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Police Reform and Social Responsibility Bill
|©Parliamentary copyright||Prepared 18th February 2011|
Publications on the internet
Police Reform and Social Responsibility Bill
Police Reform and Social
The Committee consisted of the following Members:
James Rhys, Committee Clerk
† attended the Committee
We are towards the end of the Bill, but the clause introduces a significant and important change to the law on universal jurisdiction. As the Government will know, that is something we support in general, but obviously we need to discuss certain issues and, no doubt, there are some that the Minister himself will want to put on the record. I accept that the right hon. Gentleman will reiterate that such significant, poignant and symbolic legislation is embodied in all sort of international treaties and conventions. Universal jurisdiction is rightly seen by many people as something that ensures no hiding place for someone who has committed any of the worst crimes that we can imagine anywhere in the world, let alone within our own country. Notwithstanding some of the discussion that we might have on the clause and its implementation, it is worth restating that no member of the Committee would seek to erode its thrust.
We have tabled a probing amendment, which is none the less important. As the Minister knows, controversy has arisen among people who are concerned that the change to the process of universal jurisdiction will allow individuals who may be guilty of serious crimes,
Under the Bill, there is to be a requirement for the Director of Public Prosecutions to consent to a magistrate issuing an arrest warrant when a private prosecutor has laid an information. Kate Allen, the United Kingdom director of Amnesty International, said:
“This is a dangerous and unnecessary change. Unless a way of guaranteeing a means of preventing suspects fleeing can be built into the proposals, then the UK will have undermined the fight for international justice and handed war criminals a free ticket to escape the law.”
She points out some of the dangers. Notwithstanding the fact that she does not agree with the change, she says that if safeguards were built into the policy, they would mitigate some of the danger. As the Minister knows, Justice has similar views.
The whole thrust of our argument this morning will be to suggest to the Government that safeguards need to be built into the Bill to address the worries of Kate Allen and many others about the impact of the change. We support the clause, but delays should not hamper justice. All of us want prosecutions to proceed whenever possible, and the amendment would introduce the necessary safeguard. The establishment of a specialist unit in the Crown Prosecution Service, with people trained in that area of work, who know about it and understand the context of the decisions, would help improve speed and minimise delays. People would also have someone to go straight to rather than, as sometimes happens, being left wondering to whom a warrant should be given, to see whether the DPP agreed to it.
I have suggested in the amendment that there should be a specialist unit in the CPS, but the Minister might also consider, although this is not in the amendment, whether it would be useful to have a specialist unit in the Metropolitan Police Service. Is there already such a unit, or are trained officers available, to whom an immediate reference can be made when a warrant is sought?
The purpose of the amendment is to ensure that, notwithstanding the proposals in the Bill, serious and valid cases are not lost as a result of delays in obtaining the DPP’s consent to the issuing of an arrest warrant. I will keep my other remarks for the clause stand part debate.
Dr Julian Huppert (Cambridge) (LD): Universal jurisdiction deals with the most serious issues around the world. As has already been said, it is clear that we have to deal with them in a very serious way. There are two issues to discuss. First, is there a need for a change? Secondly, if there is to be a change, is the provision the right way to do it? The amendment relates to the second question, so I will talk about whether there is a need later. I give hon. Members advance notice that I am not yet persuaded that there is a need for a change.
If there is to be a change, the real question is whether the DPP will be able to respond promptly, or be available to make the necessary decisions. That is at the heart of the amendment. I have been concerned about whether there would be capacity, and I understand exactly what the hon. Member for Gedling said, but I was somewhat mollified by the comments of Keir Starmer in his
In general, I hope that the Minister will be able to confirm that what Keir Starmer said in his evidence to us is not only his own view or the official view of the current DPP, but what the Government believe the policy of the DPP ought to be. It makes a huge difference whether the DPP will or will not try to act promptly. I look forward to hearing specific reassurances from the Minister on those points.
There is an issue of simply having a team ready and available. It does not have to be a specific team that works only on such matters, but it has to understand the specific timeliness of universal jurisdiction cases, and be ready and prepared to deal with them. Mr Starmer has made it clear that he would need such people, and I am sure that the Minister will be able to confirm that. I gave him in advance a list of particular points on which I would like confirmation, to make things easier for us all.
It is also a question whether that team will be able to look at information in advance. Will the DPP and the team be prepared to look at and process the evidence ahead of time, so that when there is a need for an application to happen, it can be done very quickly? Mr Starmer invited people wishing to pursue cases to engage,
The submission from Hickman and Rose Solicitors— PR 128—which we received today, is relevant. It refers to its experience of trying to work with the existing team in the CPS, and to the Metropolitan police, which we will come on to in the clause stand part debate. I hope that hon. Members have looked at the letter that it sent round, and which it received from the CPS team. It states:
If there will be a system like this, and a team to look at things, will the team look at evidence in advance? When there is notification that someone will be landing within an hour, a day, or a week, the team would then be ready and would not have to start afresh the process of going through a complex legal case. That is a key point, and I look forward to the Minister’s response on it.
What test would this team in the DPP be using? How would it establish exactly what was happening? I hope that the Minister will confirm what Mr Starmer said, which was that the team would use a threshold test where time was short. That would be below the threshold normally used to go ahead with a prosecution, although, of course, well above the standard test for an arrest. How would such a team be expected to make its decisions? What would it be looking for? How would it interpret
Mr Starmer said a number of times during the session that there was a powerful force in favour of a prosecution, because universal jurisdiction crimes are such large things. I would appreciate the Government’s agreement with the DPP that that is the case—that there is a powerful weight in favour of prosecuting and that public interest tests would have to be equally overwhelming to counterbalance that. We do not want the Attorney-General simply to comply with a suggestion of vague general interest. It has to be more substantive than that.
