in 2008-09. It is unlikely that a Crown Court restraint order would be sought in lower-value and simpler cases where smaller items of personal property may have been seized. In those cases, the application to further detain the property is made to the magistrates’ court. We do not consider that it would be an appropriate use of the Crown Court’s time to deal with such lower-order cases given the other business pressures that it continually faces. There is, however, an express right of appeal to the Crown Court against a decision of the magistrates’ court not to grant an application to vary or discharge a detention order.
I remain convinced that the Government’s proposals in this respect are reasonable and proportionate and ask that the amendment be withdrawn.
When the officer decides to seize something and says, “I am taking this”, what does he do? Does he write down on a document that he has taken something and give that document to the person from whom he has taken it? How does it work in practice? One is a little worried because, while I well understand that this could be a useful power, it could also be an oppressive power. Whatever the hurry, a practical way of indicating the formality of the proceedings is probably necessary. Could the Minister say a word about that?
My Lords, the noble and learned Lord asks a good question. I do not know the precise detail or exactly what form is filled out. According to the code of practice, we have to provide the defendant with a listed description of the seized property, set out the conditions for retention and provide forms for applying for a retention order. Other matters, such as letting the person know where the property is stored, have to be taken into account when filling out the form. There is a whole raft of requirements laid out in the procedure. I am afraid that I do not know them off the top of my head, but they are all laid out there.
My Lords, I mentioned in my first intervention that at the time of the discussion in the other place the draft of the code was not available, but the Minister now has it in front of him. Is this now available to be seen by the House? It would be very helpful to see it before I take a final view on the amendment.
Amendment 152Y withdrawn.
Amendments 152Z to 152AC not moved.
Amendment 152ACA had been withdrawn from the Marshalled List.
152ACB: Clause 53, page 42, line 22, at end insert—
“( ) The Secretary of State must produce guidance on the qualifications required by a person appointed under subsection (4).”
My Lords, this is a probing amendment. When an appropriate officer exercises powers to seize or search property without judicial approval, that officer is required to provide a written report to an “appointed person”. This written report must detail the particulars of the circumstances that led the officer to believe that the powers were exercisable and it was not practical to obtain judicial approval. We have already spoken about some of the sensitive issues involved. Having received these reports, the appointed person is required to provide the Secretary of State with an annual report on the exercise of the powers, including recommendations on how the system operates. What kind of individual would the Government expect to be appointed to this role? What would his or her qualifications and experience have to be? This individual will clearly emerge as an important person in the system, both helping to ensure that it operates properly and guiding its operations.
I am unhappy that the Bill sets up a relatively lax regime for approving the use of search and seizure powers and then puts in place, in order to make it look good, an initial layer of bureaucracy to assess its functioning, but ex post facto. In many respects we would be much better off if we had a watertight regime in the first place. I beg to move.
My Lords, the Home Office makes appointments in line with the Office of the Commissioner for Public Appointments regulations, which are followed as best practice in all appointments. These regulations are publicly available. The selection process will therefore be an open and fair competition. The appointed person at the moment is Mr Andrew Clarke, who, to give an example of his background, has been specialising in criminal law since 1972; he was chief Crown prosecutor for the Crown Prosecution Service from 1986 to 1996 and is now a barrister in private practice. In the light of that, I hope that the noble Baroness will withdraw the amendment, unless she wishes me to go into more detail.
Amendment 152ACB withdrawn.
Amendment 152ACC had been withdrawn from the Marshalled List.
Amendment 152AD not moved.
Amendment 152AE had been withdrawn from the Marshalled List.
152AF: Clause 53, page 44, line 44, at end insert—
“47MA Right of third parties to make representations
(1) The Crown Court must, on an application by a person, give the person an opportunity to make representations in proceedings before making an order under section 47M if it considers that the making of the order would be likely to have a significant adverse effect on that person.
(2) The Crown Court must, on an application by a person, give the person an opportunity to make representations in proceedings before it about the variation of an order under section 47M if it considers that—
(a) the variation of the order; or(b) a decision not to vary it;would be likely to have a significant adverse effect on that person.
(3) The Crown Court must, on an application by a person, give the person an opportunity to make representations in proceedings before it about the discharge of an order under section 47M if it considers that—
(a) the discharge of the order; or(b) a decision not to discharge it;would be likely to have a significant adverse effect on that person.
(4) The Court of Appeal when considering an appeal in relation to an order under section 47M must, on an application by a person, give the person an opportunity to make representations in the proceedings if that person were given an opportunity to make representations in the proceedings which are the subject of the appeal.”
My Lords, the Bill already provides that a person affected by a detention order can apply for the discharge or variation of that order, or appeal against any decision made on the order. The amendment would also give third parties with an interest in the seized assets the right to make representations to the court in respect of hearings or to authorise further detention. In the other place the Government agreed to consider the scope for allowing third parties the opportunity to make representations, and I would be grateful if the Minister would update your Lordships’ House on where the Government have got to on that point. I beg to move.
My Lords, the amendment relates to the ability of third parties to be heard at an application, variation or discharge of a detention order or an appeal. This is a detention order made by a magistrates’ court following the seizure and initial administrative detention of property under the new powers that we are seeking to introduce in relation to the Proceeds of Crime Act 2002.
In the other place, the then Home Office Minister Vernon Coaker made it clear that we need to take account of third-party interests in detained property. We have looked again at this issue in consultation with the Ministry of Justice and I assure the House that our commitment to the interests of third parties can be met without the need for provision in the Bill.
We can meet the commitment by amendments to the criminal procedure rules. The rules already provide for giving notice to third parties in other proceedings under the Proceeds of Crime Act 2002, so that those third parties can take part if they wish. The Criminal Procedure Rules Committee will be asked to amend the criminal procedure rules to give such third-party rights under these new powers, and we are confident that the committee will do so willingly. That will enable a third party to turn up in court and argue his case.
With regard to the second and third limbs of the amendments, which look at third-party interests in applications to vary or discharge a detention order, there is already specific provision in the Bill on these matters. I refer in particular to new Section 47N(2)(b) of the Proceeds of Crime Act 2002, as set out in Clause 53. Equally, new Section 47O provides a right of appeal to any person affected by an order against a decision of a magistrates’ court on an application to vary or discharge an order.
I know that this was a probing amendment, and I hope that that explanation will allow the noble Baroness to withdraw her amendment.
Amendment 152AF withdrawn.
Amendments 152AG to 152AK not moved.
Amendment 152AKZA had been withdrawn from the Marshalled List.
152AKZB: Clause 53, page 46, leave out lines 22 and 23 and insert—
“( ) An appropriate officer must keep under constant review the detention condition and release the property if that condition is no longer met.”
My Lords, this is a probing amendment. It would replace the existing requirement that sees property being released if at any time the appropriate officer “decides” that the detention condition is no longer met. It would instead require that the officer kept under constant review whether the detention condition was no longer met and release the property if it was not. In effect, I am saying that it would be good to have a procedure, not simply a requirement that could be exercised on no particular basis by the existing officer. I beg to move.
