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(4) SOCA may—
(a) pay, or make payments in respect of pensions or gratuities to or in respect of any persons who are or have been police members;
(b) provide and maintain schemes (whether contributory or not) for the payment of pensions or gratuities to or in respect of any such persons.
(5) Before exercising its powers under sub-paragraph (4), SOCA shall have regard to any provision made under the Pensions Act 1976.'.
Mr. Andrew Mitchell: The purpose of the amendments is to create a category of front-line officers of SOCA, classed as police members. Under our new clause and amendments, police members would have the powers that police officers, Revenue officers, Customs officers and immigration officers currently exercise. The amendments would remove the confusion that the mix-and-match designations of part 1, chapter 2 anticipate.
The amendments revert to issues that my hon. Friends and I raised in Standing Committee on 11 January. We listened carefully to the Under-Secretary's response to those amendments. We took her comments into account and our amendments are now a little different from those that we tabled previously. We were encouraged when she told us on Second Reading and in Committee that she would consider drafting amendments on training.
Some of the Under-Secretary's comments in Committee seemed to us to arise from a misapprehension about the intent and effect of our amendments, and I therefore wish to deal with that misconception at the outset. I believe that the Under-Secretary may have understood our amendments to have the effect that all SOCA staff would have to be police constables. That was a misunderstanding on her part.
SOCA will have many members of staff, including accountants, forensic scientists and staff who have come from the Crown Prosecution Service. Some staff will come from Customs. Others might come from the Financial Services Authority. No doubt there will be
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lawyers—probably many lawyers. There will be support staff—secretaries, chiefs of staff and so on. Nobody in their right mind would suggest that they should all be required to hold the post of constable.
The debate deals with front-line staff. By that I mean those who will exercise powers of entry, investigation, seizure and arrest. The thrust of our amendments is that those front-line staff should hold the office of constable. We do not mean the tea boy, the backroom staff or the lawyers, but those who exercise police powers. They should be constables.
Lying behind those amendments are some points of fundamental difference between us and the Government. The Under-Secretary said in Committee:
"I strongly refute the argument that only police officers can be entrusted with police powers."—[Official Report, Standing Committee D, 11 January 2005; c. 38, 37.]
We disagree with both assertions.
Let me deal with two crucial matters that need to be understood and fully appreciated before our amendments can be considered. The first is the historical significance and importance of the office of constable. The second is an understanding of the way in which the Bill, as presented, proposes to give what might broadly be described as "police powers" to SOCA staff.
Although today's police forces are the creation of statute and the police have numerous statutory powers and duties, from a legal point of view, a police force is essentially neither more nor less than several individual constables, whose status derives from the common law. The office of constable dates back to the parish constable, who, by the beginning of the 17th century, was responsible for the preservation of the peace in his bailiwick and for the execution of the orders and warrants of the justices of the peace. The constable's oath and close relationship with the justices of the peace characterised him as a ministerial officer of the Crown, like a sheriff or the JPs themselves, rather than as a local administrative officer. In short, constables have never been civil servants.
Various enactments were passed in the 19th and 20th centuries, providing for the establishment of police forces. Powers were not conferred on members of police forces as such, but a member of a police force on appointment had to be attested as a constable by making a declaration. A member of a police force now has all the powers and privileges of a constable throughout England and Wales.
The hallmark of the present day constable therefore remains, as it was in the 17th century, his attestation. Until so attested, constables have neither the authority nor the status of a constable. Once attested, the constable holds that office. That applies equally to members of police forces, special constables, and, of special note, the director general and police members of the National Crime Intelligence Service and the National Crime Squad.
I draw attention to the fact that, when Parliament created NCIS and the NCS, it wisely saw fit to maintain the significance of the office of constable by creating a
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category of police members of those organisations. The Bill will abolish NCIS and the NCS and absorb those organisations into SOCA. What, then, is the precise status of a police constable?
When carrying out his duties as a constable, a member of a police force—of whatever rank—acts as an officer of the Crown and a public servant. Constables' powers are exercised by virtue of their office, and unless they are executing a warrant, the powers can be exercised only on their own responsibility. A police constable who deliberately fails to carry out his duties by wilfully omitting to take steps to preserve the Queen's peace or to protect a person under attack commits a criminal offence—the common law offence of misconduct of an officer of justice.
The Crown is not liable for the wrongful acts of a member of a police force. Although a constable is an officer of the Crown and a public servant, his or her relationship with the Crown is not that of master and servant, nor that of principal and agent. He or she is a servant of the Crown only in the sense that any holder of a public office may be called a servant of the Crown or the state.
