Appendix: Government response
Letter from Rt Hon Damian Green MP, Minister of State
for Policing and Criminal Justice, to Rt Hon Keith Vaz MP, Chair
of the Home Affairs Select Committee, 18 June 2013
GOVERNMENT RESPONSE TO THE HOME AFFAIRS SELECT
COMMITTEE REPORT "UNDERCOVER POLICING: INTERIM REPORT"
I am writing to provide the Government's formal response
to the Home Affairs Select Committee's report of 1 March on Undercover
Policing. I am due to appear before the Committee today to give
evidence to the Committee's inquiry into leadership and standards
in the police and would expect to answer then any questions the
Committee may have on this issue. I am sorry for the delay in
responding.
I am grateful for the Committee's acknowledgement
in paragraph 9 of the Report that "Undercover police operations
are a vital element of the fight against terrorism and serious,
organised crime." The Government agrees strongly with that
position.
The Home Secretary and I were profoundly concerned
and disappointed at the allegations made against officers of the
former Special Demonstration Squad of the Metropolitan Police.
We recognise the particular distress these allegations will have
caused to those individuals who have lost children. As the Home
Secretary announced in Parliament on 11 February, the Metropolitan
Police Commissioner, Sir Bernard Hogan-Howe, and the Chair of
the Independent Police Complaints Commission, Dame Anne Owers,
appointed Chief Constable Mick Creedon of Derbyshire Police to
take over the leadership of Operation Herne. Sir Bernard and Dame
Anne considered, and the Home Secretary and I agreed, that it
is appropriate for a senior figure from outside the Metropolitan
Police to take over the leadership of this investigation in order
to ensure that this key investigation is independent of the police
force at its centre.
In order to give further reassurance to the public
that undercover police officers are being deployed and supervised
appropriately, the Home Secretary has recently received from Her
Majesty's Chief Inspector of Constabulary his report of their
review of the implementation of HMIC's 2012 Recommendations following
the Kennedy case. We hope to be in a position to publish HMIC's
report shortly, once we have considered whether the report contains
any sensitive information that needs to be redacted.
Inevitably, undercover police officers work in extraordinary
circumstances, but this does not absolve them from the responsibility
to adhere to the highest standards of professional behaviour in
the course of their duties. We will therefore be examining the
concerns raised about undercover policing alongside our wider
programme of work to improve policing integrity, as announced
by the Home Secretary on 12 February.
In accordance with normal practice, I have set out
below the Committee's recommendations and the Government's response
to each one in turn.
1. Forces must have the flexibility to set
the parameters of undercover operations in a way that is appropriate
to each individual case, balancing risks and benefits as necessary.
However, there are some lines that police officers must not cross.
Ministers and senior officers have said that officers would not
be authorised to engage in sexual relationships while undercover,
but could not rule out the possibility of such relationships occurring
anyway. We do not believe that officers should enter into intimate,
physical sexual relationships while using their false identities
undercover without clear, prior authorisation, which should only
be given in the most exceptional circumstances. In particular,
it is unacceptable that a child should be brought into the world
as a result of such a relationship and this must never be allowed
to happen again. We recommend that future guidance on undercover
operations should make this clear beyond doubt. (Paragraph 14)
2. We make no comments on the merits of the
High Court case, but it demonstrates that there is an unsatisfactory
degree of ambiguity surrounding these cases. In matters which
concern the right of the state to intrude so extensively and intimately
into the lives of citizens, we believe that the current legal
framework is ambiguous to such an extent that it fails adequately
to safeguard the fundamental rights of the individuals affected.
We believe that there is a compelling case for a fundamental review
of the legislative framework governing undercover policing, including
the Regulation of Investigatory Powers Act 2000, in the light
of the lessons learned from these cases. This will require great
care and will take some time. We recommend that the Government
commit to the publication of a Green Paper on the regulation of
investigatory powers before the end of this Parliament, with a
view to publishing draft legislation in the Session after the
next general election. (Paragraph 15)
Whilst civil cases involving these issues remain
before the courts and the Investigatory Powers Tribunal and a
criminal investigation into these allegations is ongoing, it would
be inappropriate for the Government to comment on the detail of
this recommendation. However, the Government rejects the committee's
assertion that RIPA fails to safeguard human rights. As was made
clear during the passage through Parliament of the Regulation
of Investigatory Powers Act 2000, the Act provides a clear basis
for investigatory powers to be used lawfully and in accordance
with human rights. In particular, authorising officers must be
satisfied that the use of an undercover officer is necessary and
proportionate; RIPA also requires that undercover officers are
properly managed and supervised. It is clearly important that
these tests are applied correctly and the requirements are adhered
to on a case by case basis; the statutory Codes of Practice provide
public authorities with additional guidance. The Government does
not consider, therefore, that the cases which have recently come
to light necessarily demonstrate that a fundamental review of
the legislative framework is necessary.