My Lords, Amendment 152 Alpha Kiwi Zulu Bravo—these amendments are getting rather long, aren’t they?—essentially introduces an explicit provision that the detention of property must be constantly reviewed and that the property must be released if the detention provision is no longer met.
Your Lordships will note that there are already a number of safeguards that accompany these new powers in recognition of the need to ensure their focused and proportionate use. The conditions for exercising the seizure power are set out in new Sections 47 Bravo and 47 Charlie(1). These require that an individual has been arrested, or proceedings have begun against him, and there is reasonable cause to believe that he has benefited from the offence. The officer must also have reasonable grounds to suspect that the property may be made unavailable for satisfying a confiscation order or that the value of that property may be diminished.
In the other place, in recognition of the constructive debates on the powers, we introduced an amendment to place an explicit duty on an appropriate officer to release detained property if the conditions and reasons for its initial seizure no longer existed. This duty is set out in new Section 47R(2). I am satisfied that an explicit power to release property if it no longer meets the detention condition provides an implicit duty that the position must be reviewed regularly.
In addition, we will ensure that a duty to review detention is included in the code of practice that has to be introduced under new Section 47S. We have already made such a commitment in the government reply to the 10th and 15th reports from the Joint Committee on Human Rights of Session 2008-09.
Annexe B of that document sets out a draft skeleton for the code of practice. Significantly, a passage in it addresses the point, stating:
“Ongoing consideration of the validity of the detention and duty to release if detention conditions no longer met. A senior officer undertaking a formal review of continued detention every three months”.
Your Lordships will note that the quote I have just given is not in full, grammatical English. That was not because I read it incorrectly, but because the skeleton code was drafted with bullet points rather than with full sentences. Your Lordships will have the opportunity to scrutinise the code of practice before the powers come into force. The order bringing the code into force is subject to an affirmative resolution of both Houses.
In conclusion, I suggest that the provision that we have introduced, together with the requirement in the code of practice for a senior officer to conduct a review of the detention condition every three months, amounts to a strong and sufficient safeguard and certainly meets the spirit of the amendment.
I fully appreciate the concerns expressed about controlling the new power of search, seizure and detention—indeed, I share them—but I am satisfied that there are sufficient safeguards and that the points raised by the noble Baroness are already addressed. In the light of my explanation, I hope that she can withdraw her amendment.
Amendment 152AKZB withdrawn.
Amendment 152AKZC had been withdrawn from the Marshalled List.
Clause 53 agreed.
Clauses 54 to 61 agreed.
Clause 62 : Detention of seized cash
152AKZD: Clause 62, page 75, line 9, leave out subsection (1)
My Lords, this is a very short, probing amendment. The Government have not explained in any of their notes why the period for which a court may authorise the further detention of seized cash is being increased from three to six months. It would be very helpful if the Minister could give an explanation. I beg to move.
My Lords, under the Proceeds of Crime Act 2002, the police, Revenue and Customs officers and accredited financial investigators have the powers to seize, detain and apply for the forfeiture of cash suspected of being the proceeds of, or funds intended for use in, crime. Forfeiture is subject to an order by a magistrates’ court in England, Wales and Northern Ireland, or by the sheriff in Scotland.
These powers have been hugely successful, with the forfeiture of more than £100 million of seized cash in England, Wales and Northern Ireland in the past three years. I am sure that what we are hoping to enact now will make it even more successful. The number of cash forfeiture orders made by the magistrates’ courts has increased significantly during recent years, from 765 orders in 2005-06 to 3,223 in 2008-09.
At present, when cash is seized, the seizing authority needs to get a magistrates’ court or a sheriff to make a detention order, which then needs to be renewed every three months until, following the completion of the necessary investigations, an application is made for the cash to be forfeited. This process of renewing the detention order can be time-consuming for both law enforcement and the courts. Clause 62 extends the interim period during which cash can be detained from three to six months, which would result in fewer applications to the courts for continued detention, although parties will still have the right to apply at any time for the release of the detained cash. The maximum period of the detention of the cash, with recurring judicial detention orders, will remain at two years. The Government’s proposals represent a fairly modest change to the existing procedures. They have the support of the police and the other law enforcement agencies. The amendment would leave the police and other agencies in the position they are now, which would be unsatisfactory, for the reasons I have given.
After my explanation for the reasoning, I hope that the noble Baroness feels able to withdraw her amendment. After completing this debate, I apologise that I shall have to leave the Chamber because of other commitments, but people who are even better than me will be here to argue through the remainder of this Bill.
Amendment 152AKZD withdrawn.
Clause 62 agreed.
Clauses 63 and 64 agreed.
Amendment 152AKA not moved.
Clause 65 agreed.
Amendments 152AKAA and 152AKAB not moved.
152AKAC: After Clause 65, insert the following new Clause—
“Definition of European Framework List
The Secretary of State shall produce guidance on the definition of those offences listed in Schedule 2 to the Extradition Act 2003 (c. 41) (European framework list).”
Under the European arrest warrant, British citizens can be extradited for ill defined offences that might not even constitute a crime in the UK or in many other European countries. This has been a concern since 2002, when the Home Affairs Select Committee considered this issue. The Committee said:
“We have grave concerns about the abolition of the dual criminality safeguard. The variety of criminal justice systems and of legislative provisions within the member states of the EU makes it difficult for us to be … confident … that it will be acceptable in all circumstances for a person to be extradited from the UK to face proceedings for conduct that does not constitute a criminal offence in the UK … Our sense of unease is heightened when we look at the list of 32 offences specified by article 2.2 of the framework decision ... It is apparent that these offences are defined in generic terms and are probably better described as ‘categories of offence’. As noted above, the UK Parliament has no power to amend them … We asked the Home Office what information it has about how these offences are defined in other countries. The Home Office responded that it ‘does not have detailed definitions of offences in the criminal justice systems of other EU member states’”.
Amendment 152AKAC would require the Secretary of State to produce guidance on the definition of those offences listed in Schedule 2 to the Extradition Act 2003. I beg to move.
My Lords, I hear what the noble Baroness says on Amendment 152AKAC, but that was listed together with Amendments 152AKAA and 152AKAB, and all of those issues require the judge to consider both the evidential standards and the EAW list of offences when considering forum. I am not sure what the noble Baroness feels that those amendments will do in relation to Amendment 152AKAC, because—if I may respectfully say so—both amendments conflate conceptually two separate issues. For example, conflating the dual criminality and the forum presupposes that an offence is punishable in the United Kingdom, which it may not be.
We do not believe that this amendment is necessary, and invite the noble Baroness not to continue with it. As she will know, the evidential requirements on our extradition partners vary, and to penalise our most trusted partners for meeting evidential requirements seems unhelpful at best and, some might say, even bizarre. I am not aware of judges seeking guidance on interpretation of the list offences, and we feel that the current system is more than adequate.
