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Policing and Crime Act 2017 (Consequential Amendments) Regulations 2018

Volume 788: debated on Wednesday 7 February 2018

Motion to Approve

Moved by

My Lords, I am sure that noble Lords will recall with fondness the debates we had on the Policing and Crime Bill last Session. The Bill received Royal Assent a little over a year ago, on 31 January 2017, and many of its provisions are already in force, with a number of further measures due to be implemented on 1 March or 1 April. These draft regulations support the implementation of the Act.

Noble Lords will recall that the Act contains several important reforms, a number of which are relevant to these draft regulations. Part 1 of the Act enhances the accountability arrangements for fire and rescue services in England. In London, this means abolishing the London Fire and Emergency Planning Authority and giving the Mayor of London direct responsibility for the fire and rescue service in the capital, with operational responsibility for the service being vested in the London Fire Commissioner. In the rest of England, the Act enables directly elected police and crime commissioners to take on the functions of fire and rescue authorities where a local case is made.

Part 2 of the Act strengthens public confidence and trust in the police by reforming and simplifying the police complaints and disciplinary systems. Part 3 enables chief constables to make more effective use of police staff and volunteers, freeing up police officers to focus on those tasks that need the core powers of a constable. Part 4 introduced important reforms to pre-charge bail, particularly to ensure that the arrangements for police bail properly balance the rights of individuals and the need to protect the wider public. Part 4 also closed gaps in police cross-border arrest powers, enabling a constable in one UK jurisdiction to arrest a person wanted in another jurisdiction without first having to obtain a warrant.

The 2017 Act gave effect to those reforms by amending key policing and fire enactments, including the Police Reform Act 2002 and the Fire and Rescue Services Act 2004. However, as is often the way, substantial consequential amendments to other enactments were also needed. While many of these were made in the Policing and Crime Act itself, we anticipated that other necessary consequential amendments might come to light as part of the implementation process. Accordingly, Section 180 of the Act includes a standard power to make such consequential amendments, and these draft regulations derive from that power.

Many—indeed, most—of the consequential amendments made by these draft regulations are technical in nature. They are described in detail in the accompanying Explanatory Memorandum so I will confine my remarks to the substantive provisions. First, as I have said, the 2017 Act alters the governance arrangements for fire and rescue in London. From April this year the London Fire and Emergency Planning Authority will be abolished, with day-to-day responsibility for the fire and rescue service transferring to the new London Fire Commissioner. The commissioner will be directly accountable to the Mayor of London, supported by a new deputy mayor for fire. This change has the full backing of the current mayor.

It is expected that many of those aspiring to be appointed as London Fire Commissioner will be members of the existing firefighters’ pension scheme. A successful candidate would, quite understandably, want to retain their membership of the scheme upon their appointment. Clearly, we should not put artificial barriers in the way of experienced senior firefighters applying for this post, thereby limiting the pool of suitable candidates. The mayor, for the time being, should be able to appoint the best available candidate to the office of London Fire Commissioner. Regulations 2 and 10 of the draft regulations therefore make the necessary amendments to the Fire Services Act 1947 and the Fire and Rescue Services Act 2004 to allow for continuity of membership of the firefighters’ pension scheme where an existing member of the scheme is appointed commissioner.

Outside London, the 2017 Act provided for any change to the governance of fire and rescue services to be locally determined. Noble Lords may be aware that in October last year the Police and Crime Commissioner for Essex, Roger Hirst, became the Police, Fire and Crime Commissioner for Essex. We have also received proposals from the PCCs in Cambridgeshire, Hertfordshire, Northamptonshire, North Yorkshire, Staffordshire and West Mercia to take on the functions of the fire and rescue authorities in their areas. We are currently considering these proposals and aim to make an announcement soon.

This reform provides the backdrop for the consequential amendments made by the schedule to the draft regulations. Fire and rescue authorities are subject to a wide range of local government and other legislation that governs how they operate. The Policing and Crime Act itself made a good many consequential amendments to modify such legislation to ensure that it could continue to operate where the functions of a fire and rescue authority were taken on by a PCC. We have identified a small number of further enactments which also need to be amended, in particular the Local Government Finance Act 1988, which makes provision for the financial administration of fire and rescue authorities.