How will the team work and how quick can a response be? It seems that there are three responses that the DPP could give when faced with a request for a warrant. One is to say yes; one is to say no; and, one is not to get round to it quickly enough, so that it does not matter. In the US, that would be known as a pocket veto. I think that we would all be very keen to say that, while we might accept that the DPP could have some say, we do not want to see a default no, simply because the DPP did not have enough time, or a large enough team—whichever process it is—or had not looked early enough, to make a decision. I want the Minister to confirm that the DPP will use best efforts to process claims promptly, to avoid that situation.
Lastly, we will need some way of monitoring the provision, because it is a change. Will the Minister commit to a mechanism to report back on cases, other than parliamentary questions, which would be an alternative? The Government should report to Parliament, not on cases that the DPP accepted or declined, but on cases on which he failed to act fast enough for the situation to be settled sensibly, one way or another. Can we have some way in which Parliament can have a look if, whatever the size, structure or timeliness of the team, it is not able to deliver a decision quickly enough? I hope that the Minister agrees that, if that happened, we might need to revisit this and look at a different process at some stage. That is all I have to say on the amendment; I have further comments on the general principles, which we will come to later.
The Minister for Policing and Criminal Justice (Nick Herbert): Good morning, Mr Benton. I understand why the Opposition and my hon. Friend the Member for Cambridge have advanced their cases, to ensure that these applications are dealt with in the most timely manner. It is right and proper to do so, because the offences that we are discussing are among the most serious, and they are ones that the Government take seriously, too. We will be having a more wide-ranging debate about the effect of clause 151 in our clause stand part debate.
“We have people who can work around the clock and we have enough trained people so that someone is always available.”––[Official Report, Police Reform and Social Responsibility Public Bill Committee, 20 January 2011; c. 126, Q241.]
I can confirm that the people who deal with the applications to which the clause applies are members of a specialist unit in the counter-terrorism division of the CPS. They stand ready to act immediately in emergency cases.
On the point that my hon. Friend the Member for Cambridge made about early engagement, the DPP was at pains to point out in his oral evidence that his office is encouraging those groups with a concern to engage with it. He said that
Although he was also clear that he could not give an absolutely substantive answer to the amount of time that would be necessary to take a decision, I think we all understood that they would move as fast as possible. He said:
“We would act as quickly as we could, but we must act carefully, because we have a legal test to apply.”––[Official Report, Police Reform and Social Responsibility Public Bill Committee, 20 January 2011; c. 126, Q240-241.]
I do not think that I can usefully add a great deal more, because what the DPP said was clear, but I confirm, as my hon. Friend invites me to do, that we agree that there are powerful public interest reasons to prosecute in a case that has satisfied the evidential threshold. The offences are serious, and the Government share the belief that those who commit them should be brought to justice if that threshold is met. There are powerful public interest reasons to prosecute, and the DPP was right to say so.
The hon. Member for Gedling explained that his amendment was a probing amendment, which I am sure that he will want withdraw. On the specific technicality referred to in his amendment, I hope that by reiterating the DPP’s assurances I have been able to provide as much reassurance as possible that such cases will be dealt with swiftly, and that by early engagement with the DPP’s office, the risk that they may be lost while an application is considered can be mitigated.
Vernon Coaker: I thank the Minister for his reply. The remarks of the hon. Member for Cambridge highlighted some of the issues. It was extremely helpful to have this short debate because the speed and the potential delay concern people. The Minister was right to reiterate the points made by the DPP in the evidence session to reassure the Committee. He was particularly helpful in reminding us that the DPP had pointed out that in essence there already was a specialist unit within the CPS, ready and able to deal with such cases as swiftly as possible; that is an important assurance. Given that we have emphasised some of the points that I think people would want reiterated, I beg to ask leave to withdraw the amendment.
Nick Herbert: Yes. I am grateful to the hon. Gentleman. The purpose of the clause is to require the consent of the Director of Public Prosecutions before an arrest warrant for war crimes under the Geneva Conventions
The problem that the clause is designed to solve arises out of three things: the principle of universal jurisdiction, the right of private prosecution and the basis on which the courts will issue an arrest warrant. Universal jurisdiction enables certain offences—a very small number—to be tried in the English courts even though the crime took place outside the UK and regardless of the nationality or residence of the offender. A private prosecution may be initiated for any offence, including those attracting universal jurisdiction, if the prosecutor can obtain a summons or warrant from a magistrates court, and courts can issue an arrest warrant on the basis of far less information than would be required for a prosecution to be allowed to proceed. The upshot is that a person might be at risk of arrest in cases where there is no prospect of a successful prosecution. This might happen in relation to a very grave crime alleged to have been committed outside the UK by a person who is not a British citizen, does not live here and, indeed, has no connection with this country apart from being present here.
The problem is not that large numbers of warrants are being issued—the Government are aware of only two—but in the perception that visitors to this country might be at risk of arrest. That such a perception exists is certain and it is not confined to Israel, although the two instances in which an arrest warrant was issued involved Israeli nationals. There are indications that some people may not be prepared to visit the UK for fear of a private arrest warrant being sought. We are concerned in particular that these may be people who are, or have been, in leading positions in their countries, with whom the Government would wish to engage in discussions. This is unsatisfactory and risks damaging our ability to help in conflict resolution and to pursue a coherent foreign policy.
