Session 2010-11
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General Committee Debates
Delegated Legislation Committee Debates

Draft Police and Criminal Evidence Act 1984 (Codes of Practice) (Revision of
Codes A, B and D) Order 2010

The Committee consisted of the following Members:

Chair: Mr Charles Walker 

Campbell, Mr Alan (Tynemouth) (Lab) 

Coaker, Vernon (Gedling) (Lab) 

Crockart, Mike (Edinburgh West) (LD) 

Danczuk, Simon (Rochdale) (Lab) 

Eustice, George (Camborne and Redruth) (Con) 

Fullbrook, Lorraine (South Ribble) (Con) 

Herbert, Nick (Minister for Policing and Criminal Justice)  

Huppert, Dr Julian (Cambridge) (LD) 

James, Mrs Siân C. (Swansea East) (Lab) 

Lammy, Mr David (Tottenham) (Lab) 

Llwyd, Mr Elfyn (Dwyfor Meirionnydd) (PC) 

Macleod, Mary (Brentford and Isleworth) (Con) 

Meacher, Mr Michael (Oldham West and Royton) (Lab) 

Nuttall, Mr David (Bury North) (Con) 

Skidmore, Chris (Kingswood) (Con) 

Stevenson, John (Carlisle) (Con) 

Vaz, Valerie (Walsall South) (Lab) 

Wright, Jeremy (Lord Commissioner of Her Majesty's Treasury)  

Alison Groves, Committee Clerk

† attended the Committee

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First Delegated Legislation Committee 

Wednesday 2 February 2011  

[Mr Charles Walker in the Chair] 

Draft Police and Criminal Evidence Act 1984 (Codes of Practice) (Revision of Codes A, B and D) Order 2010 

2.30 pm 

The Minister for Policing and Criminal Justice (Nick Herbert):  I beg to move, 

That the Committee has considered the Draft Police and Criminal Evidence Act 1984 (Codes of Practice) (Revision of Codes A, B and D) Order 2010. 

It is a pleasure to serve under your chairmanship, Mr Walker. I am afraid that I shall detain the Committee for a few minutes while I explain the rationale behind the changes, because the subject is important and there has been significant interest in the changes outside this place. I want to set out for the record what the Government hope to achieve, and to give reassurances about the effect of the changes. 

I am grateful to the Joint Committee on Statutory Instruments and to the Merits of Statutory Instruments Committee for their careful consideration of the order and the accompanying Codes of Practice. Although the Joint Committee did not draw the House’s attention to anything in respect of the order, the Merits Committee drew the House’s attention to two particular areas, which I shall deal with in my remarks. 

The Codes of Practice issued under the Police and Criminal Evidence Act 1984, known as the PACE codes, are the key pieces of guidance to police officers, members of the legal profession and those members of the public who come into contact with the police. The order will bring into effect revised Codes of Practice A, B and D to take account of the commencement of legislation and some judgments made in recent months in the higher courts, along with a number of measures intended to reduce police bureaucracy. The codes were prepared and published in draft format on 20 September for statutory consultation, in line with section 67 of PACE. That consultation process was the first topic commented on by the Merits Committee, and it may assist this Committee if I outline the consultation process that took place. 

The consultation ran for four weeks, and representations were received from independent organisations such as Liberty and StopWatch, as well as from professional bodies such as the Bar Council, the Law Society, the Association of Chief Police Officers and the Police Federation. Concerns were raised with the Merits Committee about the length of the consultation. I should say that PACE does not stipulate how long such a consultation should last, and that many changes arose from the commencement of legislation that had been consulted on previously. In addition, the process in fact extended beyond four weeks, with individual discussions being held with concerned parties following their responses.

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However, we appreciate that that still may be seen as insufficient, particularly in an area where there is as much sensitivity as there is around stop-and-search, and we will learn the lesson for the future. 

I come now to the codes themselves. It may assist the Committee if I highlight some of the main changes, along with the reasoning behind them. 

Mr David Lammy (Tottenham) (Lab):  The right hon. Gentleman and, I hope, his officials are aware that numerous inquiries have touched on stop-and-search; one can go back to the Gifford inquiry following the riots on the Broadwater Farm estate in my constituency. Therefore, there is understanding in his Department that this is a very serious issue. His consultation did not reach into the black, Asian and Muslim communities in the way that one would expect. Does he recognise the deep concern about the fact that four weeks were taken, given the social unrest that we have seen following stop-and-search? 

Nick Herbert:  I have already recognised the concern about the length of the consultation process; that is why I said that we need to learn the lessons for the future. I emphasised that we had had meetings with the key groups. I think that form of engagement is important. I recently spoke to the all-party group on race and community on the issue; the right hon. Gentleman is a member of that group and chaired the meeting. Yesterday, I facilitated a meeting of hon. Members from both sides of the House with the police, so that they could discuss concerns with senior police officers, including the ACPO representative on the issue. I have endeavoured to engage as fully as possible, but I accept what the right hon. Gentleman says about the sensitivity of the issue, the importance of careful handling and the nature of consultation. We will learn the lessons from that, so I do not seek to dismiss what he says at all. 

The most substantial changes affect code of practice A, which governs stop-and-search and stop-and-account procedures. As we have noted, there has been considerable interest in this area, not least in the House. My hon. Friend the Member for Bedford (Richard Fuller) initiated a very useful debate on the issue in Westminster Hall on 1 December. As I said in response to that debate, the changes to code A are aimed at ensuring that the police strike the right balance between the necessary paperwork that allows appropriate public accountability, and irrelevant bureaucracy, which can waste so much police time. Bureaucracy also impacts unduly on citizens going about their business by requiring the police to ask unnecessary questions just so that they can fill in the form—an important point that is sometimes not made enough. 

It may be useful to the Committee if I explain the terms “stop and account” and “stop and search”. Stop-and-account is where individuals are merely asked to account for their presence, actions and so on. It is not a statutory power. It is one step on from the general conversations that officers have with members of the public every day. It can therefore be difficult to separate as a task in itself and its recording can make it seem a more formal process than it is intended to be. Stop-and-search clearly goes further than this. For example, the person stopped is obliged to remain while the procedure is carried out. It is therefore cause for more debate, especially among black and minority ethnic communities. 

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As in many areas of police work, procedures such as stop-and-account and stop-and-search are most effective when local communities understand them and support their use. The Codes of Practice go some way to provide background information to aid that understanding. I am sure that we would all want officers on the street to record only that information which is of value, and to do so only once, in the most efficient way possible. Information that it will be vital to record in an urban force area will not be required in many rural areas, and vice versa. The new Codes of Practice aim to ensure that the most important information is always recorded, but anything else is down to a force’s own requirements, taking account of its local community’s concerns. 

On stop-and-account, draft code A removes completely the national requirement to complete a form recording each encounter. This will potentially free up several hundred thousand hours of police time, both on the street and in the back office, allowing officers to increase the quality and shorten the duration of these brief encounters, and allowing forces to be more responsive to the communities that they serve. I am aware that bodies such as StopWatch have challenged our figures on the number of hours saved. I met with StopWatch in the all-party group meeting that I mentioned earlier, and my officials have also met StopWatch to discuss the issues. 

The approach taken historically by different forces means that some forces will see more benefit than others. Many forces record only the ethnicity of the person stopped, as the 2009 version of code A enables them to do, so any benefit to them would be relatively small, assuming that they do actually stop recording such encounters. In contrast, officers in other forces still fill out the long, much-derided paper form, as their forces took the decision not to change the process twice but to wait for the deployment of mobile technology. It is in those forces where the maximum benefit will flow, both to front-line officers and to support staff inputting form data into force systems. 

