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Lord Bassam of Brighton: My Lords, in our view this clause removes an anomaly which would bring the regulations on police conduct into line with those in criminal proceedings where the new style of caution was introduced in the Criminal Justice and Public Order Act 1994.

It is perhaps worth reciting some history on the matter since it is an issue which has been around for a number of years. The Home Affairs Select Committee,

9 May 2001 : Column 1047

in its report in March 1998 on police disciplinary and complaints procedures, proposed this change (at paragraph 109 of Volume 1 of the report of the proceedings of the committee on 15th January 1998) on the basis that it would go some way towards addressing quite proper concerns over the use of "no comment" interviews in police disciplinary investigations.

At present, if it is decided to instigate proceedings against an officer for a possible breach of the discipline code, now called the conduct code, the accused officer will be notified and cautioned along the lines of the traditional criminal caution. This stated:

    "You do not have to say anything unless you wish to do so, but anything you do say may be given in evidence".

The Criminal Justice and Public Order Act 1994 modified this caution and the right to silence in an important way in that although it would be open to a defendant to say nothing, adverse inferences could be drawn where the defendant chose to do so in certain circumstances. This change was not accompanied by an equivalent change in the caution in disciplinary proceedings because it was originally thought that Section 50 of the Police Act 1996 would enable this change to be made by regulations. It was subsequently decided that the change should be made by primary legislation.

The modified caution states:

    "You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you say may be given in evidence".

The proposal to change the caution was agreed by all members of the Home Affairs Select Committee and was discussed from 1998 onwards in the Police Personnel Procedures Working Group which is a working group of the Police Advisory Board. There was universal agreement from all the police staff associations, including the Police Federation, the Police Complaints Authority, the Association of Police Authorities and Her Majesty's Inspectorate of Constabulary.

The Police Federation now appears to have changed its stance. It had previously said that a police officer should be in no better and no worse a position than any other member of the public who is being investigated. The Police Superintendents' Association also believed that it was wrong to allow an unfettered right of silence to police officers subject to a disciplinary inquiry. Paragraph 4.1 of the report on the right of silence said:

    "In view of the recent change to the general criminal law, we believe it is wrong that police officers who are subject to a disciplinary inquiry have an unfettered right of silence".

Let us consider what happens in other uniformed services. The Military Police use the same wording as in the modified caution. In fire service disciplinary proceedings, when a member of a fire brigade is given the opportunity to explain his conduct to an investigating officer he is informed that he is not obliged to say anything concerning the matter and he is warned that any explanation he makes may be used in subsequent disciplinary proceedings. The Prison

9 May 2001 : Column 1048

Service does not use cautions, but a form of written words when staff are investigated and when they are charged.

The police force is a vital public service in which the highest standards of conduct and behaviour are necessary to maintain public confidence. If a police officer's conduct is called into question and he or she refuses point blank to explain, is it not reasonable to be allowed to draw inferences from that silence?

We are seeking the implementation of what was agreed three years ago. In other fields of employment, inferences can be drawn from silence in disciplinary proceedings. In this day and age, we believe that it is right that the police disciplinary proceedings should reflect best practice elsewhere.

Two lines of argument were advanced in the clause stand part debate in yesterday's Committee stage. One was that not enough detailed consideration had been given. The noble Lord, Lord McNally, used the phrase "on the bounce"--a phrase that he has repeated today. The other argument was that the difference between criminal conduct and misconduct was important and it was felt that the police were one of the most supervised occupations in the country, as the noble Lord, Lord Cope, said again this afternoon.

I do not find either argument compelling. No strong or powerful argument has been made to exempt the police from a practice that is becoming more widespread in disciplinary proceedings and is the standard in criminal proceedings. Concern was expressed that we should be extremely careful about the conduct of police disciplinary proceedings. In my experience, police disciplinary investigations and proceedings accord to the highest standards and are properly conducted and thoroughly carried out.

My understanding is that the former Home Secretary, Michael Howard, supported the change back in 1994. In 1996, Conservatives in government clearly anticipated that it would be put into effect by regulation. The Conservatives supported the move as recently as 1998, when the Home Affairs Committee report was supported by all parties. I find it most strange that they have changed their position. I am not convinced by the arguments that have been put forward. We have demonstrated our care and concern over the issue. We have consulted carefully through the proper formal arrangements. There has historically been widespread agreement and support for the change. That is why it was put into the Bill.

I hope that the Conservatives and the Liberal Democrats will not press the amendment.

Lord Cope of Berkeley: My Lords, the Minister and I have summarised the arguments that we made last night. It is time to seek the opinion of the House.

4.15 p.m.

On Question, Whether the said amendment (No. 25) shall be agreed to?

Their Lordships divided: Contents, 140; Not-Contents, 116.

