Serious Organised Crime and Police Bill

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Mr. Mitchell: The Minister is being unhelpful. This is an extra option to maintain the balance. She knows perfectly well that the chairman influences the committee not only by voting, but by participating in its work. This is another example of the Opposition's having come up with a helpful amendment to address the issue of political accountability.

Caroline Flint: My understanding is that the amendment would tie the chairman's hands, because in the event of a decision being made on a show of hands the chairman would have a casting vote. We believe that the chairman should have a vote in the same way as any other board member and, in the event of a tie, a second, casting, vote, to reflect the fact that the chairman should take part in the substantive discussion. Amendment No. 66 would restrict the chairman's voting rights.

The matter is one for the SOCA board to determine and to enshrine in the standing orders to be made under paragraph 17 of schedule 1. I invite the hon. Gentleman not to press the amendments.

Mr. Mitchell: I have listened to the Minister with care and am extremely disappointed that she did not find any of our three amendments sufficiently attractive to support them. I should have thought that all hon. Members would be able to support the point that the Opposition are making about the important difference between political accountability, with which we all strongly agree, and political control.

The Minister mentioned those who have already been appointed. I agree that Sir Stephen Lander is an outstanding public servant; I have no doubt that he will do an outstanding job. However, it is important that the board should be seen to be politically accountable and that the level of political control should be just and fair. We do not think that the Minister has said anything to refute my argument about that balance. We should like to vote on amendment. No. 64.

We shall return to issues of political control later in our deliberations, but at the heart of our case about political control is our belief that the Home Secretary should either have a controlling effect on the board—as he will if the amendment is defeated—or should control its priorities. The Bill would give the Home
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Secretary both those capacities, which we think is a bad idea. We shall table amendments later to try to redress the balance.

Question put, That the amendment be made:—

The Committee divided: Ayes 6, Noes 10.

Division No. 1]

Clappison, Mr. James Clifton-Brown, Mr. Geoffrey Djanogly, Mr. Jonathan
Grieve, Mr. Dominic Heath, Mr. David Mitchell, Mr. Andrew

Baird, Vera Brown, Mr. Russell Cairns, David Campbell, Mr. Alan Flint, Caroline
Griffiths, Jane Heppell, Mr. John Mann, John Taylor, Ms Dari Ward, Claire

Question accordingly negatived.

Paul Farrelly (Newcastle-under-Lyme) (Lab): On a point of order, Dame Marion. I am present in Committee but my name was not read out for the purposes of the vote.

The Chairman: I am sorry, but it is too late now. The numbers have already been announced.

Mr. Mitchell: I beg to move amendment No. 120, in schedule 1, page 120, line 28, after '9)', insert—

    '(aa) such persons appointed by SOCA under this paragraph as police members of SOCA,'.

The Chairman: With this it will be convenient to discuss the following amendments: No. 121, in schedule 1, page 120, line 36, after first 'SOCA', insert

    'or police members of SOCA'.

No. 108, in schedule 1, page 122, line 33, at end insert—

    'Police members of staff of SOCA

    13A A person shall be appointed as a police member of SOCA if—

    (a) he is attested or sworn as a constable and

    (i) he is a member a police force maintained under section 2 of the Police Act 1996;

    (ii) he is a member of the Metropolitan Police Force or City of London Police Force;

    (iii) he is a regular constable within the meaning of the Police (Scotland) Act 1967;

    (iv) he is a member of the Police Service of Northern Ireland;

    (v) he is a member of the Ministry of Defence Police appointed on the nomination of the Secretary of State under section 1 of the Ministry of Defence Police Act 1987;

    (vi) he is a member of the British Transport Police Force;

    (vii) he is a member of the States of Jersey Police Force;

    (viii) he is a member of the salaried Police Force of the island of Guernsey; or

    (ix) he is a member of the Isle of Man Constabulary;

    (b) he is an officer of Revenue and Customs, or

    (c) he is an immigration officer within the meaning of the Immigration Act 1971.

    13B(1) Subject to the provisions of this paragraph, the Secretary of State may make regulations as to the government and administration of SOCA and conditions of service within SOCA.