It is two years since the reduction in the recording requirement for stop-and-account, and we felt that the only way to move the change along was the radical option of abolishing the national recording requirement altogether. We have said that the recording changes together would represent a saving of up to 800,000 hours of police time. That represents the total saving available to forces in moving from long paper forms for all stop encounters to short electronic records of stop-and-search and no record at all of stop-and-account. That is up to 450,000 hours saved for stop-and-account, and up to 300,000 hours saved for stop-and-search. Some forces are already a good way along this road, while others may wish to travel more slowly for reasons of community engagement. That is their choice. The potential saving in officer time is significant. The key point is that the Government are not demanding that huge amounts of data be recorded unnecessarily, and the discretion will be local. 

The national recording requirement has been in place only since 2005. It arose from the findings of the Stephen Lawrence inquiry report of 1999, which raised awareness of the impact that the police have on the people whom they encounter, particularly those from black and minority ethnic communities. However, since the introduction of the national recording requirement,

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we have seen little evidence of widespread disproportionate use of stop-and-account in relation to BME communities. Indeed, many forces, when examined on a local level, show little evidence of any form of disproportionality in their use of the tactic. Some forces such as Cumbria, Humberside and Durham show the opposite; in those areas, white people are more likely to be stopped than black people. 

The figures have shown significant disproportionality in only a few areas, but there has been a vast increase in police bureaucracy across the whole of England and Wales. That is why we propose removing the national requirement for recording stop-and-account, leaving the decision on whether to continue to record the ethnicity of the person stopped to be made locally, according to local need. The Flanagan report of 2008 recommended that recording remain in all forces, but the Government believe that the world of neighbourhood policing has moved on in the last couple of years; individual police forces, with their community representatives, are best placed to analyse their local practices and understand the impact on ethnic minority groups locally. 

Valerie Vaz (Walsall South) (Lab):  Does the Minister have any record of stop-and-account in places like Southall or Birmingham? 

Nick Herbert:  The national figures have been collated. I am not sure what the hon. Lady means; we are talking about scrapping the national requirement to record stop-and-account. 

Valerie Vaz:  The Minister said that he had the figures for Cumbria, which does not have a very large ethnic minority population. The stop-and-search figures were always greater for the ethnic minority population than for the white community. He mentioned particular areas; my point is that the majority of the ethnic minority population do not live in those areas. I wondered whether he had done any research on, say, my constituency, where there is a very large Muslim population, or the west midlands, Birmingham or Southall. 

Nick Herbert:  Yes, of course, but I ask the hon. Lady not to miss my point. I was talking about stop-and-account, not stop-and-search. I am making the point that overall, disproportionality is not the concern in relation to stop-and-account. Of course the situation is different in some urban areas where there may be a significant BME community; that is exactly the point I was making. The problem is that we had a national requirement for recording stop-and-account—merely being stopped by the police—which applied to all police force areas, including a large number where those concerns did not exist. It imposed a bureaucratic requirement for no gain. That is what the Government seek to address by changing the national requirement and enabling a reduction in bureaucracy. However, where forces feel that there is a benefit to them because of the importance of community cohesion and so on, they will have that discretion. I think that will achieve the right balance. 

Mr Lammy:  Does the right hon. Gentleman accept that the standard one uses to judge a civilised society is how we treat minorities? Does he recognise that handing

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the power solely to the police forces is probably not sufficient? Ethnic minorities need to believe that if they happen to travel to Northumbria or Cumbria, they will not be stopped disproportionately or discriminated against. Does he recognise also that the question goes back to the ability of the police successfully to recruit ethnic minorities and see them move up the ranks? There is still a job to do. 

Nick Herbert  rose—  

The Chair:  Order. May I just interrupt, Minister? We do not want to get into police recruitment in this debate. 

Nick Herbert:  Thank you, Mr Walker. First, I agree with the right hon. Member for Tottenham about the test of a civilised society being the way it treats minority groups. Secondly, this is not just a matter for the police to determine; the whole force of my argument is about the importance of local democratic accountability. The police can and must be held to account by the local people through their elected representatives. The community engagement that forces are now undertaking is of a different order from what it was just a few years ago. We heard a lot about that from the representatives of the Metropolitan police and ACPO yesterday, and it considerably reassured the hon. Members who were there. I have been reassured when I have met borough commanders in London, for instance. We are in a different world, and I believe that there is a police understanding of that. We must not let up on the issue, but I do not believe that we are in the same world as we were when the measures were first introduced. The importance of the issue has not diminished; I accept that. 

Dr Julian Huppert (Cambridge) (LD):  I am trying to understand how a force that is not collecting the data would know if it had a problem to investigate. Is the Minister suggesting that if representatives start raising issues with a force on this point, he would expect it to start collecting data? How would it know when it needed to do that? 

Nick Herbert:  The point that I am making is that I do not think that the data on stop-and-account have revealed anything that can inform a change of practice or is helpful to us. That was the point made by the ACPO representative yesterday. I do not accept my hon. Friend’s hypothetical here. Of course, police forces must be responsive to local communities and to their concerns. Many forces around the country, however, have judged that collecting these data is of little or no use to them and that doing so imposes a significant administrative burden. It also changes the nature of a police officer’s encounter with an individual, as I have said. That is important, because what can start off as a mere conversation can lead to something more formal, which can be damaging to the relationship between the police and the public. 

Mr Lammy:  I am surprised that the Minister relies so heavily on the nature of the data. Does he not recognise that the address and description of a person, and the outcome of the stop, is relevant information? The first

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pertains to profiling and a pattern of behaviour by a particular officer, and the second pertains to the outcome. I know that the Government place a lot of stress on outcomes, rather than on inputs. 

Nick Herbert:  Again, this relates to the difference between stop-and-search and stop-and-account; we have been trying to draw the distinction between the two. I have already said that because stop-and-search is a more intrusive procedure, we need to keep a significant element of the recording requirement. I do not accept that that national requirement is necessary in relation to stop-and-account, but it may be judged locally to be necessary by the force—which will be sensitive to the issues of BME community confidence in policing—and by those who hold the force to account. We want to exchange a costly form of bureaucratic accountability, which can be disproportionate in what it seeks to achieve relative to the burden that it imposes, for a stronger democratic form of accountability where the forces are accountable to elected individuals who have to answer for their performance and the way in which they conduct their policing. I want to emphasise that it is important for police forces to be held to account for the manner in which they police. 

Valerie Vaz  rose—  

Nick Herbert:  I will give way one more time. 

Valerie Vaz:  Just for clarification, does the police officer specify that the encounter is a stop-and-account, not a stop-and-search? How does the member of the public know the difference? 

Nick Herbert:  Well, the difference is in whether the individual is searched or not. 

Some concerns have been raised about the decision-making process being followed in individual forces. It is inappropriate to enforce a standard bureaucratic process on all forces when there are different levels of engagement and understanding. We have, therefore, left that for forces to consider independently. It will be for them to justify their decision locally, and they will be held accountable for the impact. 

I am pleased to inform the Committee that many forces have been proactive on this, and they are holding full consultations with their communities on the continued recording of stop-and-account. The Metropolitan Police Service is about to embark on an engagement programme that is specifically aimed at 16 to 25-year-old men from BME groups. Greater Manchester police authority will also conduct a similar process over the next few months. At the other end of the scale, some forces have tried to consult local community groups but have elicited little response, which reflects the lack of concern in some force areas about stop-and-account. That highlights how important it is for forces to be clearly, openly and transparently held accountable to their communities, which is why we are strengthening accountability with directly elected police and crime commissioners. 