Clause 151 is a modest provision. All that it is designed to do is to ensure that, in universal jurisdiction cases, a warrant is issued only where there is a realistic prospect of a viable prosecution. The Opposition canvassed a different proposal before the general election, when they were in government, which removed the right of private prosecution altogether—the previous Government also recognised, as the hon. Gentleman has noted, that there was a problem. However, this proposal does not go as far as to remove the right of private prosecution altogether, nor does it, as some have alleged, interfere with universal jurisdiction. It does not, as some have suggested, allow war criminals to come to Britain with impunity. Any genuine war criminals who are under that misapprehension might have a disagreeable surprise if they put it to the test and the DPP, as we have just discussed, has reaffirmed the seriousness with which these matters would be decided in the public interest. Private individuals will still be able to apply for a warrant, provided there is a realistic prospect of a viable prosecution taking place. Suspects will also continue to be liable to prosecution by the Crown Prosecution Service, which is likely to be more appropriate for offences of such gravity.
I reiterate that the Government’s commitment to tackling grave international crimes is something we take extremely seriously and we are confident that the proposed change is entirely consistent with it.
Vernon Coaker: I thank the Minister for that introduction; he was right to start the debate on this important clause. We believe that it is essential—as, indeed, do the Government and all members of the Committee—to maintain universal jurisdiction so that, even where a crime has been committed by someone outside one state, and even where there is no link between the prosecuting state and the suspect, the victim or the place of crime, prosecution is possible and, as I have said, there is no hiding place for those who have committed some of the worst crimes imaginable. This historical right has been seen as an important constitutional safeguard against the failure of the authorities to prosecute and, in that sense, we must do all we can to protect it. We all agree that that is important. However, the proposed change has been prompted by controversy over recent efforts by private prosecutors to obtain arrest warrants in respect of foreign political and military figures who have been visiting or, indeed, proposing to visit the UK.
As the law stands, the arrest warrant can be made by the magistrate before the consent to prosecute, which is required from the Attorney-General. That has caused some controversy. The Justice Secretary told us in November that in the past 10 years, 10 applications were made for arrest warrants under universal jurisdiction, only two of which were granted, as the Minister has said. I shall give some interesting examples: in April 2002, an application by Peter Tatchell for the arrest of Henry Kissinger was refused. His arrest was demanded on the grounds of war crimes in Vietnam, Laos and Cambodia. In September 2005, an application for an arrest warrant was granted against Major-General Doron Almog, the former head of Israeli forces in the Gaza strip. He avoided arrest, however, after his plane turned around after landing at Heathrow airport and returned to Israel. The Minister alluded to the case in December 2009 of Tzipi Livni, Israel’s former Foreign Minister, who cancelled a visit to the UK after having an arrest warrant issued against her. In response to those cases and others, the then Foreign Secretary, my right hon. Friend the Member for South Shields (David Miliband), said that the Government were looking at how to avoid such situations in future. Now the coalition Government have come forward with their own proposals.
As we said before the election, the law should change to bring arrests into line with prosecutions. The Government propose that the Director of Public Prosecutions must give consent to an arrest warrant in the same way in which the Attorney-General must give consent to a prosecution. The proposal will not change the standards for prosecutions or reduce the likelihood of a successful one. Cases that are strong enough to get the go-ahead by the Attorney-General for prosecution should also get the go-ahead from the DPP for arrest. Importantly, the proposal does not prevent private citizens from applying for an arrest warrant, as the Minister has said. It does, however, seek to address some of the concerns that have been raised. Andrew Dismore, the former MP and Chair of this House’s Joint Committee on Human Rights, has said:
“I would like to see our courts protected from being used as campaign forums by politically motivated groups that are not really interested in justice, but are interested in scoring party political or other political points in this long-running conflict in the middle east, which is not going to be resolved in courts of law.”
“to decide whether this should happen. The Attorney-General is, in the end, responsible for deciding which prosecutions should go ahead, based on the likelihood of both a conviction and a public interest test. We may have the embarrassment of leaders being arrested but no prosecution following on from that.” —[Official Report, 12 January 2010; Vol. 503, c. 200WH.]
Andrew Dismore referred to the Attorney-General, and there was criticism that that in itself would politicise the judicial process. The proposals, which are better and more sensible, are for the decision to grant an arrest warrant to be made not by the Attorney-General, who makes the prosecution decision, but by the DPP, which is an important change.
The Bill does not prescribe, however, how the DPP should reach a decision about whether to give consent. Which factors, such as the weight of evidence or the likelihood of prosecution, should be taken into account? Will the Minister comment on that? Will he confirm that the changes will not weaken our ability to prosecute those who are guilty of serious international crimes? Can he explain how the involvement of the DPP will prevent international criminals having time to return home and escape prosecution? It would be useful for the Minister to set out why diplomatic immunity is not, in itself, a sufficient safeguard. Will he confirm that the measure is not simply a consequence of lobbying from the Israeli Government? Will he say how our system compares with those of other countries, so that we have some context? What does he expect in terms of the liaison between the Director of Public Prosecutions and the Attorney-General?
We believe that the law should be changed so that private citizens can secure an arrest warrant, even when there is no prospect of a prosecution. We support the proposals to change the law to bring arrangements for arrest more into line with those for prosecution. However, it is extremely important that such changes do not reduce the chances for successfully prosecuting those who have committed serious international crimes. That is what people would expect, and that is what they are concerned about. As the Bill goes through Parliament, with this change in it, it is incumbent on us in Committee and on Report, as it is incumbent on the other place, to ensure that those concerns are addressed and that reassurance is provided.