My Lords, these are complex issues and the noble and learned Baroness the Attorney-General has written to Members of your Lordships’ House addressing some of them, including this one. The issue that lies between us is whether there is imbalance in the evidentiary standards and how that jurisdiction is decided in cross-border cases. At this stage, we will consider her letter carefully, but I think we shall return to this issue on Report. In the meantime, I beg leave to withdraw the amendment.
I was not quite sure which amendment we were on. However, if we are on what has been called the forum amendment, at this stage I certainly found the arguments that the noble and learned Baroness the Attorney-General advanced in the memorandum completely convincing—particularly, the arguments on the second bullet point on its last page and the example that she gave in paragraph 21. In short, it seems to me that the question of whether to prosecute must be for the prosecuting authorities, and it follows that the question of where to prosecute must also be for them. Where there are two competing jurisdictions, it can only be resolved by agreement between the prosecuting authorities in the two different countries. I cannot see how it could conceivably be resolved by a judge in this country.
Amendment 152AKAC withdrawn.
Clause 66 agreed.
Clause 67 : Extradition to category 1 territory
152AKAD: Clause 67, page 81, line 33, at end insert—
“(4) When proceeding under this section the judge must consider whether the extradition is barred under section 11, 21 or 25.””
My Lords, this amendment and the ones grouped with it, which I put forward, are suggested to us by Justice. The proposed amendments to Clauses 67 to 69 deal with a gap in the application of the Extradition Act to circumstances where it is discovered that a person arrested has charges pending or is serving a sentence in the United Kingdom. The current power to defer exists only at the time of the extradition hearing, not before. We welcome the identification of this omission. However, we feel that bars to extradition should be addressed at the point when the request is made, not once the domestic matter has been resolved at some date in the future.
There are, of course, a number of bars to extradition: the requesting country may retain the death penalty or may be guilty of torture; there is a passage of time bar; the crime has already been tried in another country; the defendant suffers from a physical or mental condition through which it would be oppressive or unjust to extradite that person. Those issues should be determined at the time of the request and not left until the defendant is released from whatever period of custody or imprisonment he may be undergoing in this country, because for the whole of his time in prison he will wonder whether the bars that he wishes to put forward will be accepted by the court. If the requesting state wants to pursue the warrant when he is released, it should do so at that point when it can reissue its request to this country, and bars to extradition could be considered at that point.
Our amendment would obligate the judge or the Minister to consider bars or human rights implications at the requesting stage where the current and proposed legislation does not allow them to do so. I beg to move.
My Lords, I think I understand the basis on which the noble Lord makes his contention in relation to submissions, but I am afraid that I do not agree with him. In cases where a person who is the subject of an extradition request is serving a sentence in the United Kingdom, the Extradition Act allows a decision to be made about whether extradition should be deferred until the end of that domestic sentence.
These amendments would require that, prior to extradition being deferred, the judge or the Secretary of State must consider whether any of the statutory bars to extradition apply. The thinking behind the amendments appears to be, as I understand it, that if on the facts of the case there is an obvious bar to extradition, this matter should be considered prior to deferral so that the criminal in question does not have the extradition proceedings hanging over his head while serving his United Kingdom sentence. While I can see the thinking behind this amendment, I resist it on three grounds: first, the terms of the Act make it unnecessary; secondly, the mischief the amendment is targeted at does not on closer scrutiny exist; and, thirdly, it would result in an unnecessary burden being placed on the extradition system.
I shall deal first with necessity. It is important to note that if a person is serving a sentence of imprisonment in the United Kingdom, the Extradition Act makes it clear that whether or not extradition proceedings will be deferred is a matter for the discretion of the decision-maker. This means that the judge or the Secretary of State can look at all the facts of the case and decide whether in fact the proceedings should be deferred. This means in practice that in the rare case where an obvious bar to extradition is engaged, the subject of the extradition request would be able to trumpet this fact in arguing that the proceedings ought to be determined right away rather than deferred. There is, accordingly, scope within the legislative framework on deferral for the issues raised by these amendments to be fully and, I respectfully suggest, appropriately considered. That is why we do not believe that the amendments are necessary.
As to the mischief at which the amendments seem to be targeted, I contest the notion that it is really that much of a hardship for someone serving a criminal sentence properly imposed by a United Kingdom court to know that at the end of a sentence they will be required to face extradition proceedings. The Extradition Act contains a wide range of safeguards which ensure that no one will be extradited from the United Kingdom without due process being observed and guarantees in particular that extradition will never take place where it would give rise to a breach of the European Convention on Human Rights. Your Lordships know that our courts are very jealous about their observance of those provisions. This is an important point to make, as it means that no one serving a domestic sentence and who is the subject of adjourned extradition proceedings need have any concern that they have the prospect of treatment contrary to the Human Rights Act 1998 hanging over them once the proceedings restart.
My final observation on the amendments is that they would in most cases require the statutory bars to extradition to be considered twice—once prior to deferral of the proceedings and once again when those proceedings eventually resume. Given that the resources of our extradition system are already stretched, this, with the greatest respect to the noble Lord, Lord Thomas of Gresford, is unjustifiable. It simply does not, in our view, make sense for issues to be determined on a provisional basis well in advance of the potential date for extradition and then be considered for a second time at the point of extradition, by when those factors may well have changed.
I understand why the noble Lord raises this issue, but I hope that he will say that his amendment was probing, he has had satisfaction and that we can happily put the issue to one side.
Has a judge ever considered bars to extradition on an application by a defendant prior to adjourning the warrant? Are there any examples of that? That was the noble and learned Baroness’s first reason. Her second was that it cannot really worry someone who is properly sent to prison that he might be extradited at the end of his sentence. That comment does not touch common humanity. Thirdly, she said that there would be a double hearing on the bars to extradition. Our proposals are that they should be dealt with once and for all at the time that the request is made, whereby, instead of adjourning the request, the judge would say, “There’s an obvious bar to extradition here and I am putting an end to it”. As I said in my opening remarks, there is no reason whatever why the requesting country in the years that pass—say, two or three years later at the end of the sentence—should not renew the request if it wishes to. The bars to extradition can be examined at that time.
My Lords, on the noble Lord’s first question, the issue is whether the court has capacity to make those considerations, which it does. I have made it plain that the current structure enables the judge to look at that issue right at the beginning, that the ECHR is there to cover the middle and the end, and that the process which has worked well is that final consideration of extradition should be made once the United Kingdom’s jurisdiction has been exercised. I still say that the noble Lord’s amendments are unnecessary and, therefore, invite him to withdraw or not move them.
My Lords, I shall certainly do that in a moment and consider what the noble and learned Baroness said about them. One thing that has emerged is that she has pointed the way for a defendant who is the subject of an extradition request to make his application to put the bars before the court at the beginning, rather than the end, of his sentence. I hope that practitioners will take note of that and use it. I beg leave to withdraw the amendment.
Amendment 152AKAD withdrawn.
Clause 67 agreed.
Clause 68 : Extradition to category 2 territory
Amendment 152AKAE not moved.
Clause 68 agreed.