3. Standards in undercover operations are
jeopardised by lack of clear lines of responsibility between ACPO,
the NPOIU and the different forces and units involved. Discrepancies
in training, tactics and review between different undercover units
further muddy the waters and risk ambiguity in what is acceptable
conduct for officers working undercover. In the new landscape
of policing, standards in undercover policing will transfer to
the College of Policing. While it is right that the College should
draw on the expertise of chief officers, its overall responsibility
must be unequivocal and it must create a coherent set of operational
instructions that will apply equally to all units conducting undercover
operations, against which officers and forces can be held to account.
We do not think it is acceptable for ACPO, a private company,
to play any continuing role in this. (Paragraph 19)
The issues around the management of the National
Public Order Intelligence Unit (NPOIU) by ACPO were raised in
last year's report by Her Majesty's Inspectorate of Constabulary,
following which the management of the NPOIU moved from ACPO to
the Metropolitan Police Service, where it was absorbed into the
National Domestic Extremism and Disorder Intelligence Unit. As
such, its work is subject to scrutiny by the Mayor's Office for
Policing and Crime and the London Assembly's Police and Crime
Committee in the same way as the rest of the MPS.
The Government has made clear consistently that ACPO
as a private company should have no role in operational policing,
although its members, as senior police officers with extensive
experience of operational issues, clearly have a key role to play.
The Government established the College of Policing precisely to
address the issues of standard setting and accountability to which
the Committee refer; that is also why the work of the former ACPO
Business Areas has been moved into the College. The College produces
Approved Professional Practice (APP) in a range of operational
areas, including undercover policing, which must receive the endorsement
of the College's Professional Committee before being adopted by
the police.
4. The practice of "resurrecting"
dead children as cover identities for undercover police officers
was not only ghoulish and disrespectful, it could potentially
have placed bereaved families in real danger of retaliation. The
families who have been affected by this deserve an explanation
and a full and unambiguous apology from the forces concerned.
We would also welcome a clear statement from the Home Secretary
that this practice will never be followed in future. (Paragraph
22)
5. For the sake of families whose dead infants'
identities may have been used as legends, it is imperative that
Operation Herne is expedited with all possible haste. It is shocking
that the practice of using deceased infants' names was apparently
a surprise to senior officers and it is vital that the investigation
establish quickly how high up the chain of command this practice
was sanctioned. Once the identity of the senior responsible leaders
has been established, the matter should be referred directly to
the IPCC, which should then investigate the matter itself, rather
than sign off on a "supervised" inquiry. (Paragraph
26)
6. DAC Gallan told us that she first knew
of the use of dead children's identities in September 2012, but
the parents of that dead child have still not been informed. We
cannot understand what is taking so long. Families need to hear
the truth and they must receive an apology. Once families have
been identified they should be notified immediately. We would
expect the investigation to be concluded by the end of 2013 at
the latest. Although we welcome the transfer of responsibility
for the Operation to a leader from outside the Metropolitan Police,
we are concerned that the appointment of a serving chief constable
may not be conducive to a swift conclusion. We have written to
Chief Constable Creedon for clarity about how much of his time
he will be able to commit to this important work. Responsibility
for this matter has already passed from the MPS to local forces,
from DAC Gallan to chief constable Creedon and, we trust, from
ACPO to the College. Without a clear line of accountability, the
risks of malpractice are multiplied. We will return to the question
of leadership of internal inquiries and undercover policing standards
in our work on leadership and standards in the police. (Paragraph
27)
In her evidence to the Committee on 5 February, Deputy
Assistant Commissioner Gallan made clear that this practice has
ceased and that it could not be authorised under RIPA, as the
degree of intrusion into the lives of the innocent and vulnerable
families of deceased children could not be justified. DAC Gallan
is uniquely placed to make such a statement, having served recently
as both the head of Operation Herne and as Chair of the National
Undercover Working Group. The Government agrees with DAC Gallan's
position that such practices could not be authorised under RIPA.