Dr Huppert: As I said briefly when we discussed earlier amendments, I am not persuaded that there is a need for a change. I do not think that a sufficiently strong case has been made about why the current system is not working. In 10 years, two warrants have been granted and at least eight, perhaps more—of course, we do not know the details—were rejected, which suggests that the system is working quite well in filtering out claims that have no merit. The case of Mr Tatchell was given as an example, and it was concluded that the system seems to be functioning.
Michael Ellis (Northampton North) (Con): Does my hon. Friend agree that the problem is not necessarily the frequency of the incidents but the damage that can be done to British international relations and the reputation of the Government?
Dr Huppert: Indeed, but we already have a process that filters out the least meritorious. We have no idea what would have happened to those two warrants if there had been a process involving the Attorney-General or some other system. It is entirely possible that they would have been granted in any case. I will come back to why it does not address the concern that I think my hon. Friend is heading towards. I do not think there is evidence to suggest that warrants have been unreasonably issued. It is not clear that those two were issued in cases in which the DPP would have said that they would not be. It is hard to tell, because the DPP did not examine them, but it is not clear.
There has been a lot of talk in the press and among some lobby groups that a person simply applies to a magistrate. That is rather unfair and dismisses the role of the people who actually make the decision, which is in the special jurisdiction of the senior district judge at Westminster magistrates court, not a magistrate somewhere who happens to be free on a Thursday evening. It is taken very seriously. Evidence from Hickman and Rose cited one example in which there was a lot of analysis and discussion. A lot of care and attention went into one particular case that they dealt with, which shows that such cases are handled sensibly.
There is a risk of people doing things purely for grandstanding. I accept that grandstanding will happen, but I do not see how that changes anything. If somebody wishes to pick—I will not pick on Mr Tatchell—a case to get publicity, they will still be able to do that. They will simply say that it has gone to the DPP, and they will still be able to generate publicity. If they know that they have the sort of case for which the senior district judge would not grant the arrest warrant, they can still get the publicity in the meantime. The measure does not solve that problem at all.
Mr Matthew Offord (Hendon) (Con): I do not doubt the passion with which the hon. Member for Cambridge speaks about the issue, but one of my concerns is the use of selective cases. For example, the arrest warrant is often used against Israeli politicians. There have been many examples of its not being used. There is the example of a former dictator in Pakistan who was accused of crushing political opponents. He came to the United Kingdom to address the Cambridge university students’ union. He came for a week and no one took any notice of him. According to The Times in 1999, another individual was suspected of supplying on an industrial scale most of the machetes that were used in the Rwandan slaughter, and he stopped over on holiday. Less high profile war criminals were also living here, such as senior officials of Saddam Hussein’s regime—
Dr Huppert: The hon. Gentleman makes an excellent point, which is that the police are not doing a sufficient job. If one asked Hickman and Rose, which deals with such cases, it would agree that the police should be
One problem with private prosecutions is that we cannot mandate that private individuals should prosecute whomever we feel they ought to, so I would have no problem with someone taking up a private prosecution, if there is evidence but the police are not prepared to act. The hon. Gentleman’s comments support my argument that the police should do that.
Returning to the point made by the hon. Member for Northampton North, unless there is a situation where it is not possible for an arrest warrant to be granted—for example, in the case of a foreign dignitary who has diplomatic immunity coming for some talks—there is still a risk that people will face that when they come to Britain. He argued that they face a risk and will be concerned about coming here, which will continue to apply unless they know that there is a zero chance of anything happening. I am concerned, because if that is the case, we are not giving the DPP sufficient freedom and independence. If we give those people some sort of assurance, I will be worried about the role of the Attorney-General. I am sure that that is not what the Government want to do, but if that is the case, they will always have that worry. Unless people are absolutely sure that there is no evidence that could lead to a successful prosecution, they will have that concern, so I do not think the problem will be solved. Therefore, I am not persuaded that there is a need for change. However, I have heard the comments, and I accept the fact that a majority among Committee members, unless I hear otherwise, believes that there is such a need.
Several methods of change have been proposed. The original one was to say, “You cannot have any private prosecutions,” but that would be a problem. Private prosecutions of any kind are rare in this country, but it is important that they exist as a safeguard if, for some reason, the police and the CPS do not go ahead—I think that we agree that it is important to have private prosecutions as a safety net.
The next suggestion was that the decision should be made by the Attorney-General. There is a logic to that, in the sense that it would be the Attorney-General who would have to agree to continue the prosecution, but it would mean that the decision would be taken at an immediately political level. It would put an Attorney-General who wanted to be fair in a very difficult position, and it would place the law in the difficult position if the Attorney-General felt bound to do whatever was in the Government’s best interest. I am pleased that neither option has been proposed. The proposal in the Bill is the least bad step, given that I do not see the need for change. I am still concerned, as I believe that the case is unique—the DPP has said that. There are no other examples where his consent is required for an arrest, and of course, there are roles for people later on.
I will be interested to listen to the Minister’s response to the suggestion by Shami Chakrabarti from Liberty to put the DPP on notice, which I believe is the situation in a number of other countries—or a rough equivalent, as not all legal systems fit—where the DPP is told of the arrest happening and has the ability to step in. That
I want to clarify some of my earlier points. I am sure that the Minister will correct me if I have misunderstood the Government’s position, and I would be grateful if he did so. He confirmed that the Government’s opinion is that the DPP should take evidence and process it ahead of an application. If that is the Government’s position, it is welcome—again, I look to the Minister to correct me if I am wrong. We have already heard that the DPP will have a team ready. The Minister did not comment on the idea that the threshold test should be used when time is short. I would be grateful if he were to confirm that the Government intend that, where time is tight, the threshold test would be used as Mr Starmer outlined.