Clause 69 : Person charged with offence or serving sentence of imprisonment
Amendments 152AKAF to 152AKAP not moved.
Clause 69 agreed.
Clauses 70 and 71 agreed.
Clause 72 : Return to extraditing territory etc
152AKB: Clause 72, page 90, line 3, leave out from first “the” to “with” in line 4 and insert “return is not compatible”
My Lords, this amendment arises from the Joint Committee on Human Rights. The Bill states:
“Nothing in section 153A or 153C requires the return of a person to a territory in a case in which the Secretary of State is not satisfied that the return is compatible with the Convention rights within the meaning of the Human Rights Act 1998”.
We have suggested that the sentence should simply state that,
“the return is not compatible”.
In other words, it is not a question of the Secretary of State being satisfied, just that the return itself is not satisfactory. This is simpler, better and less open to discretion and doubt. I beg to move.
My Lords, while I understand the aspiration behind the amendment of the noble Earl, Lord Onslow, and what he is trying to achieve, I will resist it on the basis that the provisions of Clause 72 already provide sufficient safeguards to ensure that the return of an individual pursuant to an undertaking is compatible with the person’s fundamental rights. I heard the noble Earl say that there may be some lack of clarity on this issue. I assure him that it does not appear to have caused any difficulty to date and is working relatively clearly and very well.
As the clause is drafted, the Home Secretary must refuse to return someone pursuant to an undertaking if their surrender would be incompatible with a person’s human rights or their rights under the refugee convention. The European Convention on Human Rights reflects a clear duty imposed on all public authorities by Section 6 of the Human Rights Act 1998. The purpose of new Section 153D, to be inserted by Clause 72, is to make it absolutely plain that where the Secretary of State reaches the conclusion that to return someone pursuant to an undertaking would be in breach of his duty under the Human Rights Act or the refugee convention, nothing in the preceding provisions of Clause 72 requires him to act in breach of that duty. If the Secretary of State decided to return someone, but as a matter of law that decision would breach the ECHR or the refugee convention, his decision would be unlawful and could successfully be challenged by way of judicial review.
I can categorically assure the noble Earl that nothing in new Section 153D seeks to suggest that the decision as to whether return would breach a person’s human rights is a matter for the Minister’s discretion. Whether or not return would breach the ECHR is a question of law and would be reviewed by the courts on that basis. I understand the anxiety of noble Earl, Lord Onslow, but I hope that I have been able to assure him that his concern about the discretion is not well-founded. We were alive to the problem and have sought to apply the salve before it was requested—confident, as we always are, that he would notice if we had failed in our duty.
I love being flattered by the noble and learned Baroness—it is very egoistic. I am grateful for what she said and of course I accept it absolutely. I still think that the matter would possibly have been slightly clearer and more concise with our suggested wording but, having listened to what she said, I beg leave to withdraw the amendment.
Amendment 152AKB withdrawn.
152AKC: Clause 72, page 90, line 4, after “with” insert “human rights, including”
Amendment 152AKC not moved.
Amendments 152AKD and 152AKE not moved.
Clause 72 agreed.
Clauses 73 and 74 agreed.
152AKF: Before Clause 75, insert the following new Clause—
“Unlawful rendition and searching of aircraft
After section 24B of the Aviation Security Act 1982 (c. 36) insert—
“24C Police powers to search aeroplanes
(1) If the Secretary of State has reason to believe that an aircraft that is in flight over the United Kingdom is or has recently been or may be involved in an act of unlawful rendition then he or she may require the aircraft to land at a suitable aerodrome.
(2) If an aircraft is required to land in accordance with subsection (1), a responsible person must, as soon as practicable after the aircraft has landed, enter and search the aircraft.
(3) The Secretary of State or a responsible person must enter and search an aircraft if he or she has reason to believe that—
(a) an aircraft in an aerodrome is or has recently been or may be involved in an act of unlawful rendition; or(b) in respect of an aircraft in an aerodrome, incomplete or incorrect information under sections 32 and 33 of the Immigration, Asylum and Nationality Act 2006 has been supplied.(4) For the purposes of subsections (2) and (3), a search of an aircraft is to be carried out to determine if—
(a) the aircraft has recently been, or may be, involved in an act of unlawful rendition;(b) a criminal offence has been committed; or(c) allowing the aircraft to continue on its journey could place the United Kingdom in breach of its obligations under the European Convention on Human Rights,but these powers may only be exercised when it is not reasonably practicable to apply for a warrant of entry in accordance with section 8 of the Police and Criminal Evidence Act 1984.
(5) A person who carries out a search under this section may remove any items from the aircraft if it may be evidence of any of the matters set out in subsection (4).
(6) In this section—
“an act of unlawful rendition” means an act, not being in accordance with formal lawful extradition or deportation procedures, involving the forcible transportation of a person to a territory where he or she may be subjected to torture and inhuman and degrading treatment;
“a responsible person” means—
(a) the chief officer of police of a police force maintained for a police area in England and Wales;(b) the chief constable of a police force maintained under the Police (Scotland) Act 1967;(c) Chief Constable of the Police Service of Northern Ireland;(d) one of the Commissioners for HM Revenue and Customs;(e) a constable designated by any of the persons specified in paragraphs (a) to (c).””
My Lords, this amendment is proposed by Liberty and its purpose is to introduce a new clause into the Bill to amend the Aviation Security Act 1982 that would bring new powers to direct a plane to land and to search that plane and any other plane already in the United Kingdom if there was reason to believe that the aircraft had been, or might have been, involved in unlawful rendition.
Amendments similar to this proposal were tabled to the Civil Aviation Bill and the Police and Justice Bill in 2006 but, since then, things have changed. There is now an acknowledgement by the Government that planes transporting prisoners to countries where they face torture and inhuman and degrading treatment have come within the United Kingdom’s jurisdiction.
Therefore, the amendment creates a power to allow the Secretary of State to require any plane using United Kingdom airspace to land if he has information leading him to believe that the plane is being used for the purpose of unlawful rendition. It also creates a specific duty requiring that, if such planes are forced to land, they must be searched and if the Secretary of State, senior police officers or customs officers believe that a plane using United Kingdom airport facilities may be involved in unlawful rendition, there is a power to search that plane. That is not as draconian as it may seem because there are powers under other legislation to search planes but they do not cover all the circumstances involved in unlawful or extraordinary rendition. The amendment also gives a power to search an aircraft if there is reason to believe that incorrect or misleading information on the passengers, crew and flight path has been supplied.
I do not propose to go into the admissions that have been made about the use of extraordinary rendition through United Kingdom airspace and property. The purpose of this amendment is not to consider what has happened but to look to the future so that concerns may be properly investigated. As I have already said, there are powers under customs legislation to search planes for smuggled goods, and the Terrorism Act 2000 (Information) Order 2002 gives police, immigration and HM Revenue and Customs the power to serve on the owner or agents of an aircraft in the United Kingdom a notice requiring details of the crew and passengers, but that is limited to cases involving terrorism. Therefore, there is a gap and that gap justifies the creation of additional powers such as we propose in this amendment. I hope that the noble and learned Baroness will see fit to accept it. I beg to move.