Given the intrusive nature of stop-and-search, the Government consider that a national minimum requirement to record stop-and-search encounters should continue to exist. The proposed changes to code A reduce that

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minimum level, but they do not diminish the importance of the records or the part that they play in allowing us to monitor the use of those powers. We are, therefore, reducing the number of pieces of data that must be completed on a stop-and-search record from 12 to seven in accordance with section 1 of the Crime and Security Act 2010, which received Royal Assent near the end of the previous Government’s term in office. We estimate that that change will also save several hundred thousand hours of police time each year, particularly when a number of the fields can be completed automatically using BlackBerrys and similar devices, which we encourage. I emphasise that key information about each of those encounters, including a self-defined ethnicity of the person who is stopped, will continue to be recorded. 

I am aware of particular concerns about the removal of certain information from the national requirement, and that failure to record, for example, name and address and the outcome of a search will reduce the usefulness of future records. We considered such matters carefully before making those changes. 

As I have noted, changes to PACE itself were made under the 2010 Act, which was introduced by the previous Government. For example, members of the National Policing Improvement Agency’s stop and search community panel made it clear to my officials, in September 2009, that taking down an individual’s name and address was one of the things that were most resented within the black and minority ethnic community. Removing any requirement to ask for a name, which the individual is under no obligation to give, was regarded by community members of the panel as having the potential to reduce the temperature of the encounter significantly. 

On positive outcomes of searches, we want to make a further efficiency saving by recording a stop and search that results in arrest and detention as part of the custody record. Such a measure will remove unnecessary duplication of information in a variety of police forms, while ensuring that it can still be readily accessed and analysed. 

Mr Lammy:  I have been stopped and searched—in fact that happened as recently as May 2010, during the general election campaign. The Minister will know that there is particular concern about the mobile vans—not stationary police forces—that move into areas to deal with strategic problems as they arise. Does he understand, therefore, the great concern about removing the record of whether injury or damage was caused as a result of stop-and-search? Surely it is not too much to ask an officer to note such information. 

Nick Herbert:  In each of the lines, we have consulted about the particular fields that we seek to remove. We have sought to achieve a balance between recording essential information and reducing the bureaucratic burden. It will be up to forces to decide what they will continue to record during stop-and-search. Again, such matters will be for local judgment. 

I encourage the hon. Gentleman to talk to the senior leadership of the Metropolitan police, as I have sought to do. He should ask them why they think that some information is essential and some is not. As I have said, in our whole approach to the measure we have been at pains to consult the relevant interest groups about what they judge to be necessary and unnecessary information. 

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Mr Lammy:  Just for clarity, can the Minister tell me what will be the requirements on police forces in particular parts of the country in six months’ or a year’s time? It would be helpful for different members of the BME community to have such information. 

Nick Herbert:  I believe in giving local forces the discretion to decide how they wish to police according to the needs of their local communities, subject to certain requirements that we regard as the absolute necessary minimum, as in the provisions. Different parts of the country have substantial differences in where there are BME communities. 

We are setting a minimum recording requirement for stop-and-search. All we are doing is reducing the number of inessential requirements and the burden. Indeed, we are reducing ones that we were advised were contributing to community tension, such as the requirement to give a name, and so on. 

We have attempted to introduce the provision in a measured and proportionate manner. I do not believe that a national requirement for all those pieces of data is still appropriate, but a national requirement for key pieces of data is. We are arguing about whether the balance has been struck in the right place. 

Code A also details the interim changes to the use of section 44 of the Terrorism Act 2000, which my right hon. Friend the Home Secretary set out in her statement to the House on 8 July. The inappropriate use of that power has ceased in light of the judgment of the European Court of Human Rights in the case of Gillan and Quinton. The Committee will be aware from my right hon. Friend’s statement last Wednesday on the outcome of the counter-terrorism review that changes will be made to the power in legislation in due course, which I am sure will be discussed fully when the Bill on the protection of freedoms is laid before Parliament shortly. The change to code A merely enforces the interim guidance before those substantive changes can be made. 

During the consultation process, concerns were raised with the draft guidance that we proposed in September with respect to the powers available to the police under section 60 of the Criminal Justice and Public Order Act 1994, on whether we have gone far enough in light of the Gillan and Quinton judgment about section 44 of the 2000 Act. The September draft of code A was misinterpreted by some parties, who suggested that it would allow racial profiling in the use of section 60 of the 1994 Act. I want to emphasise to the Committee that that was never the intention. Indeed, the wording was already in code A in respect of section 44 of the 2000 Act, but it has shown us how the wording of the code needs to be considered extremely carefully. 

As a result, we amended the September draft of code A to make it clear that there must be no ethnic profiling or unlawful discrimination in the use of section 60 of the 1994 Act. All authorisations under that power must be supported by clear intelligence but, on occasions, that intelligence could suggest a possible description of a suspect that may include characteristics such as race, age and sex. The draft code before the Committee today specifically states that in making a decision to stop a particular individual, 

“officers must take care not to discriminate unlawfully against anyone on the grounds of any of the protected characteristics set out in the Equality Act 2010”, 

which include race. 

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Others have suggested that section 60 of the 1994 Act should be amended in line with the proposed changes to section 44 of the 2000 Act. We have not done so as we consider that section 60 can be distinguished from section 44, the power which the European Court of Human Rights declared to be incompatible with article 8 of the European Convention on Human Rights. Our position was upheld last week in an application for judicial review of a section 60 stop and search, where the High Court refused an application on the papers, ruling that there was no good argument that the search was unlawful and that the decision in Gillan was distinguishable. 

Section 60 of the 1994 Act is used in different ways across England and Wales, so a national management process would be inappropriate. Many police forces authorise the powers for use on only one or two occasions during a year, while others never use it. Therefore, while a complex process might be appropriate in London, where it is particularly and mainly used, it would be unnecessary in Devon and Cornwall or Staffordshire, where there were no section 60 stops at all in 2008-09. 

As our proposals to introduce police and crime commissioners have shown, we consider that policing works best when it is properly managed and accountable at a local level. Therefore, for example, I would commend to the Committee the approach of the primary user of section 60, the Met. It is conducting a review of its processes governing the use of the power and the guidance adhered to internally, and we fully support those steps. That will include more central oversight within the force to ensure that the power is used consistently and effectively across London. That is work above and beyond the Codes of Practice, and we need to draw the distinction between what the codes are capable of covering as a statutory, national document, and when local policies and practices are more effective. 

Mr Lammy:  I am grateful to the right hon. Gentleman for giving way. Given that he said that there were no section 60 stops at all in Devon or Cornwall—I think that that is what I heard—why is there a need to amend the legislation? 

Nick Herbert:  As I explained, we are amending the legislation in light of the judgment in Gillan. The purpose of the legislation is to ensure that it is compliant with that judgment and that it is used properly. We are amending section 44, not section 60. I was talking initially about section 44, but now I am talking about section 60, and I think the right hon. Gentleman thought I was talking about section 44. 

The section 60 power is used predominantly by the Met, and was used by it in its action dealing with knife crime with Operation Blunt 2. Representatives from the Met explained to hon. Members yesterday the importance of the power to them, how it is used and how the Met tries to reassure communities about its use. They also explained that the Met believes that the power is of particular benefit to such communities, which are the victims of knife crime. 

To put this into perspective I shall give an example of the use of section 60. The Met rightly received a great deal of praise for its handling of the 2010 Notting Hill

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carnival, which saw a decrease in violent crime and a positive detection rate of 53.5% for all crimes reported, which was well above the target of 30%. Of the stop-and-searches conducted as part of the operation around the carnival, 75% were under section 60. The success of the operation was based on accurate intelligence, informative briefing and officers being confident in their use of the power, which code A can only go so far in covering. Furthermore, the ethnic breakdown of those stopped and searched would clearly be very different when compared with the ethnic breakdown of Notting Hill residents. However, the use of the power in that situation was clearly justified, which the bare statistics could never tell us. 