Lastly, I should explain the amendment to the Contempt of Court Act 1981 made by Regulation 4. This is consequential upon the reforms to pre-charge bail which came into force last April. These reforms addressed the real concern that the then arrangements for police bail could result in some individuals spending a significant period of time subject to pre-charge bail, only for them not to be charged or, if charged, found not guilty. Such a prolonged state of uncertainty was undoubtedly extremely stressful for the individuals concerned, particularly if they were subjected to demanding bail conditions.

The Act addressed such concerns by, among other things, creating a presumption in favour of release without bail and setting clear time limits. Where pre-charge bail lasts longer than 28 days, the police must demonstrate that it is both necessary and proportionate. In the 10 months in which the new regime has been operating, we have already seen a significant reduction in the number of individuals subject to pre-charge bail.

Among other things, the Contempt of Court Act 1981 is designed to ensure that a defendant’s right to a fair trial is not prejudiced by adverse publicity during the period of the police investigation and pre-trial. It places restrictions on the publication of potentially prejudicial material which apply while an investigation is, in the language of the 1981 Act, “active”. This is known as the strict liability rule. The draft regulations extend the definition of “active” so that the protection afforded by the strict liability rule applies in a case where a person is released without bail while a police investigation continues.

I reassure the House that we are not aware of any case where the lack of protection from the strict liability rule under the reformed police bail system has been prejudicial to the case. Even where the strict liability rule does not apply, publications can still be convicted of contempt where it can be shown that there was intent to prejudice a case. Regulation 4 simply returns the position on contempt to where it was before the reforms were made.

The Policing and Crime Act is transformational legislation helping to drive improved efficiency, effectiveness and accountability of policing and the fire service. As I have said, many of its provisions are already in force and we are on course to implement further provisions this spring. The draft regulations support the implementation of the Act already approved by your Lordships’ House in the previous Parliament, and I commend them to the House.

My Lords, I thank the Minister for introducing the statutory instrument. The House will forgive me, but my body has decided to go sick two days early, so if I do not make much sense, that probably accounts for it.

The complexity involved in the instrument is staggering. It involves 12 pieces of primary legislation and has 32 footnotes. As far as I can see, the instrument is reasonably innocuous, but I am concerned that people will find it impenetrable. I engaged my noble friend Lady Hamwee to help me to interpret it, and she assured me that if she had eight hours uninterrupted, she could probably be more certain about the impact. With the Brexit legislation to come, when similar statutory instruments may come in a blizzard to this House, the House will be concerned about its ability properly to scrutinise them.

I do not want to go over the discussions we had during the passing of the Act, but I will refer to what the honourable Member for Sheffield, Heeley, said yesterday when these matters were discussed in the other place around the limitations on pre-charge bail. The concern, which we share, is that now that a suspect is likely to be released pending further investigation but not on bail, the suspicion hangs over that individual and they never know whether they will be arrested again, whereas when they were released on pre-charge bail, there was a specific time when that person would come back to the police station. There was a limit to the uncertainty.

We not only argued from my professional experience but quoted evidence from the Police Superintendents’ Association and from the professional bodies in policing that the 28-day limit was not sufficient, bearing in mind the sorts of inquiries that have to be done now in terms of investigating computers, mobile phones and so forth. Can the Minister give us some reassurance about whether, contrary to what the law change was supposed to achieve—that is, to bring investigations quickly to a conclusion—this change may have the opposite effect?

My Lords, first, I draw the attention of the House to my registered interest as a councillor in the London Borough of Lewisham and as a vice-president of the Local Government Association.

The regulations before the House this afternoon make a number of changes as a consequence of the Policing and Crime Act 2017 coming into force. These changes, as we have heard, cover reform of the governance of fire and rescue authorities in England, including the abolition of the London Fire and Emergency Planning Authority, known as LFEPA. The regulations also makes changes to the police disciplinary framework and pre-charge bail. They extend the powers of police civilian staff and volunteers and strengthen the powers of cross-border arrest.