My Lords, I support the amendment and do so knowing that I speak for many people who have been horrified to learn of the procedure of rendition and the great taint that it places on legal systems throughout the world. To find that a country such as the United States of America has been involved in moving prisoners to places where they can be tortured with greater impunity seems to be one of the scandals of modern times.
Also scandalous is the idea that other countries have in any way made that process possible. We know that allegations have been made that the United Kingdom is one such country. While that matter is no doubt a subject of debate and denial in certain quarters, I should have thought that the amendment would seek to allay any fears or concerns that such a process might be conducted in any way using British airspace or airfields in the manner that has been described. I hope that this Government will make it very clear not only that they oppose torture but that they do not in any way make it possible and that in fact they will introduce any steps that can prevent our nation being lent to this disgraceful practice.
My Lords, I apologise to my noble friend for rising too quickly. I say both to my noble friend and to the noble Lord, Lord Thomas of Gresford, that the amendment is unnecessary, but I join with them very strongly in their condemnation of torture and unlawful rendition.
As the noble Lord, Lord Thomas of Gresford, has made clear, this issue has been debated extensively in your Lordships’ House on a number of previous occasions, particularly, as was mentioned, during the passage of the Civil Aviation Bill and the Police and Justice Bill in 2006. A similar amendment was also tabled at the Committee stage of this Bill in another place.
The main thrust of the proposed new clause is to amend the Aviation Security Act 1982 to provide the Secretary of State with a specific power to direct an aircraft overflying the United Kingdom to land and be searched if it is believed to be involved in an act of unlawful rendition. However, Article 3bis of the Convention on International Civil Aviation—the Chicago convention—already allows a state to require a civil aircraft to land if there are reasonable grounds to conclude that it is being used for any purpose inconsistent with the aims of that convention, and on that basis we say that the amendment is unnecessary.
Further, the amendment throws up a number of practical difficulties. First, it would require an aircraft that had been directed to land, or any other aircraft already in the United Kingdom, to be searched if the Secretary of State had reason to believe that it was, had recently been or might in future be, involved in an act or acts of unlawful rendition. However, the degree of suspicion required to trigger this power is unclear and, at its lowest, could include any allegation whether supported by credible evidence or not. Although the amendment seeks to address what I believe to be a very serious issue—and I recognise that it will not always be easy to establish clear evidence that an act of unlawful rendition is in the process of taking place in sufficient time to act upon it—directing an aircraft to land is a significant step and any such direction should, in propriety, be based at the very least on a reasonable suspicion of current involvement in wrongdoing.
A further problem is that the entry and search of an aircraft could be based on a suspicion of past, albeit recent past, or future use of that aircraft for extraordinary rendition purposes. Allegations of past misdeeds, whether proven or not, are no evidence that acts of rendition are taking place on the current flight. Further, all aircraft could potentially be used for such purposes and, taken literally, the proposed new clause might place every aircraft landing in the UK at risk of being entered and searched. I know that is not what the noble Lord would wish; neither do I think it is the intention of my noble friend.
Of additional concern is the fact that the proposed new clause provides no discretion when it comes to the entry and search of an aircraft if reason to suspect recent past, present or future involvement in unlawful rendition is established. Even if evidence were subsequently discovered on board the aircraft, that would not of itself mean that the crew or individuals on board at the time of the search were necessarily culpable of an offence or indeed that an offence had actually taken place on that flight. If evidence were found that the aircraft had recently been involved in an act of unlawful rendition, it is not clear how this evidence would be used. I know that both my noble friend and the noble Lord are vociferous and rightful campaigners on individuals’ rights. I can just hear what they would say if that were the purpose.
The police already have the power to search premises, including aircraft, under warrant. Indeed the proposed new clause clearly envisages a responsible person, in the normal course of events, applying to the court for a search warrant. Applications for search warrants are made under Section 8 of the Police and Criminal Evidence Act 1984 and a warrant will be granted where a justice of the peace is satisfied that there are reasonable grounds for believing that an indictable offence has been committed, that there is relevant, admissible evidence on the premises and that one of the conditions in Section 8(3) is satisfied. However, it is not clear from the amendment what a responsible person would be expected to do if a warrant of entry was applied for but refused by the court on the basis of insufficient grounds. Nevertheless, we believe that where a search warrant has been successfully obtained, this could be used in the case of an aircraft that had been required to land under the provisions of the Chicago convention.
I hope I have explained, as I believe others have before me on a number of occasions, that the Government have made it clear that we do not and will not grant permission for UK airspace or territory to be used for any unlawful rendition. If the United Kingdom's security and law enforcement agencies received intelligence that could give rise to the types of action envisaged by the proposed new clause, on a timescale that would permit such action, the aircraft would either be refused permission to enter United Kingdom airspace or be directed to land in accordance with the existing provisions of the Chicago convention. Although we shall continue to keep these powers under review, we respectfully suggest that the proposed amendment is simply unnecessary.
I understand my noble friend’s anxiety about this and her determination for our country not to be misused and, I would say, abused in this way. I absolutely understand the desire of the noble Lord, Lord Thomas of Gresford, to ensure that that commitment is not only maintained but holds true. It is a proper matter for us to debate and I am more than happy to give the assurance that this Government’s position has not changed in relation to it.
I am most grateful to the noble and learned Baroness for her reply. I had hoped to spend much of this afternoon debating the probable cause in the fourth amendment of the United States constitution and Section 8 of the Police and Criminal Evidence Act and how the two vary and differ. Unfortunately, we have been spared that debate and I hear her criticism that this amendment does not set out a standard by which a magistrate or a judge could issue a warrant for the searching of an aircraft in the circumstances that we have discussed. I accept that criticism and I shall look at the amendment. I do not know whether I shall bring it back again but I am grateful to the noble and learned Baroness for her response. I beg leave to withdraw the amendment.
Amendment 152AKF withdrawn.
Clause 75 : Provisional arrest
Debate on whether Clause 75 should stand part of the Bill.
We have given notice that we oppose the question that Clause 75 stand part of the Bill. In so doing, we are supported by Liberty. Currently, a person may be arrested under the Extradition Act 2003 if a constable, a Customs officer or a service policeman has reasonable grounds to believe that an arrest warrant for that person's extradition has been or will be issued. Once a person has been arrested under this power, he or she must be brought before a judge within 48 hours and documents setting out the legality of the arrest must be provided to the judge; that is to say the extradition request and the documents which have to accompany it.
Clause 75 permits the requesting state to apply to a judge to extend the period of 48 hours within which it must produce the documents. Our view is that, if a request is made for the extradition of someone from this country, everything should be in order before the person concerned is arrested. According to Clause 75, a judge can grant the extension if he or she decides that the documents could not reasonably be produced within the initial 48 hours. In calculating the period of 48 hours, no account is to be taken of weekends or public holidays. The requesting country now has 48 hours, plus 48 hours, plus a weekend or a public holiday. That means that someone could be arrested and held for a very long period without knowing why.