I am drawing towards the end of my remarks, and I hope hon. Members will bear with me because these are important issues. Turning to the other codes, code B governs the searching of premises and the seizure of property. The changes bring the code up to date with amended legislation and judgments of the higher courts. They provide guidance on the powers to search the premises of individuals subject to the current system of control orders, as well as the police’s power under section 18 of PACE to enter and search premises occupied or controlled by a person under arrest for an indictable offence. 

The majority of the changes to code D, on identification issues, reflect the amendments to the police’s powers to take DNA and fingerprints for recordable offences made by sections 2 to 7 of the Crime and Security Act 2010. The changes fill existing gaps in the police’s ability to take biometric material in connection with criminal investigations, and they ensure that the national DNA and fingerprint databases are primarily populated with the profiles of those who have been convicted of offences by the courts, rather than filling them with unconvicted people, as the previous Government did. The protection of freedoms Bill, which will be introduced shortly, will outline details of how the Government will meet our commitment to adopt the protections of the Scottish model for DNA retention. I am sure, Mr Walker, that you would not want me to be drawn into a discussion about that. 

Code D also provides the police with necessary guidance on the use of mobile fingerprinting equipment. That recent advance is not intended to be used routinely; the police must already suspect a person of committing a crime before using the equipment, and then only when an officer is unable to confirm a person’s name or has reasonable grounds for doubting the name given. Where the devices are available, they will take an image of one or two fingerprints and check them against existing fingerprint databases. That will reduce the need for arrest to confirm identity, which can take up to four hours at a time. That is clearly beneficial to the police and those whose identity is in doubt. I should also emphasise that fingerprints taken in these circumstances are automatically deleted by the devices as soon as the search is concluded, and are explicitly excluded from the police's wider powers to retain fingerprints taken on arrest. 

At the beginning of my remarks, I referred to the Merits of Statutory Instruments Committee drawing two concerns to the attention of the Committee. Its second concern was about how we will assure the consistent interpretation and application of the codes across all

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forces in England and Wales. As I said, we feel that the codes must balance the requirement for central guidance with the freedom for forces to operate specific processes and procedures in a way that also meets their local needs. Although all police forces work to a common aim to prevent and detect crime, they will not do so in exactly the same manner as a neighbouring force or one at the other end of the country. Differences have to occur for forces to provide the service that their local communities require, as their priorities and concerns will be different. 

The revised Codes of Practice all follow important principles, such as reducing bureaucracy, increasing efficiency for the police and protecting the civil liberties of our population at large. They are part of a pattern of exchanging bureaucratic accountability for modern democratic accountability, ensuring that the police are held to account and there is full transparency. The changes are fully supported by the police and will make a real impact on day-to-day policing. I commend the draft order and the attendant codes to the Committee. I apologise for the length of my remarks, but I hope the Committee understand why I felt it necessary to speak for so long. 

Several hon. Members  rose  

The Chair:  Order. A number of Members wish to speak, and I remind the Committee that we have 56 minutes. 

3.5 pm 

Vernon Coaker (Gedling) (Lab):  Good afternoon to you, Mr Walker, and to the Committee. I thank the Minister for his explanation of the order, which brings into force changes to the Codes of Practice under the Police and Criminal Evidence Act 1984. The codes reflect changes in legislation and policy, including in the light of court judgments. As the Minister has said, the changes relate to stop-and-search, entering and searching premises and seizing property and identification. The changes under stop-and-search remove the national requirements to record stop-and-account and leave it to the local police force, following consultation, to decide whether to continue monitoring such encounters. 

The changes also require a lower level of information to be recorded for stop-and-search incidents. They also make changes in the use of stop-and-search powers under the Terrorism Act 2000 following the European Court judgment to require a greater degree of suspicion of the person being stopped. They give further guidance on the use of stop-and-search powers of persons and vehicles under section 60 of the Criminal Justice and Public Order Act 1994. There are also changes, as the Minister said, to the codes in respect of taking fingerprints and samples. 

I have a number of questions that I want to ask the Minister. The changes, particularly in respect of stop-and-account and stop-and-search, are controversial to say the least. As my right hon. Friend the Member for Tottenham has indicated, they raise huge issues of disproportionality. An Afro-Caribbean person is six times more likely to be stopped than a white person when an officer has reasonable suspicion to carry out a search, according to the Equality and Human Rights Commission. Given that there were approximately 2 million

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instances of stop-and-account and approximately 1 million stop-and-searches in 2009, can the Minister reassure the Committee that the changes will not make matters worse? 

Under section 60 of the Criminal Justice and Public Order Act 1994, officers do not require suspicion to stop someone in a designated area for a limited period. Under those powers, in 2008-09 there were 150,000 incidences of stop-and-search, with black people 26 times more likely to be stopped. Notwithstanding the point that Ministers often make—that three quarters of the stops were in London—there will be huge disproportionality and that is clearly a worry. Again, the Committee is looking for reassurance from the Minister about that. 

It is worth reading some of what the Merits of Statutory Instruments Committee said, because the way in which the matter has been handled has made it considerably worse. The changes have some merit, but the Committee’s report, published on 9 December, is worth quoting at some length: 

“Those amendments being made in response to judgements appeared accepted as a step in the right direction. However the organisations all expressed continuing concern, not so much with the legislation itself, as the variability in the ways it is interpreted by police forces across the country…Members may wish to press the Home Office for more specific detail on how these changes will be applied in practice and their efficacy and consistency monitored.” 

Given that the changes mean there will not be a national requirement to record stop-and-accounts, it will be a local decision. The Minister needs to understand that more is needed from him about how this will be monitored—if at all. Who will make the decision and what will be the rank of the officer, if it is a police officer? If it is one of the newly elected police and crime commissioners, what size of area would the decision apply to? Would it be a whole police force area or a small area within the force area? Such details are not available to communities to reassure them about what is happening. 

As the Minister knows, Liberty, Justice, Ronnie Flanagan, who was the previous inspector of Her Majesty’s inspectorate of constabulary, and, many years ago, the Stephen Lawrence inquiry and others have all warned that the absence of national recording requirements can lead to disproportionality—hence the importance that each member of the Committee will attach to it. If some local police and crime commissioners are more zealous than others, or if there is overuse in some forces, how will the Minister know and what will he be able to do about it? 

In attempting to reduce bureaucracy, which we all want, the Government are also reducing the amount of information to be recorded on stop-and-search forms. Considerable concern has been expressed about this and the extent to which the proposed changes to section 60 of the Criminal Justice and Public Order Act 1994 would allow officers to take into consideration a person’s ethnicity when stopping and searching under that power. The Government have amended the code, as stated in the explanatory memorandum. Could the Minister explain how he intends to ensure that that part of the code is fit for purpose and helps to deal with the concerns raised? Will he continue to review the consistency of application between and within forces across the country under the provision, too? 

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The Home Office Minister Baroness Neville-Jones made an important statement in the other place: 

“However, let me say straightaway that, if it is demonstrated that the changes are not helpful, it will be right and proper to think again, and consultation is still going on.”—[Official Report, House of Lords, 25 January 2011; Vol. 724, c. GC182.] 

Could the Minister confirm that that is the Government’s position? My right hon. Friend the Member for Tottenham has said that there is considerable anxiety, if not anger, about some of the information that is being excluded from the information that is to be required to be recorded, including, as in my right hon. Friend’s example, where injury occurs as a result of a stop and search. The baroness says that it is still under consideration and that consultation is still going on. If that is the case, was she wrong? Could the Minister further reflect on some of the other points that have been raised in this Committee? 