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      (2) Without prejudice to the generality of sub-paragrpah (1), regulations under this paragraph may make provision with respect to—

      (a) the ranks to be held by police members of SOCA;

      (b) the promotion of police members of SOCA;

      (c) voluntary retirement of the police members of SOCA;

      (d) the efficiency and effectiveness of police members of SOCA;

      (e) the suspension of police members of SOCA from membership of it and from their office as constables;

      (f) the maintenance of personal records as members of SOCA;

      (g) the duties which are or are not to be performed by the police members of SOCA;

      (h) the treatment at occasions of police duty of attendance at meetings of the Police Federations and of anybody recognised by the Secretary of State for the purposes of section 64 of the Police Act 1996;

      (i) the hours of duty, leave, pay and allowances of police members of SOCA; and

      (j) the issue, use and return of—

      (i) personal equipment and accoutrements; and

      (ii) police clothing.

      (3) Regulations under this paragraph for regulating pay and allowances may be made retrospective to any date specified in the Regulations, but nothing in this sub-paragraph shall be construed as authorising the pay or allowances payable to any person to be reduced retrospectively.

      (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.'.

    No. 74, in clause 38, page 21, line 12, leave out 'Whether or not' and insert 'only if'.

    No. 142, in clause 41, page 22, line 3, leave out from 'a' to end of line 4 and insert 'police member of SOCA'.

    No. 143, in clause 41, page 22, line 5, leave out 'The designated person' and inset 'A police member'.

    No. 144, in clause 41, page 22, line 6, leave out 'the designated person' and insert 'a police member'.

    No. 122, in clause 41, page 22, line 13, leave out 'the designated person' and insert 'a police member'.

    No. 123, in clause 41, page 22, line 16, leave out 'the designated person' and insert 'a police member'.

    No. 124, in clause 41, page 22, line 17, leave out 'The designated person' and insert 'A police member'.

    No. 125, in clause 41, page 22, line 21, leave out 'the designated person' and insert 'a police member'.

    No. 126, in clause 41, page 22, line 23, leave out subsection (8).

    No. 127, in clause 42, page 22, line 29, leave out 'persons designated' and insert 'police members'.

    No. 131, in clause 46, page 24, line 41, leave out 'designated person' and insert 'police member'.

    No. 132, in clause 46, page 25, line 1, leave out 'designated person' and insert 'police member'.
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    No. 133, in clause 46, page 25, line 4, leave out 'designated person' and insert 'police member'.

    No. 109, in clause 46, page 25, line 5, leave out 'designated person' and insert 'police member'.

    No. 110, in clause 46, page 25, line 8, leave out 'designated person' and insert 'police member'.

    No. 111, in clause 46, page 25, line 10, leave out 'designated person' and insert 'police member'.

    No. 112, in clause 46, page 25, line 12, leave out 'designated person' and insert 'police member'.

    No. 113, in clause 46, page 25, line 24, leave out 'designated person' and insert 'police member'.

    No. 114, in clause 46, page 25, line 25, leave out 'virtue of the designation' and insert

      'reason of holding the powers'.

    No. 115, in clause 47, page 25, line 39, leave out 'designated persons' and insert 'police members'.

    No. 116, in clause 47, page 26, line 6, leave out 'designated persons' and insert 'police members'.

    No. 118, in clause 49, page 26, leave out lines 36 and 37.

    No. 119, in clause 49, page 26, line 40, leave out subsection (2).

    New clause 8—Police members of staff of SOCA to have powers of constable, etc.—

      '(1) The police members of staff of SOCA (''the police members'') shall—

      (a) have the powers of a constable,

      (b) have the customs powers of an officer of Revenue and Customs, and

      (c) have the powers of an immigration officer.

      (2) For the purposes of this Part ''police member'' means a person who falls within paragraph 13A of Schedule 1.'.

    Mr. Mitchell: This group forms the crux of the Opposition's case on the constitution of SOCA. I draw the Committee's attention in particular to amendment No. 108 and new clause 8. With the other, consequential, amendments, their purpose is to create a category of officers of SOCA classed as police members. Police members will have the powers presently exercised by police officers, Revenue and Customs officers and immigration officers. The amendments will remove the confusion that will be generated by the mix-and-match designations anticipated from the provisions of part 1, chapter 2.

    To understand the amendments requires an understanding of two issues. The first is the historical significance and importance of the office of constable. The second is the way in which the Bill, as presented, proposes to give what might broadly be described as police powers to SOCA staff.

    First and foremost, I need to provide a little history about the office of constable. It is important, because it is a history that is in danger of being eroded by the Bill, almost by default. Although today's police forces are the creation of statute and the police have numerous statutory powers and duties, in essence a police force is from a legal point of view neither more nor less than a number of individual constables, whose status derives from the common law. I draw the
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    Minister's attention to the fourth edition of ''Halsbury's Laws of England'', volume 36(1), ''Police'', paragraph 201.