The Minister has commented on the powerful weight in favour of prosecuting such cases, and I thank him for that, because it is an important safeguard against over-politicisation of the process. I would like confirmation that the Government intend that the DPP should not wait too long. We must avoid the pocket veto situation, and we want a yes or a no from the DPP within the time frames available. Again, I hope that that is the Government’s intention and, if I am wrong, I hope that the Minister will correct me.
Will the Minister support a mechanism to report back on cases when the DPP does not act fast enough? That does not mean that it will be the DPP’s fault—he might have been given insufficient evidence or too much evidence, too late, that he cannot consider. However, it would be helpful to know of cases when he did not make such a decision. If he were to say, “There is no evidence here,” I would have no problem. I am interested in cases when he has not got around to looking at matters. I hope that the Minister will respond to the specific issues that I have raised. I take from his silence so far that I have understood clearly what he has said.
I am not wild about the change, because I do not see the need for it. I accept the mood of members of the Committee who feel that we should go there. It is the lowest step, and I am mollified by the approach of Mr Starmer. The change will not do much damage to our ability to prosecute such cases. I hope that it will work out. We shall have to keep an eye on whether it does work or whether it hinders our abilities.
Mr Offord: No, my hon. Friend the Member for Cambridge raised the issue rather well that I wished to intervene on, which was the selectivity of people using the current system of universal jurisdiction.
Nick Herbert: I will endeavour to answer all the questions put to me by members of the Committee. First, the hon. Member for Gedling asked how the decision would be taken. The public interest factors that the DPP will consider are a matter for him. He made it
Secondly, the hon. Member for Gedling asked me to confirm that the proposals will not weaken the ability to bring to justice people who are alleged to have committed the most serious crimes. I discussed that matter in relation to an earlier amendment, but I repeat that the clause will not remove the right of private prosecution. It does not interfere with the offences of universal jurisdiction, and private individuals will still be able to apply for a warrant. There is no intention to weaken the ability to bring criminals to justice, when they have committed very serious crimes. All we are saying is that there should be a realistic prospect of a viable prosecution taking place. The hon. Gentleman and other members of the Committee have set out why that might not happen under the current arrangements.
The hon. Gentleman asked about the time taken, a matter which we dealt with in an earlier debate to everyone’s satisfaction. I repeat that the DPP said in his evidence that he would act as quickly as he could. Diplomatic immunity would not help all concerned who might be the subject of warrants because serving Heads of State, Governments and Ministers of Foreign Affairs have immunity from criminal jurisdiction. Immunity can attach to other senior Ministers who travel by virtue of their office, but it does not extend to all Ministers, and warrants have been served against persons who are not serving Ministers, including Members of Parliaments in other countries.
The hon. Gentleman asked about the position of Israel, and he asked specifically for an assurance that this is not a measure that simply responds to the concerns of the Israeli Government. I can confirm that the question of arrest warrants for universal jurisdiction offences has been under review for a considerable period—he noted that it was under review by the previous Government—and the Government have repeatedly made clear our commitment to addressing existing anomalies. He also pointed out that Henry Kissinger was subject to an attempt to issue a warrant.
The hon. Gentleman asked about systems in other countries. It is true that other countries with legal systems similar to our own allow private prosecutions—Australia, Canada and New Zealand—but we are not aware that other countries have the same problem as we do in respect of the ability to issue warrants and the lower threshold, as a consequence, that has to be met in order for the warrant to be issued, which is the whole basis of our concern.
Finally, the hon. Gentleman asked about liaison with the Attorney-General. That was also covered in the DPP’s oral evidence to the Committee, when a number of us probed that quite carefully. The DPP and the Attorney-General will each have distinct legal functions in respect of the case, and the conventions according to which they carry them out in relation to one another are, in general terms, articulated in a protocol published in July 2009. If the Attorney-General’s consent is requested, it is likely, although not inevitable, that that request would be made after the DPP has taken his own independent decision in the way he described to the Committee. There may well be further evidence, or other relevant information or representations before the Attorney-General, which may not be available at the time that the DPP is considering the case. The DPP was at pains to point out that his office was independent and that he would take the decision independently, albeit with the normal consultation.
Vernon Coaker: Just to reiterate, this issue is extremely important. The hon. Member for Cambridge raised the point, which the Minister rightly pointed out came up in the evidence sessions, so the independence of the DPP vis-à-vis the Attorney-General is important. Clearly, people do not want the Attorney-General to take the decision to agree the arrest warrant, because of concerns about the politicisation of the process. People are seeking the reassurance that, although it is the DPP who gives consent to the arrest warrant being granted, the Attorney-General cannot influence it through discussions that may take place. The protocol and the points that the Minister has raised—and, indeed, that the DPP made in the evidence sessions—are extremely important, so that people are aware that the Government are seeking to do all they can to maintain the integrity and independence of that DPP decision.
“the code is clear, and I am clear, that the decision is the decision of the Director of Public Prosecutions, taken independently”.––[Official Report, Police Reform and Social Responsibility Public Bill Committee, 20 January 2011; c. 129, Q254.]
He also pointed out in his evidence in another place that his decision would be reviewable. He was quite clear that he would take his decisions on an independent basis. He was equally clear that it would be proper for him to consult a number of people, including the Attorney-General.