The IPCC is independent of the police, the Government
and Parliament. They have come to the conclusion that the most
appropriate mode of investigation under the current arrangements
is for a police investigation, led by Chief Constable Creedon,
under their supervision. It would not be appropriate for Ministers
or Parliament to interfere in the IPCC's decision-making processes.
It is right that Operation Herne be concluded as
swiftly as possible, and that one of the key tasks of the investigation
is to ascertain the truth of the recent allegations and, if they
are made out, to inform sensitively the families of those deceased
children. It is equally important that the investigation be conducted
thoroughly so that criminal or disciplinary proceedings can be
brought against any individuals found to be culpable. Chief Constable
Creedon is an experienced leader of complex investigations and
has in place an experienced team to conduct and manage the investigation.
While lines of accountability do seem to have been
less than clear in the past, the Government does not accept that
is still the case; with the election of Police and Crime Commissioners
and the move of the NPOIU from ACPO into the Metropolitan Police,
the lines of accountability are now far clearer than they were
at the time of the alleged misconduct. I understand you have been
in correspondence with Chief Constable Creedon about the progress
of his investigation and I hope he has been able to reassure you
on this point.
7. We reiterate that in this kind of serious
standards case the IPCC ought to run an independent investigation.
This would be in keeping with the Home Secretary's statement to
the House on 12 February 2013 that the IPCC would investigate
all serious and sensitive allegations, in line with our recommendations.
Funds for such an investigation should be provided by the professional
standards department of the Metropolitan Police. In lieu of that
independence, we will be asking to be updated on the progress
of Operation Herne every three months. This must include the number
and nature of files still to review, costs, staffing, disciplinary
proceedings, arrests made, and each time a family is identified
and informed. We will publish this information on our website.
(Paragraph 28)
While the Government recognises that this recommendation
is in keeping with the intention set out in the Home Secretary's
statement of 12th February,
the detailed implementation of the new ways of working is yet
to be completed. Current investigations continue under the existing
arrangements.
The Government would also ask the Committee to liaise
closely with the IPCC in respect of its proposal to ask for and
publish regular status updates on Operation Herne. That investigation
is now under the direction and control of Chief Constable Mick
Creedon rather than the Metropolitan Police Commissioner and continues
to be supervised by the IPCC, who are the body responsible in
law for overseeing the operation of the police complaints system.
The IPCC must be allowed to discharge its functions independently,
and the results of the investigation may well be put before the
criminal courts in due course. The Government urges the Committee
strongly not to request or publish any information that might
prejudice any subsequent criminal or disciplinary proceedings.
8. It might not be possible to conduct a proper
review of the current legislation until the current legal position
has been clarified by the courts, which is why we have suggested
a long timescale for new legislation to be prepared. However,
it is important that the Home Office start preparatory work now
in order to ensure that there is no further, unnecessary delay.
(Paragraph 29)
As set out in response to recommendation 2 above,
the Government considers that the Regulation of Investigatory
Powers Act 2000 already provides the basis for investigatory
powers to be used lawfully and in accordance with human rights.
Nonetheless, the Government takes
these matters very seriously and keep them
constantly under review. The Government
is already implementing HMIC's 2012
recommendations on the authorisation
of long term police undercover officers under
RIPA and the Home Secretary has
commissioned HMIC to look at the way the police
have implemented the 2012 HMIC
recommendations.
While the Government does not accept at this stage
the committee's suggestion that RIPA requires fundamental review,
we will of course take careful note of any evidence in this area
that is identified, whether by HMIC, in the litigation currently
underway, or as part of Operation Herne.
9. It cannot be sufficiently emphasised that
using the identities of dead children was not only abhorrent,
but reflects badly on the police. It must never occur again. (Paragraph
30)
As set out above, the Home Secretary and I were as
astonished and disappointed as the Committee to learn of these
allegations. The Government has made clear in response to recommendations
4-6 above that this practice could not be authorised today, as
the collateral intrusion into the lives of the families of the
deceased children could not be justified under RIPA. On behalf
of the police as a whole, DAC Gallan was also categorical in her
answers to you on this point.
I hope that this Government response provides the
Committee with an appropriate level of reassurance on the way
undercover police officers are deployed and managed today. I look
forward to discussing undercover policing with the Committee tomorrow.
Rt Hon Damian Green MP
June 2013
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