    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 within his bailiwick and for the execution of the orders and warrants of justices of the peace. The constable's oath and his close relationship with the justices of the peace then characterised him as ministerial officer of the Crown, like a sheriff or a justice of the peace, rather than as a mere local administrative officer. In short, constables have never been civil servants.

    Various enactments were passed in the 19th and 20th centuries to provide for the establishment of police forces. Powers were not conferred on members of police forces as such, but a member of a police force must on appointment 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, he has neither the authority nor the status of a constable. Once he is attested, he holds that office. The office applies equally to members of police forces, to special constables, and to the director general and police members of the National Criminal 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 category of police member of those organisations. The Bill will abolish NCIS and the NCS and absorb those organisations into SOCA. What then will be the precise status of a police constable? When carrying out his or her duties as a constable, a member of a police force of whatever rank acts as an officer of the Crown and a public servant. Their powers are exercised by virtue of their office, and unless they are acting in execution of a warrant, their powers can be exercised only on their own responsibility.

    A police constable who deliberately fails to carry out his or her duties by wilfully omitting to take steps to preserve the Queen's peace or to protect a person under attack actually 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 of the state.

    Well, one might say that all that is very interesting, but why on earth does it matter to us here today in 2005? The answer is that it has some important consequences for the nature of policing and for the independence of our police force.
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    10.30 am

    A police officer cannot be dismissed on notice. They cannot take industrial action. They have a duty to act and report both on and off duty. They are also politically impartial. Those have been the characteristics of our police for at least the past 175 years, and they derive from the office of constable. As a result, our police are unique. As a result of that, they are uniquely good. I note in passing that there are issues to which sufficient thought has not been given by those responsible for the Bill. We see from new clause 1 that the Government have realised that they have not made proper provision for the liability stemming from the unlawful conduct of SOCA staff.

    The second issue that I have identified is how the Bill proposes to grant police and other powers to SOCA staff. Once one understands the current proposals for equipping SOCA staff with police powers, one sees immediately that the Bill will create a deeply unsatisfactory regime. A radical rethink is required. Clause 38(1) gives the director general power to

      ''designate a member of the staff of SOCA . . . as . . . a person having the powers of a constable''


      ''the customs powers of an officer of Revenue and Customs''


      ''the powers of an immigration officer.''

    Who can be designated as having the powers of a constable, a Revenue or Customs officer, or an immigration officer? A safeguard that the person was already trained and qualified to exercise those powers would provide at least some comfort, but the Bill expressly provides that any member of SOCA's staff can be given any of those powers, or indeed all of them, whether or not he or she is already qualified to exercise them.

    Let us look more closely at the process of designating a member of SOCA with the powers of a constable. In the case of a designated constable, there is no requirement for this second-class constable to take his oath of attestation. He will have the powers of a constable, but not, it seems, the duties. The effect of clause 38(5) is that if an employee of SOCA was a constable before he was designated by the director general, his tenure of the office of constable is suspended. It seems, therefore, that these second-class constables can take industrial action, just as Customs and immigration officers can at present.

    Under clause 41(2), it appears that the designation of constable brings with it all the powers and privileges of that office. In fact, under clause 28(2)(a), the designation made by the director general can be made subject to limitations on the powers that can be exercised, or to limitations on the purposes for which powers are exercised. So there will be second-class constables with second-class powers. The lawyers will have a field day trying to work out whether, in any particular case, the powers exercised by the constable-designate were within his authority, or whether they
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    were exercised for an authorised purpose. That will certainly not help to combat serious or organised crime. Worse still, under clause 38(2)(b), persons can be designated as constables for fixed periods. Under clause 40, designation can always be withdrawn, even if it was given originally without time limit.

    The Police Federation reports that a straw poll 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 in relation to whom the constables-designate seek to exercise their powers? When someone is challenged by a police officer, surely they are entitled to know what the powers of that constable are. Improper exercise of police powers is rare, and the fact that anyone can discover, if they want to, what powers a police officer has by virtue of his office is a useful way of maintaining that state of affairs. But what will the position be if someone is challenged by a constable-designate? How are they to know whether the designation is still in force? More importantly, how are they to know whether the powers that the constable-designate seeks to exercise have in fact been granted to him or her? Are constables-designate to carry around 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, the constable-designate will also need to demonstrate not only that he has the powers, but that he is exercising them for one of the purposes for which he has been authorised.

    What the Bill provides for in relation to constables-designate applies equally to SOCA staff designated to exercise Customs or immigration officer powers. However, those are not three distinct menu options—they are a sort of smorgasbord. The combined effect of clause 38(1) and (2) is that a person who has never exercised any of the powers before can be given a mix-and-match set of powers—part constable, part Customs officer and part immigration officer.