Why does that matter in 2005? The answer is that it has important consequences for the nature of policing and the independence of our police force. Police officers cannot be dismissed on notice; they cannot take industrial action; they have a duty to act and report both on and off duty; and they are completely politically impartial. Those have all been characteristics of our police for at least the past 175 years. They derive from the office of constable. That is of great importance to the nature of policing in Britain.
Many years ago, it was simple to become a constable. All one had to do was go before a magistrate and take an oath. Today, however, those who exercise police powers undergo extensive training. On being recruited to a police force, constables are appointed on a two-year probationary period. It allows a mix of intensive training at residential centres and training on the beat with a tutor constable. Every new recruit goes through exactly the same basic training programme, which lasts 15 weeks at a national police training centre, followed by further training on the job. Recruits are then on probation for two years before they become fully fledged police officers.
8.30 pm
Training is in four stages. Recruits spend two weeks at their local force training centre familiarising themselves with police procedures and with the law. They then receive their uniform and make an official declaration as a police constable before a local magistrate. There then follows a 15-week intensive residential course, with continuous assessment and exams, strenuous physical activity, self-defence training and teaching of the law. Trainees are taught how to understand the criminal mind, and how to treat people fairly; that is all part of the course. After this, they return to their home force and are allocated an experienced tutor constable who guides them through the routines of police work. Trainees are then considered suitable for independent control, and progress to more advanced training. After two years' probation, they are required to attend further training locally before being appointed to the rank of constable.
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Is that training appropriate? We think that it is. Is it necessary? We think so. However, the Minister seems to think that it is unnecessary. The Bill, as it stands, will allow the director general of SOCA to confer police powers on someone who is not a constable, and who has had none of the training that I have just described. Hon. Members might find that scarcely credible.
Let me turn to my second point. How does the Bill propose to grant SOCA staff police and other powers? Once we understand the present proposals for equipping SOCA staff with police powers, we immediately see that the Bill will create a deeply unsatisfactory regime, and that a radical rethink is clearly required.
Clause 41 gives the director general the power to designate a member of staff as a person with the powers of a constable, a customs officer or an immigration officer. Who can be designated in such a way? A safeguard that the person should already have been trained and be qualified to exercise those powers would provide at least some comfort. However, the clause expressly provides that any member of SOCA's staff can be given any, or all, of those powers, whether or not he is already qualified to exercise them. That will be rather like a sheriff in the wild west riding into town and shelling out badges willy-nilly to the locals, regardless of their training.
Let us look more closely at the process of designating a member of the staff of SOCA as a person having the powers of a constable. In the case of a designated constable, there is no requirement for this second-class constable to take an oath of attestation. He will have the powers of the constable, but not, it seems, their duties and responsibilities. The effect of clause 41(5) will be that, if an employee of SOCA was a constable before he became designated by the director general, his tenure of the office of constable will be suspended. So these second-class constables would be able, it seems, to take industrial action, just as customs and immigration officers can do at present.
It might appear from clause 44 that a designation as constable brings with it all the powers and privileges of that office, but that is not so. In fact, the designation made by the director general can be made subject to limitations as to the powers exercisable, or as to the purposes for which the powers are exercised. So there will be second-class constables with second-class powers. As I said in Committee, lawyers will have a field day trying to work out whether, in any particular case, the powers exercised by a constable designate were within his authorisation or were exercised for an authorised purpose. This will certainly not help to combat serious or organised crime. Worse still, persons can be designated as constables for a fixed period under clause 41(2)(b), and the designation, even if originally given without a time limit, can always be withdrawn.
The Police Federation reports that a straw poll of NCS officers shows that an overwhelming 95 per cent. of serving NCS officers stated that they were unwilling to transfer to SOCA. That is hardly surprising. Quite apart from the wholly unsatisfactory nature of the arrangements, from the point of view of those unfortunate enough to be designated as temporary, second-class, limited-power constables, what is the position for those over whom these constables designate seek to exercise their powers? When someone is challenged by a police officer, they are surely entitled to
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know what the powers of that constable are. Improper exercise of police powers is rare, and the fact that anyone can discover, if they wish to, what powers a police officer has, by virtue of his or her office, is a useful way of maintaining that state of affairs.