The government amendment would allow for a person to be detained without charge for upwards of six days. It is a clear interference with the right to liberty and it must be demonstrated to be necessary and proportionate. The Government have not given us a reason why it is necessary to give a requesting country more time to produce the documents. It may just be a matter of administrative convenience but some of us will know that a High Court judge is available at any time of day or night in extremis. There is no need for people to be held in custody just for the purposes of administrative convenience. That is why we oppose Clause 75 and I look forward to hearing the reply of the noble and learned Baroness.
We share the view that it should not be necessary to extend the period in this way. There is an obligation on the requesting country to meet the requirements of the extradition procedure as soon as possible. It seems to be a case of administrative convenience rather than fairness to the individual concerned.
I understand the way in which the noble Lord, Lord Thomas of Gresford, and the noble Baroness, Lady Neville-Jones, put their points but there are a number of practical issues which we need to bear in mind. The first, as the noble Lord will know, is that the designated judge for extradition cases is a district judge and not a High Court judge. The reason, as the noble Lord will be aware, is that for a long time in central London the principal district judge has developed a real expertise in this area and there are a number of other designated specialist district judges who cover this. This jurisdiction is not a jurisdiction which is exercised by a High Court judge. I am very familiar with the 24-hour duty judge system which is available in the High Court but we are dealing with the position which pertains in the district court, which has the role of discharging this function.
The European arrest warrant system provides a very effective and efficient means by which extradition can be conducted between member states of the European Union. As my honourable friend Vernon Coaker made clear in the other place when this matter was debated, such urgent and complex cases requiring member states to ask one another to arrest someone before a full European arrest warrant has been issued are rare. Where the United Kingdom receives such a request and there are reasonable grounds for believing that the full European arrest warrant has been or will be issued, it is open to UK law enforcement officials to arrest the person in question. Sometimes there is information that the person is coming through our country, is at an airport or somewhere where it is possible to arrest them and time may be of the essence.
Where someone is arrested somewhat unusually under the provisional arrest powers found in Section 5 of the Extradition Act 2003, Section 6 requires that the person be brought before a court and the full European arrest warrant provided to the judge within 48 hours of arrest.
In most cases, that mechanism will work effectively and without difficulty. However, there are very rare occasions when that rigid time limit causes operational difficulties. The first such instance is where the 48-hour period falls over a weekend or public holiday. Where that is the case there will often not be a court sitting to deal with the person provisionally arrested within 48 hours, which under the terms of the Act would enable a potentially serious criminal to apply to be discharged.
The second situation is where the seriousness and complexity of the case means that the authorities in the other member state are simply unable to provide the relevant information within the 48-hour period. In such cases, it should be possible to apply to a judge for a further 48 hours within which to produce a full European arrest warrant and to bring the person in question before the court. Such an application would be made on notice to the person affected and an extension would be granted only where the judge was satisfied that the conditions in Section 6 could not reasonably have been complied with within 48 hours. There would also be an opportunity for the person arrested to apply for bail.
It is also important to consider the context of the time limits in the legislation of our EU partners. For instance, Italian domestic law provides for a person to be held for up to 10 days subject to a provisional arrest request. In France a person may be detained for six days before the full European arrest warrant must be produced. Both those countries have of course incorporated the requirements of the European Convention on Human Rights into their domestic law.
In conclusion, this provision will not only contribute to greater public safety on British streets, but ensure that we co-operate effectively with our EU colleagues in tackling serious and organised crime. The European arrest warrant is working well in the United Kingdom, but this clause will ensure that it is even more effective in bringing serious criminals to justice. I beg leave that this clause stands part of the Bill.
My Lords, I am familiar with the fact that the jurisdiction of the chief magistrate in Bow Street, like Bow Street magistrates’ court, has gone, and that the jurisdiction has been spread among the district judges and one particular district judge who heads the team. However, the fact that the court is not sitting is not a good reason for someone to sit in prison without any knowledge of why they are there—without the documents having been served on them. I am sure that the district judges could have a system akin to the High Court system whereby a district judge is available on duty all the time. I am surprised to hear that that is not the case. The fact that the court does not sit at weekends is not a good enough reason. I will consider what the noble and learned Baroness has said and I thank her for her reply.
Clause 75 agreed.
Clause 76 : Use of live link in extradition proceedings.
152AKG: Clause 76, page 92, leave out lines 37 and 38 and insert—
“(i) an initial hearing;(ii) an extradition hearing within the meaning of that Part;(iii) an appeal under section 26 or 32;(iv) a hearing under section 54 or 56,”
This deals with live links in criminal proceedings. Live links can be very useful, but they have their limitations. The main limitation is quite practical: there are not enough live-link studios in courts or prisons to enable there to be suitable conference facilities for lawyers representing an accused person. Although it may be efficient for a prisoner not to be brought to court, it causes considerable difficulties.
I have no objection to live links being used on the renewal of applications to hold a person in custody or matters of that sort, but for someone who has been subjected to a request for extradition and arrested under a European arrest warrant or by reasonable warrant from another country such as a part 2 country, it is important for there to be proper opportunities for their lawyers to consult them and for the court to have before it the body of the person who has been arrested. We suggest that at an initial hearing there should be no live links, and nor should there be at the actual extradition hearing or appeal—except with the consent of the person concerned.
Quite recently, I represented somebody from Belgium who was held in one of Her Majesty's prisons in London. He did not come to court for the whole of the proceedings—not even to plead or be sentenced—because he was suffering from sciatica. Those who have suffered from sciatica will know that you would not wish to be carried in a prison van across London under any circumstances. Accordingly, he consented to the use of a live link. The difficulties that I have expressed to your Lordships were then apparent to me but, nevertheless, because the client consented, that was sufficient. But what is proposed here is that the initial hearing and the extradition hearing could be held without the consent of the person concerned. That is going too far.
One of the purposes of a judicial hearing should be to monitor the manner in which the detained person is being held to see if there are any complaints. Another difficulty arises with translation. If the person who has been arrested cannot speak English, it is extremely difficult to communicate over a live link with an interpreter present. It is quite different when the interpreter is present with the particular person in court. Any difficulties can then be ironed out, but with a live link it is very difficult indeed. In fairness to those who are simply unconvicted and arrested under these provisions—they are not to be regarded as criminals—I suggest that live links without their consent is a step too far. I beg to move.
My Lords, in order to understand the context of the noble Lord's amendment, we should look at how this matter is dealt with in practice. The first point to make about Clause 76 is that there is currently only one court in England and Wales that hears European arrest warrant and extradition cases. If a person is arrested in Durham, for example, that person is currently required to travel to London for both the initial hearing and any subsequent remand hearings that there may be.
In the vast majority of cases, the initial hearing is very short and looks only at whether the person is in fact the person sought by the request, and whether the offence for which the person is sought is an extradition offence. Those are the two matters addressed at the initial hearing. It is also important to note that Clause 76 will not apply to the substantive hearing, where the subject of the request will be able to make detailed representations in relation to the extradition request in person.