    Imagine a scenario in which established home-grown criminals are believed to be running a large-scale cigarette smuggling operation through Dover docks. After long and careful surveillance, there is to be a raid of a warehouse. The first planned raid had to be postponed because of industrial action by SOCA staff, but it has been rescheduled and the team is ready to go. Arrests need to be made, documents need to be seized and smuggled goods will need to be taken into custody. Along come the group of SOCA staff, who are a mixture of constables-designate, who between them have most, but not all, the powers of policemen, and Customs officers who have Customs powers but no more.

    When the warehouse is raided, there are some surprises, but not only for those already inside. It turns out not only that cigarettes are being smuggled, but that there is evidence of cocaine importation. Many of the people in the warehouse speak poor English, and it
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    soon transpires that there seems to be extensive involvement of an eastern European gang. It emerges that SOCA has turned up without all the powers that it needs. It is not quite clear whether the powers of the constables-designate are extensive enough. The Customs officers-designate need to check whether the purposes for which they are authorised are sufficiently widely drawn to allow them to seize all that they need to in my scenario. The picture is not attractive—it looks more like the Keystone Cops than 21st-century law enforcement.

    A year later the trial collapses. Defence lawyers, having obtained full details of the precise powers of each of the investigators, discover that one of the authorisations had expired altogether and that a key piece of evidence was seized by someone acting in excess of their powers. There must be a better way to equip SOCA staff with the powers that they will need.

    Having explained, by way of background, what it means to be a police constable and the proposals to create pale imitations to deal with serious and organised crime, and having painted a picture of the risks inherent in the mix-and-match scheme anticipated in clause 38(2), I turn briefly to the amendments. Instead of the second-class constables-designate anticipated in the Bill, we propose to create a unified category of police members of SOCA who can exercise the powers of constables, the Customs powers of Revenue and Customs officers, and the powers of immigration officers.

    In essence that aim is achieved by two core amendments. First, amendment No. 108 provides a new definition of police members of SOCA. Staff who satisfy one of three alternative criteria will be police members. The three criteria are simple—the person concerned must be either a constable in a police force, a Revenue or Customs officer, or an immigration officer. That approach will mean that SOCA will draw on staff who already have experience in one of the three core law enforcement activities that SOCA seeks to draw together.

    The second core proposal, in new clause 8, is intended to replace the cumbersome machinery in clauses 38, 29 and 40 for what I described as a smorgasbord of powers and purposes granted to designated persons—in that connection I draw the Committee's attention to amendments Nos. 139, 140 and 141. The proposal is also to provide that all police members may exercise the power of a constable, the Customs powers of a Revenue and Customs officer and the powers of an immigration officer.

    The purpose of SOCA is to strengthen the powers available for

      ''preventing and detecting serious organised crime''.

    That, at any rate, is what clause 2(1)(a) says. At their heart, those functions are policing functions. What is needed is not second-rate policemen, but super policemen. It seems that all the front-line staff of SOCA who exercise powers of investigation and arrest and use warrants and so on, ought not only to have the powers of constables, but to combine those powers with the necessary Customs and immigration powers.
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    Training, of course, will be required. For those who come to be police members from the police force, that training will need to deal with the new customs and immigration powers. For those who come from Customs and the Revenue, the same applies in relation to their new police powers, and we expect that extensive training will be required. The same is so for those who come from the Immigration Service. No doubt regulations will need to be made to deal with the appropriate training of SOCA police members.

    Our proposals are bold but simple. Bold action is needed if SOCA is to have a realistic prospect of achieving its aims. The simplicity of our proposals means that they will bring clarity to the powers of SOCA law enforcement officers. All those officers will have the same powers. Those powers are extensive, but extensive powers are needed. A police member of SOCA will be in no doubt about the powers he or she is to exercise. He will not need to pause to ask himself whether the power he is authorised to exercise is, on any particular occasion, within the limited purposes for which he has been authorised to exercise it. For those who are challenged by SOCA police members in the course of investigations, there will be no doubt as to the powers that can be exercised. When prosecutions are mounted, there will be no field day for defence lawyers, picking over the details of which officer did precisely what, and why, and whether he was authorised to do it.

    Serious and organised crime calls for investigation and prevention by officers with serious and properly organised powers. Our amendments would achieve that, although I am happy to defer to the Minister in respect of the drafting if she feels that they do not fully achieve what they set out to.

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    Prepared 11 January 2005