Dealing with LFEPA first, I am happy to support the proposal to abolish it and replace it with the London Fire Commissioner. It will then be for the Mayor of London to appoint a deputy mayor for fire as he puts in place the governance structure that is needed to deliver these vital services for Londoners. The governance structure being abolished was set out in the Greater London Authority Act 1999, which established the London Fire and Emergency Planning Authority. It is important to put on record our thanks to all the members of this body, past and present, for the service they have given over the last 17 and a half years of its existence.

It is of great credit to the authority, and the firefighters and other staff who work for it, that during its existence, with an increasing population in London, the number of dwelling fires has reduced. This reduction is attributed to the success of community safety initiatives and the increase in smoke-alarm ownership. One of the first actions of the LFEPA was the introduction of the first community safety strategy, approved in September 2000. This strategy changed the focus of the London Fire Brigade from being a mainly reactive emergency response service to a proactive service with fire prevention at the core of its activities. Since then, London has enjoyed a long period with the number of fires falling. In 2000, there were around 50,000 fires every year in London, which is now down to around 20,000.

I pay particular tribute to the outgoing chair of the authority, my good friend Dr Fiona Twycross AM, who has led the authority for the last year and has met and delivered on many challenges in that time, but who also, in the previous four years, led the robust opposition to the cuts in the fire service proposed by the previous Mayor of London, Boris Johnson. With the election of Sadiq Khan as Mayor of London, we have seen a much more pragmatic and sensible attitude to the fire service in London, and that is very welcome.

The regulations also make various consequential amendments, inserting the London Fire Commissioner where LFEPA previously had statutory responsibility, and I am content with those proposals.

The regulations make further amendments to governance arrangements outside London. If possible, can the Minister say a little more about how many PCCs are taking over the control of the fire and rescue services? I know she mentioned a number of them, but how far have they gone to take over these services? I know that the paper makes reference to Essex—and again we put on record our thanks to members of all those fire authorities that will be abolished as a consequence of PCCs taking over responsibility for fire and rescue services. These are challenging times, and we should thank those who have served on those authorities.

The amendments to the Contempt of Court Act 1981 give individuals the protections that they would have received to ensure that they receive a fair trial, if the matter comes to trial, by ensuring that the course of justice is not impeded by political prejudice or adverse publicity. I recall our debates on this issue when the Act was passing through Parliament. I support the changes today, but it would be good to know from the Minister how many fewer people would need this protection if the Government had listened to the police and others, including Members of this noble House, who suggested that 56 days rather than 28 days was a more realistic timescale for releasing individuals on police bail, as the machinery of investigations and things like forensics just cannot complete their work in a majority of cases within 28 days. That leaves people released while under police investigation, not police bail, and potentially at risk of action which is prejudicial to them being taken against them. No one wants to see anyone on police bail for extended periods, but if we have just substituted being on police bail with being under police investigation, it begs the question what has been achieved here.

The other provisions in the regulations make fairly minor amendments in provisions concerning disciplinary procedures for former members of police forces and former special constables, the powers of police civilian staff and volunteers and the closing of a gap in the cross-border powers of arrest, which I am content to agree to. With those points that I have raised, I am content with the regulations today.

Before the Minister steps up, I would like to echo the comments of the noble Lords, Lord Kennedy and Lord Paddick, about the 28-day rule. Would the Minister be prepared to agree that the Home Office or the inspectorate should examine in a year’s time, after the enactment of all this, as to whether this limit works? Intuitively, it does not; intuitively, certainly when we look at the stuff that we have heard recently about rape cases collapsing because the material had not been looked at, 28 days is almost an impossibility in a serious case, if there was only one case. We know that rape investigators in London are carrying 25 cases simultaneously, which means that they have to deal with all this in one day, effectively. There is something very honourable in the attempt to keep people off police bail, but, intuitively, this may go absolutely wrong. I would like the Minister to agree to seek agreement from the Home Office or HMIC that this matter be reported back to this House in 12 months’ time as to the effects of this well-meant provision.