Nick Herbert: I think that my hon. Friend misunderstands the significance of the fact that a decision is reviewable. Decisions must be taken properly, and the DPP pointed out that the decision is reviewable, so if it is not taken properly it can be exposed in the courts. I appreciate that that would not necessarily deal with the timing issue, but it is one of the safeguards that ensure that decisions are taken on a proper basis.
Nick Herbert: I am not sure how helpful my hon. Friend is being—[ Interruption. ] I do so enjoy this legal advice. I am not sure whether I wish to explore any further the idea that the High Court could issue an injunction against the DPP, but I am grateful for my hon. Friend’s point that the processes need not necessarily be lengthy.
My hon. Friend the Member for Cambridge has found himself in a minority in the Committee in arguing the need for the provisions. There is a general agreement between the Government and the official Opposition, although not between all hon. Members, that there is a need to act here. The previous Government decided to take action, and we are taking a slightly different approach, the reasons for which we have explained. My hon. Friend conceded that there is a risk of grandstanding, but went on to say that under the arrangements the pressure groups could still get publicity. I disagree with him, and think that he misses the point. Those groups could perhaps still get publicity, but we are seeking to address the real fear that people cannot visit this country without running the risk of a warrant being issued against them, and that fear would not be addressed if we took no action.
Nick Herbert: I am happy to look at that proposal, but I hold that requiring both the DPP’s consent and a minimal evidential threshold is perfectly reasonable, and I do not think that a case has been made against that position.
My hon. Friend raised a couple of other issues, and I apologise if I did not address them earlier. One was that the director of Liberty, Shami Chakrabarti, suggested in evidence to the Committee that it might be better to put the DPP on notice of an application for a warrant, so that the arguments could be put to the magistrate. The DPP has not previously considered that, and I do not know what his further advice might be, but my hon. Friend will recall that his immediate response was:
“I am not sure whether it would make a considerable difference, because we would probably apply the same approach.”––[Official Report, Police Reform and Social Responsibility Public Bill Committee, 20 January 2011; c. 130, Q74.]
Finally, my hon. Friend sought confirmation on the threshold. The DPP said that he would assess the case on that basis if time were very tight, but I reiterate that the Government’s position is that that is an independent decision for him to make.
Vernon Coaker: The hon. Member for Cambridge made a point about the monitoring of decisions to ensure that the change, which, as the Minister knows, we support, does not have unintended consequences and works as we all expect it to. I know that all legislation is monitored, but it is particularly important that we respect these individual cases and the concern people have that this may lead to people escaping justice who one would want to see brought before the courts. Does the Minister have any comment on that?
Nick Herbert: The hon. Gentleman knows that the general formulation is that the Government keep all aspects of such policy under review, as we have indicated today. We recognise that fears that have been expressed about this change, but they are not properly grounded and I have sought to answer them today. However, the Government’s determination to ensure that criminals are brought to justice is undiminished, including in relation to very serious offences where universal jurisdiction applies. It is proper, therefore, for us to ensure that there is no adverse effect on that process, if Parliament agrees to implement that change; I do not believe that there will be.
Vernon Coaker: Obviously, different powers will come into play at different points, subject to their passage through Parliament, which is the case with all legislation. With respect to the debate we have had about the commencement of the universal jurisdiction part of the Bill, when does the Minister expect that to become law? Will it be immediate? Does it become law as soon as the Bill obtains Royal Assent?
Nick Herbert: The Government new clause and the Government new schedule amend relevant provisions in previous legislation to bring them in line with the changes contained in the Bill. They insert a replacement clause 99, giving effect to a replacement schedule 15. I will explain to the Committee why we need to make these changes at this stage.
As the Committee knows, we are abolishing police authorities in England and Wales, including the Metropolitan Police Authority, and replacing them with police and crime commissioners and, in London, the Mayor’s Office for Policing and Crime. As a consequence, we have to change all the references to police authorities in Acts of Parliament affecting England and Wales. There are well over 500 of these references in all. Some of them are being changed by the main provisions of the Bill, which we have already debated, but others are of less significance and fall to be dealt with as consequential amendments. Some of this work was done prior to introduction and was reflected in the original schedule 15, but there was not time prior to introduction to make all the necessary amendments. That is why we now wish to substitute a new and complete schedule 15 now, which contains all the necessary consequential amendments.
We have debated all the substantive points in relation to police and crime commissioners already, during our consideration of the main clauses of the Bill. There is nothing further in these amendments that I believe is of particular note or controversy. In the majority of cases they simply replace references to police authorities, references to police and crime commissioners, to the Mayor’s Office for Policing and Crime and to the Common Council of the City of London in its capacity as a police authority. Where it is necessary to include all three, a reference to local policing bodies is substituted. In a few cases, the reference to a police authority is replaced by a reference to the chief officer of police, because the legislation in question concerns police staff who are going to be employed by chief officers in the future.
I will draw attention to some of the additions. Paragraphs 135 and 386 of new schedule 3 deal with the Race Relations Act 1976 and the Equality Act 2010 respectively. Inserting references to police and crime commissioners and the Mayor's Office for Policing and Crime ensures that those bodies will be subject to the same equalities duties as police authorities are now. Paragraphs 332 to 336 deal with the Children Act 2004 and ensure that PCCs will have the same responsibilities to promote and safeguard the welfare of children as police authorities do now.