Given the need for consultation, could the Minister tell us what is actually happening? The NPIA-run stop-and-search panel has been abolished, so what is taking its place? If community engagement is key, as my right hon. Friend has said, surely something needs to be in its place now. If it is not, it needs to be done quickly. Could the Minister update us on what is happening on any replacement and the time scale for it? 

I heard what the Minister said about the Merits of Statutory Instruments Committee’s criticism of the Home Office and its handling of things. I will read from the Committee’s report, because it goes to the heart of the problem that communities have with this order: 

“It should be noted that the only mention of the revised PACE Codes on the Home Office site was in a brief news item on 17 November when the instrument was laid before the House and there is currently”— 

obviously, this is at the time the report was published at the beginning of December— 

“no linkage to the text of the proposed revised Codes there or anywhere else on the Home Office site. The instrument is on the OPSI website and the draft PACE Codes deposited with it can be found on the TSO official documents site but this is not an obvious place for external groups to look. The Home Office Explanatory Memorandum says that the revisions will be on the PACE page of their website from the commencement date i.e. after the Order has been made. This is not helpful to those who may wish to comment to Parliamentarians before the debate happens. It is also notable that comment in the press still largely related to the proposals put forward in July, key interest groups did not appear to be aware that the initial proposals had changed. On such a sensitive issue the Home Office could have made more effort to make clear to the public exactly what changes are being proposed and how they will check that they are having the intended effect.” 

Given that that was a few weeks ago, what has the Minister to say about how that action happened on something as controversial and as sensitive as this? Have all the concerns raised in that report been addressed? Have all the criticisms of the process, let alone the policy, been resolved? 

Other revisions to code A amend the use of stop and search under the Terrorism Act 2000 and are to be welcomed following the ECHR judgment. The fact that only 0.5% of section 44 stop and searches resulted in an arrest, none of which related to terrorism, seems to demonstrate that the powers were used too widely. Efficiencies can be made and a more appropriate balance

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can be found between law enforcement and civil liberty. Will the Minister monitor the new threshold on section 44 and keep us up to date? 

As for code D on the taking of fingerprints and the use of mobile equipment for the purposes of identification, will the Minister confirm that any fingerprints taken in that way will be destroyed, not retained? Will he also confirm that all fingerprints taken by mobile devices will be destroyed by the devices themselves? Could he explain what is meant by “samples” and how the changes to the code affect samples? What safeguards are there? Could he lay out the difference—I know he already has, but I want some further clarification—between the section 44 power of the Terrorism Act 2000, which is amended by this order, and the section 60 power of the Criminal Justice and Public Order Act 1994, as amended by this order, so that those outside may understand more clearly why both are still necessary and justifiable? Will the Minister confirm that the changes to code B on the searching of premises and seizing of property are necessary in light of recent court judgments? 

Changes that affect processes and procedures relating to stop-and-account and stop-and-search are very sensitive indeed for correct and proper reasons, and they are controversial. The ECHR and others, such as community groups, particularly in the black community, consistently raise the issue of disproportionality. The right of citizens to go about their business is a fundamental right. Of course, the police need the right tools to help them prevent and detect crime, but a proper balance is crucial if public confidence is to be maintained. Some communities experience levels of stop-and-search and stop-and-account at far higher levels than others and they need to know that the Government are not only aware of that, but are monitoring it closely. 

Cutting bureaucracy is one thing, and something that we all support, but information and proper recording are also needed. At the very least, the Minister must ensure that we keep this under review, continue to listen to the concerns of the House and to communities, and change the codes again if necessary. I do not think any of us would expect any less from the Government or, indeed, from the Minister. 

Several hon. Members  rose—  

The Chair:  We have 45 minutes, so if Back Benchers who wish to speak could limit their speeches to about 10 minutes, everybody will be able to speak and the Minister will have a chance to respond. 

3.16 pm 

Dr Huppert:  Thank you, Mr Walker. It is a pleasure to serve under your chairmanship. I intended to begin by talking about the consultation, which was somewhat thinner than we would have liked, and I was glad to hear the Minister acknowledge that. The hon. Member for Gedling made a serious point about access to papers; at the weekend, I tried to find a soft copy of the papers. It was only the Merits Committee report that enabled me to find a link to a soft copy. If somebody who hopefully has a bit of an idea where some of these things are struggles that badly, so too would some of the people who might have wanted to look at the papers but who did not have the benefit of knowing exactly

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what to search for. I will admit that the papers were not quite in the locked filing cabinet, and there was no sign on the door saying, “Beware of the leopard”, but it was tending in that direction. 

As we have discussed, the changes to code A deal with not recording stop-and-account—or stop-and-not-search, which are clearly very similar aspects. Recording stop-and-account was recommended, as has been said, by the Macpherson report after the Stephen Lawrence case. The Flanagan report also confirmed that that was important, and that the figures ought to be given the attention that they deserve at force level. The first question is: is there actually a problem? The figures show that there is, very clearly. If we look at the difference between the use of any of the powers on black people, versus their use on white people, to take fairly crude categories, black people are two and a half times more likely to be stopped under stop-and-account; eight times more likely to be stopped under stop-and-search section 1 powers; and 26 times more likely to be stopped under section 60. The issue is not just the raw figures, however; it is also about perception. It is both an actual problem and a perceived problem in communities. Even if there was not an actual problem, the perception of a serious problem could cause harm in itself. 

What is the driver for that? I was struck by the fact—perhaps the Minister can explain this to me—that in the explanatory notes, paragraph 7.2 states that the changes are needed because of section 1 of the Crime and Security Act 2010. I read the explanatory notes, and I could not find anything that meant that those changes had to be made. I am sure that the Minister will be able to explain exactly what I have missed that says that the changes are absolutely necessary. 

I am, therefore, very concerned about the proposals. I understand the drive for a simpler form. I understand the drive to reduce bureaucracy. I understand, and indeed have argued for, the need for police to spend more of their time doing useful things and less time filling in paperwork. There is an issue about whether a name needs to be provided. There are other ways round that—a receipt would be a good way. Indeed, the Flanagan report makes some detailed recommendations about an alternative process. Recommendation 24(a) states: 

“Any officer who asks an individual to account for themselves should provide that individual with a ‘receipt’ of the encounter in the form of a business card or similar, and use Airwave to record the encounter, including the ethnicity of the person subject to the encounter to enable disproportionality monitoring”. 

That should take a lot less than the four minutes that has been described. While I take the Minister’s point that asking for information can make an encounter more formal, giving somebody a business card could actually be a useful thing. It could provide contact details for community policing, and I think it is a less hostile act. That process would be better. It should be possible to use electronic tools much more. Any number of restaurants successfully and quickly take orders electronically, and I am sure that they would be happy to provide advice to the police. 

One concern that I tried to pick up on earlier is that the change means that there is no way of finding out if there is disproportionate use of stop-and-account. What do we do when there are claims of disproportionality in a force that is not monitoring its use? There is no clear way to work out whether there is a serious problem.

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Note 22A of code A allows local forces to continue to monitor it—I believe that the Metropolitan police will continue to monitor their use of stop-and-account. There is the question, however, of whether the forces that have the largest problems will be the ones that choose to monitor whether they have a problem. It is not obvious that they will always be as able to do so, or to respond to what may, almost by definition, be fairly minority aspects of their community. It is very clear in the Macpherson report, for example, that the number of stops is, in itself, damaging to community relations. 