The second point to make is that a live-link direction will be made only where the judge decides that it is in the interests of justice, and that there is a specific power in the Bill pursuant to which a judge may rescind a live-link direction before or during a hearing. Although I understand the noble Lord’s concern that there could, in a given case, be a problem with interpretation via a live link, in the unlikely event that that occurs, the judge would have the power to rescind the live-link direction where it would not be in the interests of justice to continue. The hearing would then be adjourned to take place at a later date in person, and the person would be driven from wherever they happened to be in the country to London to be heard.
It is important to understand that the noble Lord’s amendments would have two principal effects. First, they would further limit the kinds of hearings that can take place via a live link by excluding initial extradition hearings from the scope of the provisions. I hope that he will accept that live-link connections are advantageous and that good evidence is heard through that medium. Furthermore, the amendments would mean that live links could take place in any case where an interpreter is required. Therefore, the effect of his amendments would be to drastically limit the use of Clause 76.
We are satisfied that there are sufficient safeguards to ensure that the provision works fairly and in the interests of justice. Most importantly, the provision will remove the need for lengthy and unnecessary journeys frequently made to the City of Westminster magistrates’ court in London and ensure that the public’s money is not wasted in paying for those journeys, especially when the two issues that we want to understand are, first, whether the person arrested is the right person and, secondly, whether the offence for which the EAW was issued is an extraditable offence. Those are the only two matters decided in the initial hearing, and we think that the judiciary can be trusted to identify any injustice in the matter continuing by live link. If the judge is alerted to that being unfair, he or she can stop it and the matter can proceed on an adjourned basis.
The suggestion that Clause 76 would allow the main extradition hearing to be by live link is simply not correct. I invite noble Lords to read new Section 206A(1)(a)(i). Your Lordships will see that we anticipated that that might be a concern. We have restricted the provision narrowly to focus on the initial hearing because we absolutely accept that the initial hearing can properly be done by live link. The substantive hearing could be by live link, as the noble Lord said, if the individual consented and thought that it was more convenient, but Clause 76 does not apply to the substantive hearing. It only lets us get the case in order in a way that is cost-effective, as opposed to just cost-efficient. I know that noble Lords will think that Her Majesty's Treasury right now needs to be appropriately jealous about how it spends money, especially on travel.
My Lords, I am not so much concerned about the Treasury's expenditure; I am much more concerned with the justice and liberty case. The noble and learned Baroness says that the initial hearing is often very short. It may be short in court, but there is frequently a period when advice has to be given, instructions have to be taken, and it is important that the person be there for those purposes. However, I am heartened by her emphasis that it is always for the judge to determine whether it is in the interests of justice, and to note something that I had obviously overlooked—that the hearing itself cannot take place by live link unless the defendant consents. Those are very important reassurances, which I hope will be carried up and down the breadth of the judiciary who may have to deal with these cases. On that basis, I beg leave to withdraw the amendment.
Amendment 152AKG withdrawn.
Amendments 152AKH and 152AKJ not moved.
Clause 76 agreed.
Clause 77 : Security planning for airports
152AL: Clause 77, page 95, line 24, at end insert—
“( ) The Serious Organised Crime Agency may at any time nominate one individual to be a member of the group.
( ) The Secretary of State may at any time nominate as a member of the group an official of the Secretary of State who exercises functions relating to immigration.
( ) The Secretary of State may at any time nominate as a member of the group an official of the security services.
( ) The group must permit a representative of the police authority for the relevant police area to attend meetings of the group as an observer.
( ) The group must permit an individual who appears to the manager of the aerodrome to represent the interests of the operators of aircraft who take off from, or land, at the aerodrome to attend meetings of the group.”
My Lords, Amendments 152AL, 152AM, 152AS and 152AT are probing. They relate to the membership of risk advisory groups and security executive groups. Amendments 152AL and 152AM probe why the membership of the risk advisory groups—that is, the bodies charged with determining the risk profiles at airports—is different from the membership of the security executive groups. In particular, the UK Border Agency and SOCA are not included. Does that suggest that illegal immigration and organised crime are not threats that affect or make use of airports and air transport? That seems on the face of it rather odd.
Amendment 152AM follows from those amendments. Does the Bill provide for the Secretary of State to appoint individuals from those organisations to attend meetings of the group? How will the group operate? Will it be flexible? The question remains: why are those organisations not members of the risk advisory group? Why is there a discrepancy between that group and the security executive group? Is that just an oversight, or is there a deliberate difference and, if so, why?
Amendments 152AN and 152AM concern what is called level 2/3 policing. In the other place, the Government rejected an amendment that would have required the chief officer of police in that airport area or a chief officer of police of another force with a lead for level 2/3 policing to be a member of those groups. That was on the following grounds: first, that the force in the area where the airport is located should have responsibility, because the chief constable of that force is ultimately responsible for the police services agreement and has to sign it off; secondly, that it would cut off links with the local community or hamper community intelligence; and, thirdly, that the Minister was sure that, where there were collaborative arrangements because of the location of airports, the chief constable of the local police force would in any event consult other forces, even if he was not in the lead. In effect, this is a compromise amendment to allow both for the local chief constable to be a member and the lead chief constable for any collaboration agreement to attend as an observer. It is important to try to bring those two together.
Finally, Amendments 152AL and 152AS would allow the Secretary of State to nominate as a member of those groups an official of the Security Service. That seems entirely appropriate. I am surprised that a similar nomination is not made in relation to the Centre for the Protection of National Infrastructure. The question is: should not the CPNI also be formally represented on those groups, given that airports are a part of the country’s critical infrastructure?
The final amendment in the group, Amendment 152AU, is a probing amendment to determine why it is necessary for separate groups to exist if an individual may be a member of both groups. That seems a bit bureaucratic.
The amendments tabled by the noble Lord, Lord Bradshaw, would allow an aerodrome manager to procure the services of another police force from another relevant police area or from alternative police providers approved by the Secretary of State. These proposals pose some difficulties of jurisdiction, but I agree with the amendment that requires that, in determining disputes about the cost of policing, the Secretary of State should have regard to whether an alternative police provider would make a different resource judgment based on identified risks. I beg to move.
I have tabled a number of amendments in this group on the policing of aerodromes. The representations that have been made to me are that the chief constable of an area is in a monopoly position in selling his services to the airport operator and, what is worse, the airport operator has no option but to accept the bill that the chief constable sends him. This is foreign to much of the way in which commerce is conducted. While policing services are not commerce in the ordinary way, they are services. I am talking not about allowing anybody who puts himself up as a security agent to provide airport security services but about using properly warranted police officers. In most of my amendments in this group and the next, I am arguing that the airport operator should have a choice. If he receives a policing plan that he regards as extravagant, he should have the option of going to another warranted police force or, at least, of appealing to the Secretary of State if he is being, in his view, put upon.