Vernon Coaker: Those are not minor and consequential amendments, as the Minister suggested at the outset. The fact that he has highlighted them is important, and the Committee should bear in mind what the Government are saying. Making PCCs subject to the effects of the 1976 Act and the 2010 Act is important, and child protection is an important issue that concerns people. The Minister is making a significant statement, and I thank him for it.
Nick Herbert: I am grateful to the hon. Gentleman. Those paragraphs were actually in the original schedule 15, but I mention them now to reassure the Committee that they have been retained in the new version. We discussed those matters in an earlier sitting, and we agreed that they were important. Therefore, I hope that all hon. Members will support the new clause.
Nick Herbert: New clause 12 relates to new provisions to deal with police complaints. The police complaints system is an important safeguard in holding the police to account. The focus of the system should be to allow people who are dissatisfied with the provision of a policing service to make a complaint, and for that complaint to be appropriately dealt with. The Independent Police Complaints Commission, as guardian of the system, conducted a review following four years of operational experience which found that the statutory provisions for the handling of complaints included some processes that are either no longer necessary or are unnecessarily bureaucratic, which can go against the effective handling of complaints. New clause 12 is a result of that review. The changes will make the police complaints system more effective and efficient. They will afford additional discretion to the police service to deal with low-level complaints, with the focus on dealing with the complainant’s dissatisfaction, rather than on bureaucratic processes.
Turning to the specifics of the changes, we intend to allow the IPCC greater flexibility in carrying out its functions. The minimum number of commissioners required in the IPCC will be reduced from 10 to five, and the IPCC will no longer require the consent of the Secretary of State for the delegation of its functions. The changes will remove the provision that currently excludes complaints relating to the direction and control of a force from being handled in the police complaints system. Currently those complaints are dealt with under a parallel process of informal resolution governed by Home Office guidance. We are also changing the definition of the conduct that can be the subject of a complaint, making it clear that decisions, as well as acts, omissions and statements, are included.
The changes will simplify the process for complainants by ensuring that all matters of concern about the standard of service provided by the police are addressed within a single system. Complaints of a nature set out in regulations, such as those that are vexatious or an abuse of the complaints system, will no longer have to be recorded by the police. That will remove the bureaucratic process that requires police forces to record complaints and then apply to the IPCC to dispense with them.
Low-level complaints, described by the IPCC as relating to police officers being rude and late, will be the responsibility of police forces, which will have the flexibility to determine how best to respond to the complaint, whether by investigation or by other methods such as mediation. A complainant will have a right of appeal to the chief constable. Police and crime commissioners will be able to ensure that chief constables have fulfilled their duty in the handling of such complaints.
Vernon Coaker: Do I understand that the Minister intends to introduce regulations to identify what is meant by low-level complaints? Clearly, if someone is being rude, the police should not necessarily always have to send that matter to the IPCC—that is a sensible change—but where is the line drawn?
Commissioners will have the same responsibility that police authorities have now to keep themselves informed about the handling of complaints, but they will also have an additional power to direct chief constables to take action in case of a failure to deal with a complaint appropriately. I do not wish to set up an entirely new complaints machinery in the office of the police and crime commissioner, as that would be an unwelcome duplication. However, we think that police and crime commissioners should have a role in ensuring that low-level complaints are dealt with properly.
In cases where a complaint reveals that a police officer’s performance is unsatisfactory, the IPCC will have the power to recommend and direct that unsatisfactory performance proceedings be brought against them, which is the same power that the IPCC has in respect of misconduct matters. The IPCC will retain its oversight of the whole system and direct involvement in dealing with the most serious complaints. It will continue to have the power to call in any complaint that it determines should be referred to it.
The measures will improve the handling of police complaints by removing bureaucratic processes from the system and ensuring a focus on dealing with the complainant’s concern. Committee members may note that the written submission from the Independent Police Complaints Commission says:
“The Independent Police Complaints Commission is pleased that the Government has tabled an amendment to the Bill to give effect to some of the ideas generated by our review of the police complaints system”.
I believe that the changes will deliver an improvement to the complaints system. We wanted to consult carefully with the IPCC before introducing the measures, which is why I have introduced them at this stage. I also wanted to introduce them in Committee rather than on Report. I hope that the hon. Gentleman will understand that I did so to give him a bit more time to consider before Report whether he is happy with the proposals, and perhaps to discuss them with the IPCC. I believe that they represent a sensible improvement and reflect police and crime commissioners’ new role.
Vernon Coaker: The Minister was right to put the schedule to the Committee in the way he did so that we could consider it. To be fair, I need to look at it in a lot more detail myself and to go through all the different points. I have been in touch with the IPCC, and it is satisfied with the Minister’s proposals.
There is some scope for discussion. As always, the devil is in the detail, which is why, as the Minister rightly said, the document will say in a couple of places that the provisions are subject to further regulations. The big issue is what counts as a low-level complaint. That is not easy to define, and it is even difficult in regulations; sometimes, it is a matter of professional discretion. At one level, it is easy to say that these things should not involve a huge amount of bureaucracy and time, with things going up to the IPCC and so on.
There is always scope for those involved in a complaints procedure to see what they can do to sift out vexatious or trivial complaints, or complaints that could be dealt with by someone asking, “Can’t you say sorry?” That is not to trivialise people’s complaints, but people do not always want millions of pounds of compensation or for others to be dragged through the courts and sacked; they just want someone to listen to their problem, to act on it and, if necessary, to issue an apology. Of course, there are times when that is not appropriate, and more serious action must be pursued. In some circumstances, however, that is not the case.