I have concerns about the use of section 60—stop-and-search without suspicion—but in the interests of time, I will trim my comments slightly. I heard what the Minister said about the suggestion in the previous version that there may be stops based on physical factors such as ethnicity. There is still the phrase, 

“thought likely to be associated”. 

I am sure that he will want to make it clear to any constable that that is not intended to give permission for any stops to be made based simply on ethnicity. I urge him to remember that there is a 26:1 ratio when it comes to stops under that power. 

If there is intelligence, I would have thought that the powers in section 1 of PACE would be more appropriate. If, exceptionally, those cannot be used, I hope that, rather than section 60 being used in a disproportionate way, the power could be either random or blanket. I heard what the Minister said about the ruling by the European Court of Human Rights on section 44, but I am not sure that I agree with him about section 60 being entirely different. I suspect that that will be decided by the courts later. 

I would now like to move on to a section that has not been mentioned at all. It is of great interest, however, to a small minority of people who are arguably among the most persecuted in the country. I refer to the section in annex F of code A that deals with establishing gender. People who are transgender often face a huge amount of persecution, and they do not have lobby groups that are particularly strong and active in supporting them. I am very fortunate in Cambridge, in that there are a collection of groups there. However, we are not yet at the same stage with that issue as we are with ethnic background or homosexuality; it is entirely different. 

I found annex F interesting, and I want to hear what the Minister will say—I have warned him that I will ask questions on this subject. There is an assumption in the code that gender is binary, and that what must be done is to establish the person’s gender. However, there are a number of intersex conditions, for example, and people who would describe themselves as being somewhere between male and female, which is increasingly recognised in various bits of official documentation. 

Surely we are not actually interested in establishing gender. As the police said last night, we are interested in establishing the gender of the officer who should search them; we do not actually care to categorise that person by gender. I am also interested in how much consultation there was on the measures with groups that represent people from the transgender community. I suspect, from the people to whom I have spoken, that there was little. 

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To go through the details, annex F3 looks at gender recognition certificates. A person who possesses a gender recognition certificate must be treated as their acquired gender. That is very clear, but there is an issue, because the current training provided—certainly to the British Transport police and to the Metropolitan police—specifically states that a gender recognition certificate should not be asked for. What does the Minister intend here? Is it the intention not to ask for one, but that where somebody chooses to reveal that they have one, that information should be used? Or are we asking the police to change the training that they provide? Under paragraph 3(c) of annex F, rather than asking them what preference they have and how they should be dealt with, it would be simpler to ask who should deal with them, which I think would be a better approach. 

Paragraph 4 of the annex is left entirely blank, and I assume that was deliberate to see if anybody actually read it. It moves straight on to paragraph 5. It then states that anybody else dealing with that person should be advised about 

“the doubt as to the person’s gender”. 

There is an issue as to whether it is about doubt, or whether it is about the fact the person is transgender and has decided to describe themselves in a particular way. That is not the same as doubt. I am concerned because that suggests that there would be outing of people who may not wish to be outed. For many people, that is an extremely sensitive subject. 

Section 22 of the Gender Recognition Act 2004 makes it an offence to disclose information about gender recognition certificates, except in certain circumstances. There are cases of gender recognition certificates having been demanded inappropriately at various events; Pride was one example. I am worried that what is being said to police is that if they establish this, they should out the person with whom they are dealing to any other police officer who deals with them. 

Finally, paragraph 7 of annex F explains what should be done when a person has elected which gender they consider themselves to be, but is not treated as being of that gender. There is nothing that I can see in the rest of the code—perhaps the Minister can point it out to me—that says what should be done when someone whose gender is very clear is not treated as being of that gender. Why are we saying that it is all right not to treat somebody who is transgender as being of the gender that they use to describe themselves? Why is there a special exemption to say that it is not as important in such cases? If there is to be a record—and if such errors are made, I think there should be a record—will it be analysed so that we can find out how often that is a problem? Having made a number of criticisms of annex F, I should say that I am quite pleased to see that there is an annex F and that the issue has been taken seriously. I just wish that the final outcome had been more perfect. 

I should like to mention code D briefly and the use of mobile fingerprinting. I hope that will be relatively curtailed where there is a suspected offence and it is not possible to establish identity. Paragraph 4.10 of code D deals with immigration law. It says that data will be retained if fingerprints are taken in connection with immigration inquiries. Can the Minister confirm that that is what is meant by that? Would he be prepared to

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agree to destroy the data if somebody leaves, and to leave in the provision that says that people should be told why their prints are taken? It seems perfectly reasonable for people to be told that. 

3.27 pm 

Mr Lammy:  I am grateful to the Minister for taking as many interventions as he did. The number of questions that he has been asked—and not just on this occasion, but when he came before the all-party group on race and community—is an indication of the sensitivity of the issues. It also shows the balance needed in a democracy between the power that we afford the police, the importance of their getting on with their job of keeping us all safe, the rights of minorities, and understanding that discrimination and prejudice exist in society, and probably will continue to do so for some time. 

I want to associate myself with the remarks made by the hon. Member for Cambridge. I took the Gender Recognition Act 2004 through Parliament and it was there that I came across the transgender community and learned about the sensitivity of the issue and the discrimination that this small minority group faces in broader society. I hope that the Minister will answer all the questions that have been raised. 

My remarks do not apply only to the minorities who are obvious because of the colour of their skin. The Minister did not say what representations he has had from Traveller communities or communities from eastern Europe, all of whom in recent times have been subject to discriminatory activity. Fortunately, we are talking about small sections of our police forces, but as we know, it takes only one rotten apple to cause tremendous problems in a community. That is why I am really concerned about what happens when an individual officer is stopping and searching routinely. When he stops a particular individual, that individual may not be black; it may be in a rural area and the individual is gay. Because of the changes that have been made, we cannot now follow the pattern. We cannot follow the consistency if that officer moves from one force to another. 

I do not know what the particular powers might be in one part of the country as opposed to another. I sympathise with the Minister when he says that we must reduce bureaucracy. We absolutely must reduce bureaucracy for front-line police, but not at the cost of community engagement, because the cost if community engagement goes wrong is considerable; we have seen that on successive occasions. 

In an intervention, I mentioned the Gifford report on the Broadwater Farm riot. The Minister mentioned the Macpherson report. We have had so many reports that have indicated the importance and sensitivity of this issue; that is why I am concerned, even though he says that he will consider the issue. He came into office and consulted for only four weeks. He does not work hard enough at reaching hard-to-reach groups, or at understanding the context in which this statutory instrument is being considered—the context of rising unemployment in constituencies such as mine. There is a real issue with the particular cohort who complain about the use of the powers—young black, Asian and Muslim men. They are the people who are disproportionately unemployed in this country and, in particular, they are the community whom we want to keep onside with the police. 

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The powers are relevant not only to minority communities. It is not rocket science to realise that there will be a lot of marches and the potential for greater civil unrest in this next period because of the challenges in our economy. We have seen from the way that students have reacted to kettling in Whitehall that they, too, need to understand that the police are being sensitive in the way that they use the powers. 

Turning to paragraph 10 of the explanatory memorandum, I am surprised that there has been poor consultation and no proper impact assessment on the effect of the measures. I cannot understand that, given all the reports that there have been and all that we know about the sensitivity of the issues. I remind the Minister that the national figures show that black people are stopped and searched under section 60 at 26 times the rate of white people in this country. 