I cite a totally anonymous example of an airport where the chief constable is, shall we say, a little afraid of his shadow; he opts for providing an armed police service at the airport, which is left with no alternative, as the Bill stands, but to pay up. I can assure noble Lords that a number of airports are not in a position to pay for expensive services.
I suggest that there are several possible alternatives. If you were the airport manager at, say, East Midlands Airport, the Leicestershire, Derbyshire and Nottinghamshire police forces are in close proximity and a competitive tender for the provision of policing services could be sought from each chief constable. If you were at Gatwick, you might choose to go to the Sussex Police or the British Transport Police, which is already on the premises, to provide policing services. I know that one of the objections voiced by officials is that the British Transport Police does not have armed officers, but it guards probably the most iconic target for terrorists in this country—the London Underground. It can call on armed officers if they are required, although one wonders what, in the close confines of the Underground or certain airport terminals, armed officers would actually do because of the problem of collateral damage.
I have described my amendments and shall be interested to hear what the Minister has to say in reply, because it is typical business practice these days that wherever possible people should have an alternative if someone is seeking to provide a service from a monopoly position.
My Lords, I support the amendments tabled by the noble Lord, Lord Bradshaw. We are talking about a situation where the users are paying for the specific work of policing at airports, which is not normal. To some extent, the police authority has the airport over a barrel. It will decide and say how much it is going to cost.
I had this experience 20 years ago when I was working on the Channel Tunnel. All the frontier control authorities made bids to have the maximum facilities and maximum number of people there—of course, it was all very necessary in their books—and Eurotunnel had to provide a police station at Folkestone for 80 officers. It was complete with everything that they could possibly want, including darkened windows so that nobody could look in. It was for everything apart from law and order, which was still going to be done by Kent Police. The cost to the company was enormous. One day, I asked the head of the police what they would have done if they had had to fund it themselves. The answer was that they would have had two policemen visiting part-time from Ashford. I was shocked by that. They were being greedy. I know that they needed money and wanted to have all the lovely equipment but, in terms of a judgment about what is required, the difference between two part-timers and 80 takes some beating.
I fear that we have the same situation today. Of course, the police will say that everything is necessary and that they have to have the most wonderful equipment. As the noble Lord, Lord Bradshaw, said, the British Transport Police could do an extremely good job. With the Metropolitan Police’s record on using firearms in the Underground, it is probably better that there are no firearms around. More seriously, as the operator has to pay, it is entirely reasonable that he should be able to get more than one quote, including one from the British Transport Police, because at somewhere like Birmingham International Airport the BTP will be on the railway but will not be allowed to take one step into the airport. That is crazy; it will come up in a later amendment. I hope that my noble friend will have something positive to say about this and, most important, will explain how the airport operator can be protected from the monopolistic and sometimes grabbing attitudes of the police, who know that they have the operator over a barrel.
The 10 amendments in this group deal with a variety of issues. I sense that the issues that the noble Baroness, Lady Neville-Jones, is dealing with are slightly different from those to which the noble Lord, Lord Bradshaw, and my noble friend Lord Berkeley have just referred. I shall attempt to answer all the points in my response.
The first set of amendments proposes various changes to the membership of risk advisory and security executive groups. I shall deal first with the make-up of risk advisory groups. Amendment 152AL, moved by the noble Baroness, proposes that the Serious Organised Crime Agency, officials dealing with immigration and the security services should all be granted an automatic right to representation on the risk advisory group.
Let me explain how membership arrangements for this group will work. Those persons who must, as a minimum, attend the group are those who represent the airport operator and the police. This is because, at the very smallest of the qualifying airports, this would represent the minimum level of membership at which basic risk assessment could be conducted. In practice, however, we expect that, in the very large majority of cases, additional security partners from a range of entities will need to attend in order for a full assessment of risk to be undertaken. However, different airports will need different risk advisory group members, which is why the airport operator has been provided with a wide-ranging power of nomination. This is there to ensure that those persons who need to attend the group in order for it to function effectively can do so.
National guidance will provide further information about risk advisory group membership. This will include, for example, reference to the appointment of airline and UKBA representatives. At some airports, it will be appropriate for the Serious Organised Crime Agency to attend risk advisory group meetings. Where this is the case, we expect the aerodrome manager to use his power of nomination to appoint them.
We do not believe that the police authority should attend meetings of the risk advisory group, as the function of this group is to allow for the expert consideration of threat and risk. The police authority will, however, have a role to play in the resourcing decisions taken by the security executive group; the Bill’s existing powers of nomination will permit this.
On the appointment of security services representatives to the risk advisory group and the security executive group, which Amendments 152AL and 152AS propose, we agree that there is a role for the security services to play in contributing to the information considered by the groups. This information is presently provided to existing risk advisory groups by means of a threat assessment that is issued regularly by TRANSEC. In some cases, where necessary, information is also delivered directly to risk advisory groups by a security services official. This will remain the case under these new provisions. Representatives of the security services will not normally need to attend security executive group meetings, as these discussions will relate primarily to the resourcing of measures.
Amendments 152ANA and 152BFA, to which the noble Lord, Lord Bradshaw, spoke, seek to make it possible for a range of “alternative policing providers” to police an airport, the intention being to allow an airport operator effectively to put airport policing out to competitive tender. Other Home Office forces, the British Transport Police and private forces could all bid for the contract. It will not come as a surprise to the noble Lord when I say that I am afraid that we cannot accept these amendments. We consider it an important principle for airport security that the responsibility for policing decisions at an airport should reside with the local Home Office force, a view that is supported by the Association of Chief Police Officers.
Whether you are dealing with terrorism, serious and organised crime or simply petty crime, local intelligence has been shown to be essential in the delivery of effective policing. Creating a situation in which one force polices the airport while another polices the community outside makes little sense. The two policing roles are interlinked and it would be complex and impractical for force activities to be split in this way. In the event of a serious incident, the local force would inevitably have to supplement the airport police, complicating investigations and causing complex command and control arrangements.
I am grateful to my noble friend. Can he explain the boundary between the BTP’s policing of Birmingham International station and the policing of Birmingham International Airport? There are just as many problems there. If the BTP, with its expertise, is capable of policing the whole railway network, why cannot it police an airport? If it did, there would be no conflict at the boundary between the two.
I am grateful to my noble friend for that intervention. We will discuss the jurisdiction of the BTP when we consider Amendment 159EA in the name of the noble Lord, Lord Bradshaw, a little later. My noble friend said a moment ago that the work of the BTP had to stop at the railway station and could not go on to the airport if a crime was being committed that had started at the station and went on to the airport. That situation would not apply, because the BTP has full jurisdiction to continue an investigation, and possibly a chase, if a crime started at the station and went to the airport. As I say, however, we will come back to this when we consider the amendment in the name of the noble Lord, Lord Bradshaw.
I recognise the importance of ensuring that policing services are cost-effective—a point made by the noble Lord, Lord Bradshaw. I assure the Committee that, under the new framework, we expect discussions to explore alternatives to policing and to consider policing within the context of all security measures that are in place. Indeed, chief officers will not want to deploy more resources than are required when they could be better used elsewhere.