Will the Minister say a little more about what role he sees for the police and crime commissioner in the complaints process? Some of this will come out later, but what complaints do we envisage going to the police and crime commissioner? The chief constable is responsible for operational matters. If somebody complains about an operational matter that they feel a police officer has got wrong, we would automatically assume that that would initially be a matter for the line manager of the sergeant, inspector or superintendent involved. Obviously, if the matter is serious and it is not resolved, it will go up the tree to the chief constable. What sort of complaints does the Minister envisage going to the police and crime commissioner? Not operational matters? Some operational matters? If so, which ones? There is a lack of clarity about what the provisions mean.
At the moment, people have the right to take a complaint to the IPCC. I apologise if this is in the Bill and I have not seen it, but is the ability to make such complaints still available to an individual? Does the new schedule retain the right for somebody to take a complaint about policing in their area to the IPCC for it to consider?
The new schedule also gives the IPCC a new power to direct unsatisfactory performance procedures. Will the Minister say a little about what powers he envisages the
With those few questions, which begin to address the more detailed issues, I will leave it there. The Minister is right to try to make the system less bureaucratic and easier, but the provision relates to the fundamental rights of people to be able to complain about the police, and to have an independent body to look at that. There is a lack of clarity about the role of the PCC, and I would like the Minister to say more about that. The issue of what constitutes low level is extremely difficult.
Nick Herbert: I am grateful to the hon. Gentleman, because those are important matters, and the provisions will slightly change the system, so it is important that we all understand how it will work. I am due to write to him about several issues, and I am happy to do so before Report to set out how the new system will work for each type of complaint, so that he can see how it will work and that we can all be satisfied that it will deal with complaints in the right way.
The hon. Gentleman is right to draw attention to the issue of low-level complaints. There were 31,259 complaints recorded by police authorities in England and Wales in 2008-09, of which 41% were dealt with by local resolution. The vast majority of complaints fell into two categories—21% under incivility, impoliteness and intolerance, and 24% under other neglect or failure in duty. There should be capacity to deal with those kinds of complaints, which are important to members of the public, but are not the result of misconduct and need to be investigated at a different level. Such complaints should be dealt with by the organisation through local resolution, while ensuring that there is a right of appeal to the chief constable if the complainant is not happy.
That brings two matters into question. First, is the right to go to the IPCC still available? The answer is yes. Secondly, what is the role of the police and crime commissioner? I have considered that matter carefully, because one question I asked myself was whether the PCC should take responsibility for low-level complaints, although the IPCC would remain in charge of issues relating to misconduct. I concluded that the problem was, as I have said, that we would have to set up an entire complaints machinery in each PCC’s office, which would duplicate the complaints machinery in each force.
It is better that PCCs have oversight, as they will be under a duty to keep abreast of all of their force’s activities. They will focus primarily on the direction and control of the force, but we will give them a specific power to direct chief constables to take action on complaints, where there has been a failure to deal appropriately with a complaint. That is an additional safeguard so that, where an appeal has gone to a chief constable and someone is unhappy, there is oversight on
I think that we have arrived at a sensible balance. To some extent, the situation will evolve, depending on how far people address future complaints to the PCC rather than to the force, although that might still result in the complaint being handed to the force, and the PCC wanting to be certain that it has been appropriately dealt with. In general terms, the deputy mayor for policing in London said that when the change in arrangements was made in London, there was a big increase in the volume of correspondence received by the Mayor as that position became more visible in relation to policing. That is not the same as saying that they should have formal responsibility for a complaints procedure. We want to avoid unnecessary duplication.
I would be happy to write to the hon. Member for Gedling, setting out in a little more detail a map of procedures on different complaints that shows how we can be sure that we are not unintentionally creating any kind of lacuna or fettering the right of complaint. I do not believe that we are, and the IPCC would have told me and the hon. Gentleman if that had been the case.
Vernon Coaker: I thank the Minister for that explanation. It would be helpful if he wrote to me, and copied the letter to other Committee members, showing how the new schedule would work. It is a fact of life that schedules have a lot of the detail. There is an enabling clause, with a related schedule with pages of detail. That detail is extremely important. While everyone would want the complaints procedure to become less bureaucratic, in a democracy it is important in maintaining confidence in the police and ensuring that they are accountable in the way that we would all want—I know the Minister agrees with that. If he set out some of the issues that I have raised—dealing with vexatious complaints; what “low level” means; and some of the processes involved—that would be extremely helpful.
The Minister should consider further what the role of the PCC will be. I accept that we do not want to set up 43 mini IPCCs or whatever around the country, attached to the PCC’s office, duplicating the role of the IPCC. The Minister said that he envisages a role for the police and crime commissioner. That is fine, but people reading our proceedings and people seeking to implement the legislation need to know a little more about what that role is, particularly when it comes to matters of operational independence, which we will come to later. It is about
There were one or two specific things that I asked about things such as unsatisfactory performance procedures and how they will work, but the Minister will no doubt answer those in his letter. Some of those questions on the procedures are extremely detailed, so it would be helpful for all of us to receive a letter that sets that out.
This is going to be one of the most glorious speeches I have ever made. It will go down in the annals of history that at 10.23 am, two minutes before we adjourn, I made this speech. We will obviously continue the debate in the afternoon sitting, but this is an extremely important new clause. One of the things that the Minister may want to check with his officials is when a draft memorandum of understanding or code of practice, whatever we want to call it, will be issued on how the relationship between the PCC and the chief constable will work, because I will press him on that later. The Minister knows how important I, and people out there, think the code of practice is. It gives us a template to take this forward. It would help the Minister’s case enormously to have a draft available to discuss with people.
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