Against that backdrop, it is important that the Minister offers the safeguards and the understanding that is necessary. His decision to move from recording 12 pieces of information to seven raises issues because of what he has left out. If a policeman injures someone during a stop-and-search, that should be recorded. I say that because I imagine that it happens incredibly rarely. If it happens, therefore, I cannot understand why it is bureaucratic to record it. We approach injury in the police station with tremendous sensitivity in this country. We expect records, we expect a process, and we expect the doctors to be called. Why would it be different if someone who is stopped and searched by the police on the street is injured during that search? How are we meant to tell whether there is consistency between forces? This is hugely important, and the Minister has not been able to offer any guarantees on how we will assess consistency going forward. 

I have grave reservations about the decisions that have been made. I want to put on record my warnings that this will lead to yet another report in the years ahead. I ask the Minister to keep the proposals under review, because I fully expect to return to these issues on a future occasion. 

3.34 pm 

Mr Elfyn Llwyd (Dwyfor Meirionnydd) (PC):  It is a great pleasure to follow a powerful and well-informed speech. The right hon. Member for Tottenham knows what he is talking about. I will declare an interest, because for several years I used to practice at the criminal Bar, and I am a member of the Justice Committee. 

In 1982, a pilot scheme for the introduction of a code to PACE was started in north Wales, and I had the privilege of being a solicitor on a panel of judges, barristers and senior police officers who oversaw the introduction of the code. It was universally approved because it brought clarity and certainty to the accused and, crucially, to the police officers. It has stood the test of time well—it codified rights and procedures in a clear and informative way. 

Today is, I think, a landmark. Over the years, the Home Office has been like a big octopus, its tentacles grasping at every police force in the country, making them collect all kinds of information of no relevance to anybody, man or animal. Now, however, we have devolution of practice, which is revolutionary, coming from a Home Office Minister. Counter-intuitively, I do not like it,

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simply because I remember being in this room fewer than five years ago, when a commissioner of the Met was giving evidence. Unfortunately, he had to admit that his force had institutional racism within it. Of course, most police officers are perfectly decent individuals; I speak as the son and brother of police officers; I am not anti-police. However, the commissioner, looking at that particular subject, had to admit that there was institutional racism. That is one of the reasons why I have concerns about what is being proposed in the order. 

We know that the driver of the amendments to code A is the European Court of Human Rights judgment in the case of Gillan and Quinton v. UK. It imposes stricter limits on the use of searches of persons and vehicles under section 60. The code B amendment deals with police powers to search and seize property, reflecting the findings of Khan v. Commissioner of Police of the Metropolis. The amendment to code D refers, I think, to the judgments in R v. Chancey and R v. Smith, which make new distinctions between visual identification taken from images on closed circuit television and that from eyewitness recognition. 

The other, equally reasonable, driver is a response to the age-old cry to release policemen from having to fill in endless forms. We have all heard it, and we have all declared that we support taking them off paperwork and on to the streets. I know that Jan Berry, when she left the Police Federation, did a lot of good work in that regard. 

However, I note that some of the changes to the code are troubling. I do not say that all PACE procedures are sacrosanct, because they are not; things change, and practice and law change, too. However, some telling and cogent concerns have been expressed by groups such as Liberty and Justice. Among them is the argument that the end of recording stop-and-account undermines the recommendations of the Macpherson report into the death of Stephen Lawrence. There will be no longer be a mechanism to ensure that the police are treating people fairly when a small number of rotten apples go ahead with their practices, although I am not in any way denigrating the whole police service—nor would I. 

The Merits Committee argued that section 44 powers are being implemented too broadly, and that improved targeting would produce better efficiency, in any case. Much is made of the tabloid-style statistics that suggest that BME males are much more likely to be stopped than white males. It is a fact, and we have heard it; the figure is six or 26 times, which are huge numbers. The perception that that gives to communities is not consistent with good relations between the public and the police. We must of course remember that good policing is done by consent, and when that consent breaks down, law and order break down, and anarchy comes in. 

Macpherson argued that the disproportionate number of stops, rather than questioning, searching or arrests, was the thing that was damaging community relations with the police. It seems that those will no longer be recorded unless they are chosen to be recorded. I have my concerns about that, because removing the collection of those data will mean that we have no statistical evidence that will illustrate or refute accusations of police malpractice, which might possibly undermine community relations with the police, as I have said. How can the police be held to account if no data are

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collected? It does not matter whether we have a police authority or a police commissioner; if the data are not collected we have nothing to work on. I again stress that I am talking about a minority of police officers. 

The proposed changes to section 60 of the Criminal Justice and Public Order Act 1994 are welcome, because a previous draft might have led to a greater amount of racial profiling and stereotyping. I still have some concerns about the breadth of the order, and the fact that the scrapping of the stop-and-account form will make the monitoring of equal treatment in policing harder to achieve. There are good reforms, specifically the attention paid to the Disability Discrimination Act 1995, as recognised in code A, and there is the fact that the powers in code B to search and seize will be used fairly reasonably and responsibly, with due respect and without unlawful discrimination. The fact that officers must now have reasonable suspicion to conduct a stop-and-search under section 44 of the Terrorism Act 2000 is also positive. 

Another driver of the changes is the desire to reduce bureaucracy, which we all welcome. The Government argue that the purpose of the changes is to improve efficiency by between 350,000 and 800,000 police man-hours. As we have heard, the Merits Committee expressed its concerns about the length and depth of the consultation and, in fairness to the Minister, he has graciously conceded that lessons will be learned. Unfortunately, that does not change the nature of the consultation on the order, but it is comforting, to say the least, to have heard the hon. Member for Gedling quote from the Committee in the other place about the order being kept under review, which is an important step forward. 

I will not delay the Committee long. In conclusion, I hope that we will strike the right balance between the perfectly sustainable rights of individuals, and the reasonable amount of help that the police need to carry out their duties. Given that there are some bad apples—very few, but some—in our communities, I am concerned that no track will be kept of their behaviour, as that might take us back in time, not forward. With those caveats, I hope that the Minister will respond to the questions put to him by the hon. Member for Gedling and the right hon. Member for Tottenham, and will confirm that the order will be kept under review, because if things are not seen to be correct and our fears are borne out, urgent action can be taken to prevent endemic problems coming back into our communities. 

The Chair:  I thank hon. Members for their consideration as far as time is concerned. 

3.43 pm 

Nick Herbert:  I am grateful to hon. Members for their contributions and for the genuine concern that they have shown about the changes. I hope that I was able to reassure them to some extent in my earlier remarks, but I will attempt to do so again. 

The hon. Member for Gedling recognises the need to strike the right balance between bureaucracy and ensuring that we have proper recording, where necessary, for the purposes of community confidence. It was the previous Government who reduced the recording requirement for stop-and-account from recording all the multiple

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factors that were previously required to only the self-defined ethnicity of the person stopped. That direction of travel began under the previous Government, and we have extended it. The previous Government sought to achieve the right balance, and recognised that the climate had moved on. In particular, and it is worth dwelling on this, the extension of neighbourhood policing has been immensely important. 

The way in which police forces now go about engagement in their local community has improved policing in a variety of respects. We now have police community support officers who are embedded in their communities and whose job it is to liaise closely with them. That is significantly different from the original position that we had in policing, when some of the problems arose that gave rise to these changes. It has been an important and positive development in policing, and it has replicated what has happened in other countries that had similar problems with the police and the public. In my view, it is the single most important thing that we can do to address those concerns, and to make sure that in Sir Robert Peel’s words, 

“the police are the public and the public are the police” 

and that the police are not detached from their communities. Senior police officers recognise the importance of that. The way in which they now go about policing, and the way in which they are determined to lead their forces, reflects that, as do conversations with borough commanders in areas of London that have such problems. 