My Lords, I thank noble Lords for their contributions to this debate, and wish the noble Lord, Lord Paddick, well. I hope that he does not spend the whole of the Recess in his sick-bed.

I am grateful for the support for the draft regulations, although it is fair to say that some of the debate has touched not on the provisions but on some of the substantive reforms made by the Policing and Crime Act. I welcome the fact that the noble Lord, Lord Kennedy, has reiterated the Opposition’s support for the establishment of the London Fire Commissioner. The current governance arrangements in London can lead to confusion, with the mayor being accountable for setting the annual budget but decisions relating to fire and rescue provision being determined by the London Fire and Emergency Planning Authority. Previously, this has led to a breakdown in decision-making, with the previous mayor having to repeatedly use his direction-making powers to resolve conflicts, which is time consuming and costly. That was clarified by the noble Lord’s comments. The changes in the 2017 Act will strengthen democratic accountability by giving the directly elected mayor greater responsibility for fire and, crucially, streamlining decision-making to assist in making future demands on fire and rescue services in London.

The mayor, both now and in the future, should be able to appoint the best available candidate to the office of London Fire Commissioner. The changes made in the draft regulations to firefighters’ pension arrangements will ensure that this is the case. Indeed, failure to make the changes provided for in the draft regulations is likely significantly to reduce the pool of suitably qualified candidates for the post in the future.

The noble Lord, Lord Kennedy, has reiterated his party’s previous opposition to the provisions of the 2017 Act enabling a police and crime commissioner to assume the functions of their fire and rescue authority where a local case has been made. He asked about the current status of the proposals that have been put forward by various PCCs, and I can recall a number of PQs on the subject. The House will be aware that the first police, fire and crime commissioner was established in Essex last October. The Home Office has also received fire governance proposals from the PCCs of Northamptonshire, Hertfordshire, Cambridgeshire, Staffordshire, West Mercia and North Yorkshire, as the noble Lord said. He asked for an update on where the various proposals were up to. The proposal from Northamptonshire is currently being considered, but it would be inappropriate for me to comment further at this time. The other five proposals encountered objections from a number of relevant local authorities. In such circumstances, the legislation requires the Home Secretary to obtain an independent assessment of the proposals. These assessments have been carried out by the Chartered Institute of Public Finance and Accountancy, and we are currently considering carefully CIPFA’s conclusions alongside each PCC’s proposal and consultation outcomes. My right honourable friend the Home Secretary will announce her decision on each of the five proposals shortly.

The noble Lord, Lord Paddick, asked how the reforms to pre-charge bail were operating in practice. Since the introduction of the reforms in April 2017, there has been a significant fall in the use of pre-charge bail. This is to be welcomed and is in line with one of the core objectives of the reforms; the fall demonstrates that the reforms are having the desired effect. We will continue to monitor the impact of the changes and, to this end, we are working closely with the national policing lead for bail and with other agencies involved in the criminal justice process to ensure that the balance remains right and bail continues to be imposed where it is necessary and proportionate.

The noble Lord, Lord Paddick, also asked, given the lack of limits on the length of time an individual may spend under investigation, how individuals who are released under investigation rather than on bail are any better off. While the reforms limit the length of time an individual can be on bail, they do not and were never intended to impose limits on the length of time an individual can spend under investigation. Nevertheless, chief police officers are being encouraged to examine the way that their forces handle cases of those released under investigation—that is, without bail; the noble Lord knows that—in order to ensure that the reforms to pre-charge bail do not inadvertently lead to longer investigations. However, the principle of operational independence means that the management of investigations, including their duration, is a matter for police forces under the direction and control of chief officers. The Government do not have any plans to amend the legislation in this area.

The noble Lord, Lord Blair, asked about pre-charge bail and how the reforms are working out in practice. The Home Secretary, Justice Secretary and Attorney-General are overseeing this work through the Criminal Justice Board, whose members also include the Director of Public Prosecutions and Sir Brian Leveson.

I hope that I have responded satisfactorily to noble Lords’ questions and I beg to move.

Motion agreed.