What will be the position if someone is challenged by a constable designate? How are they to know whether the designation is still in force, and more importantly, how are they to know whether the powers that the constable designate seeks to exercise have in fact been granted to him? Should constables designate carry round with them a list of the powers that the director general has decided to grant them, together with a list of those that they have not been granted? Of course, they will also need to demonstrate not only that they have the powers, but that they are exercising them for one of the purposes for which they have been authorised. There must be a better way to equip front-line SOCA staff with the powers that they will need.
I have explained, by way of background, what it means to be a police constable, and described the proposals in the Bill for creating pale imitations to deal with serious and organised crime. Having also painted a picture of the risks inherent in the mix-and-match scheme proposed in clause 41(2), I shall now turn to our amendments. Instead of the second-class constables designate proposed in the Bill, we propose to create a single category of front-line SOCA staff, to be known as police members of SOCA. To become a police member of SOCA, a person must be a constable, and have the powers and duties of a constable.
So this is, in a sense, an all-or-nothing situation. It is simple. In Committee, the Minister said that that was a disadvantage in our proposals, and that SOCA needed flexibility. To an extent, that is right. That is why we no longer propose that all SOCA police members should have all the rights of police officers, customs officers and immigration officers. However, we do not agree that it is sensible to create half-baked policemen and women, especially for SOCA. That might indeed be flexible, but it would be most unwise.
First, such a move would lead to a bureaucratic nightmare in which everyone had a different suite of mix-and-match powers, limited as to time and purpose, and constrained as to extent. Secondly, it would lead to a defence lawyers' field day. When the bust took place, they would ask, who exactly exercised which powers? Were the relevant individuals properly authorised? Who exactly seized which evidence? Which specific powers did that person have?
Thirdly, such a measure would massively overcomplicate the training requirements. It is surely much simpler to say that, if a person is to exercise police powers, they must have had police training. As has been said, that training programme is well established. It is tried and tested, and has proved to provide a coherent approach to the training that is necessary before the powers of a constable can be exercised. Let me make the same point in another way. Our proposal avoids the need for SOCA to reinvent the wheel in terms of police training. We agree that there should be provision for front-line SOCA officers to be able to exercise customs or immigration-officer powers and we propose to enable such powers to be added to the armoury of police members of SOCA.
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The powers of customs and immigration officers are not as extensive as the powers of a police officer, and that is reflected in the training requirements. Immigration officers receive five weeks' training in the case of passport control officers and eight weeks' training in the case of immigration enforcement officers. All entrants then serve a probationary period of one year. Customs officers have a structured, in-house, six-week pre-entry training programme that combines on-the-job training with residential courses. Following a six-week period, they are placed with a mentor for the first month of the job.
Under our proposals, a police member of SOCA may exercise the powers of an immigration officer or customs officer, but that is subject to a proviso. The proviso is, in either case, that the person has exercised those powers before or has undergone such training as would otherwise entitle him to exercise them. The advantage is, again, that it avoids the need to reinvent the wheel in terms of devising appropriate training.
Let me say something about our core proposals. Amendment No. 38 aims to provide a new definition of "police members of SOCA". I repeat that it refers to front-line staff. These men and women should be constables. There are other consequential amendments, but the gist is in that one. Under new clause 7, a police member of SOCA will have the powers of a constable. To those powers may be added the powers of a customs officer or immigration officer, provided that the person concerned has been appropriately trained or has exercised the powers before.
Let me try to put these important proposals in context. The whole purpose of SOCA, as we understand it, is to strengthen the powers available for the prevention and detection of serious organised crime. Essentially, those are policing functions, and the last thing that is required is for the SOCA front line to be staffed by second-rate policemen and policewomen. It seems to us that all front-line SOCA staff who exercise powers of investigation and arrest, and who exercise warrants and so on, ought to have the full range of powers of a police constable and be subject to the same duties. Our new clause and amendments allow those powers to be bolstered by the addition of powers that can be exercised by customs and by immigration powers, but they build in the necessary safeguards involving training or prior experience of exercising those powers.
Our proposals have the great merit of simplicity. The Government's proposals are too complex, and will lead to confusion. They will require the director general of SOCA to devise a complex bureaucracy for handing out and monitoring mix-and-match powers. They will require him to devise a series of training schemes. They will require him to start from scratch rather than building on available structures and experience. The Government say that that has the merit of flexibility; we think that a fairer description of their proposals is "a recipe for confusion".
Bold action is needed if SOCA is to have a realistic prospect of achieving its aims. Serious and organised crime calls for investigation and prevention by officers with serious and properly organised powers, and our new clause and amendments achieve that.
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