Several hon. Members have expressed concerns about disproportionality, which we take seriously. It is important to separate stop-and-account and stop-and-search. Stop-and-account does not cause the same concern as stop-and-search, and I do not believe that the resulting figures are useful to us. There is, however, concern about stop-and-search, which is why we have kept the reporting requirement. Hon. Members have asked how we will know, but we have kept essential reporting requirements in relation to stop-and-search on a national basis for that reason. It is still available to forces that want to ensure that they are maintaining that community confidence. 

It is significant that the Met has decided that it needs to approach the matter cautiously, which suggests that forces do not need a national diktat ordering them to operate in certain ways. The force itself has decided that caution is required, and it will consult very carefully about how to approach stop-and-search. The national requirement is not influencing how it operates. I have a little more confidence in the way in which officers are now policing these issues, but questions of disproportionality are important and must be addressed, and we must be alive to the importance of ensuring the confidence of minority communities in policing. 

The hon. Member for Dwyfor Meirionnydd has asked about disproportionality in relation to section 60. It is worth noting that the vast majority—three quarters—of section 60 searches take place in London. The national figures on disproportionality are, therefore, pretty skewed. Even adjusting for that, there is disproportionality in London as a whole. We need to look at the figures much more locally, and consider the impact of the use of section 60 on the communities that are affected. The impact of Operation Blade and stop-and-search on serious violent crime, where that power is being employed, is designed to protect the communities that are particularly

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vulnerable to it. The Met judges that the local community support the operation and it judges that power to be important. I also think that such operations are important, although I fully agree that they must be used carefully. I do not think that there is any disagreement with the Met about that at all. 

All hon. Members have asked whether we will keep this under review. All Government policy is kept under review—that is the mantra—but we must, of course, keep this area of policy under review. Our drive to de-bureaucratise is important, because we must free up officer time. Officers are tied up in too much red tape, which impacts on the extent to which they can be released for other front-line duties where the public want to see them. We must maintain that drive, but we must do so in a sensible and careful manner, and we must ensure that we achieve the right balance between the need for regulation and the benefit. 

Vernon Coaker:  What the Minister says about keeping this under review, which is the point that we have all made, is helpful. In recognising that he has said that, all of us and anybody else who reads the account of these proceedings will want to know that it will be kept under active review, and that it actually means something. At some point, the Minister will need to produce a report that looks at what the implications of the changes have been, so that we can look at it—in whatever way the Minister deems appropriate, given that we are not collecting figures on stop-and- account—and make a judgment on whether our concerns have been realised and on what the Ministry is going to do about them. It needs some meat on the bones in terms of what that review actually means. 

Nick Herbert:  The hon. Gentleman will understand that I will not commit to a review timetable, but the Government must pay attention to those issues. We want to ensure that policing is conducted with the consent of local communities. We want to promote community cohesion. We want to address issues of disproportionateness. We have been willing to take the necessary steps to deal with situations where police powers are not used properly, and that is why we took action on section 44, and there has perhaps been insufficient credit in the discussion for that—although, the European Court of Human Rights, of course, required us to do so. 

The hon. Gentleman asked about the National Policing Improvement Agency and Next Steps. With the NPIA, we are looking at the results of the initial roll-out of Next Steps, incorporating the lessons learned and seeing whether the programme roll-out can be accelerated. It is an important programme, which provides guidance to police forces as to how they should operate in this area. He asked why the panel was abolished, but the panel was wound up because of a decreasing level of attendance by community members. That is another area where it makes sense to engage with local communities, because the issues are local. The work of Next Steps is, however, important. 

On consultation, I have heard what hon. Members have said. I made remarks about that earlier, and we must learn lessons from the way in which we consulted. I also heard what hon. Members said about the availability of information on the Home Office website, and I will

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certainly have a look at that. One reason to do so is that there was a considerable misrepresentation of what we intended for the changed guidance on section 60. That blew up into a media report that was inaccurate in relation to our intention, which was actually to address the point and to ensure that people could not be stopped on grounds of their ethnicity alone. We have now made it absolutely clear that that was not our intention. I am happy to agree with hon. Members that dialogue in that area is important, and the Government need to make sure of that. 

As I have said to some of the groups involved, it is equally important that they engage with us. They do not need to shout at us through the pages of a newspaper. My door is open for them to talk to me. There is an opportunity to raise points with us directly, and I am happy to engage with groups such as StopWatch, Liberty and all the others to ensure that we have a sensible dialogue. I was concerned that our proposals were misrepresented, and I am pleased to have cleared that up now. 

On fingerprints, I dealt with that issue in my earlier remarks when I said that they would be automatically destroyed by the machines. 

As to the difference between sections 60 and 44 and why we are not making similar changes, there are two key points. Section 60 authorisations are much shorter in duration—24 hours, rather than 24 days—and they are more specific. They look for offensive weapons or dangerous instruments, rather than the broad category of “articles of a kind”, which could be used in connection with terrorism. Also—this is important—a senior officer making a section 60 authorisation must reasonably believe that such items have been carried in the area, or that a violent incident has or will take place, whereas with section 44 the senior officer merely need consider such an authorisation expedient for the prevention of acts of terrorism, so it was much wider. We therefore thought there was a significant difference between sections 44 and 60. 

My hon. Friend the Member for Cambridge also raised a number of issues on the consultation, which I hope I have addressed. He asked a number of detailed questions on annex F, which is designed to provide additional guidance to the police service on the conduct of searches involving members of the public who appear to be transsexual or transvestite persons. We consulted various lesbian, gay, bisexual and transgender groups. The clear intention is expressed in annex F, which says that if a person expresses a preference to be dealt with as a particular sex, they should be asked to sign the custody record to indicate their preference, and 

“If appropriate, the person should be treated as being that gender.” 

Should the person not be treated as their elected gender, the reason must be recorded in the individual custody record. 

My hon. Friend asked a number of other detailed questions, but I do not really have time to respond now. I am happy to write to him, but I hope that I can reassure him about how we have represented such a vulnerable section of the community. 

Finally, on the comments of the right hon. Member for Tottenham, a full impact assessment, including an equality impact assessment, was done alongside the

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Crime and Security Bill in the previous Session of Parliament in respect of stop-and-search changes. 

We now come to a crucial point. He asked why we removed the requirement to record an injury during the course of stop-and-search. He described that as one of the crucial losses of data. However, what we are removing is the requirement to record “whether or not” an injury was caused. Every time there was a search, a box had to be ticked saying that injury was not caused—that is not a necessary requirement. Of course, if any injury is caused, any police officer would want to note that, in his or her own interest, because an allegation would be made if an injury was caused. 

That was an example of exactly the type of unnecessary reporting requirement. Why would someone have to record that an injury is not made? We are trying to achieve a sensible balance by removing that national reporting requirement. 

Mr Lammy:  The Minister could have decided to record if an injury is made. I have done sufficient criminal cases to know that police officers do not always record in their note books when they have committed an injury. 

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Nick Herbert:  First, that misses the force of my point, that that is not the requirement at the moment, and it was not the point made by the hon. Gentleman. Secondly, I question whether that recording requirement is necessary to deal with the point, because an allegation would be made. I am not sure that he is making the case, and I do not accept the necessity. 

We take the issue of disproportionality seriously. We are determined to achieve the right balance of necessary reporting requirements. I remind hon. Members that we are retaining those in relation to ethnicity, which will continue to be recorded for all stop and searches, as a national requirement. The other changes are proportionate, will reduce bureaucracy and will save officer time. Local forces can continue to have the requirements they require in order to build and maintain community confidence. I think that we have the balance right. 

Question put and agreed to.  


That the Committee has considered the Draft Police and Criminal Evidence Act 1984 (Codes of Practice) (Revision of Codes A, B and D) Order 2010. 

3.58 pm 

Committee rose.