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Division No. 2


Addington, L.
Alton of Liverpool, L.
Anelay of St Johns, B.
Arran, E.
Astor, V.
Astor of Hever, L.
Attlee, E.
Avebury, L.
Baker of Dorking, L.
Beaumont of Whitley, L.
Blaker, L.
Boardman, L.
Bowness, L.
Brabazon of Tara, L.
Bradshaw, L.
Bramall, L.
Brougham and Vaux, L.
Burnham, L. [Teller]
Buscombe, B.
Byford, B.
Campbell of Alloway, L.
Campbell of Croy, L.
Carnegy of Lour, B.
Carr of Hadley, L.
Carrington, L.
Clark of Kempston, L.
Clement-Jones, L.
Coe, L.
Colwyn, L.
Cope of Berkeley, L.
Courtown, E.
Craigavon, V.
Cranborne, V.
Crathorne, L.
Crickhowell, L.
Croham, L.
Dean of Harptree, L.
Denham, L.
Dholakia, L.
Dixon-Smith, L.
Dundee, E.
Elles, B.
Elliott of Morpeth, L.
Elton, L.
Ezra, L.
Falkland, V.
Ferrers, E.
Flather, B.
Fookes, B.
Fraser of Carmyllie, L.
Freeman, L.
Gardner of Parkes, B.
Geddes, L.
Geraint, L.
Glentoran, L.
Goodhart, L.
Goschen, V.
Hamwee, B.
Hanson, L.
Harris of Richmond, B.
Henley, L. [Teller]
Higgins, L.
Hooper, B.
Hooson, L.
Howe, E.
Howell of Guildford, L.
Jacobs, L.
Jenkin of Roding, L.
Kimball, L.
Kirkham, L.
Knight of Collingtree, B.
Laird, L.
Lamont of Lerwick, L.
Lawson of Blaby, L.
Lindsay, E.
Liverpool, E.
Lucas, L.
Luke, L.
McColl of Dulwich, L.
Mackie of Benshie, L.
McNally, L.
Maddock, B.
Mar and Kellie, E.
Marlesford, L.
Mayhew of Twysden, L.
Miller of Chilthorne Domer, B.
Miller of Hendon, B.
Mowbray and Stourton, L.
Moynihan, L.
Murton of Lindisfarne, L.
Newby, L.
Noakes, B.
Northesk, E.
Northover, B.
Norton of Louth, L.
Oakeshott of Seagrove Bay, L.
Onslow, E.
Oxfuird, V.
Palmer, L.
Park of Monmouth, B.
Parkinson, L.
Patten, L.
Pearson of Rannoch, L.
Phillips of Sudbury, L.
Plummer of St. Marylebone, L.
Rawlings, B.
Reay, L.
Redesdale, L.
Renton, L.
Roberts of Conwy, L.
Rogan, L.
Roper, L.
Russell, E.
St John of Fawsley, L.
Saltoun of Abernethy, Ly.
Sandberg, L.
Seccombe, B.
Selsdon, L.
Sharp of Guildford, B.
Sharples, B.
Shutt of Greetland, L.
Simon of Glaisdale, L.
Skelmersdale, L.
Smith of Clifton, L.
Soulsby of Swaffham Prior, L.
Stewartby, L.
Strathclyde, L.
Taverne, L.
Taylor of Warwick, L.
Tebbit, L.
Thomas of Gresford, L.
Thomas of Gwydir, L.
Thomas of Walliswood, B.
Thomson of Monifieth, L.
Tope, L.
Vivian, L.
Waddington, L.
Walmsley, B.
Wilcox, B.
Young, B.


Ackner, L.
Acton, L.
Ahmed, L.
Allenby of Megiddo, V.
Andrews, B.
Bach, L.
Bassam of Brighton, L.
Berkeley, L.
Bernstein of Craigweil, L.
Billingham, B.
Blackstone, B.
Blease, L.
Brennan, L.
Brett, L.
Brooke of Alverthorpe, L.
Brookman, L.
Bruce of Donington, L.
Burlison, L.
Carter, L. [Teller]
Christopher, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Cohen of Pimlico, B.
Colville of Culross, V.
Craig of Radley, L.
Crawley, B.
David, B.
Davies of Coity, L.
Davies of Oldham, L.
Dean of Thornton-le-Fylde, B.
Dixon, L.
Elder, L.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Evans of Watford, L.
Falconer of Thoroton, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Gale, B.
Gibson of Market Rasen, B.
Gilbert, L.
Gladwin of Clee, L.
Gordon of Strathblane, L.
Goudie, B.
Gould of Potternewton, B.
Graham of Edmonton, L.
Gregson, L.
Grenfell, L.
Hardy of Wath, L.
Harris of Haringey, L.
Harrison, L.
Haskel, L.
Hayman, B.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Howells of St. Davids, B.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Irvine of Lairg, L. (Lord Chancellor)
Islwyn, L.
Janner of Braunstone, L.
Jay of Paddington, B. (Lord Privy Seal)
Jeger, B.
Judd, L.
Kirkhill, L.
Lea of Crondall, L.
Lipsey, L.
Lockwood, B.
Lofthouse of Pontefract, L.
Macdonald of Tradeston, L.
McIntosh of Haringey, L. [Teller]
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
Marsh, L.
Mason of Barnsley, L.
Merlyn-Rees, L.
Mishcon, L.
Mitchell, L.
Molloy, L.
Morris of Manchester, L.
Nicol, B.
Orme, L.
Parekh, L.
Patel, L.
Patel of Blackburn, L.
Ponsonby of Shulbrede, L.
Prys-Davies, L.
Ramsay of Cartvale, B.
Rendell of Babergh, B.
Richard, L.
Sainsbury of Turville, L.
Shore of Stepney, L.
Simon, V.
Simon of Highbury, L.
Smith of Gilmorehill, B.
Stoddart of Swindon, L.
Strabolgi, L.
Strange, B.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Tenby, V.
Tomlinson, L.
Turnberg, L.
Turner of Camden, B.
Uddin, B.
Warwick of Undercliffe, B.
Weatherill, L.
Whitaker, B.
Whitty, L.
Wilkins, B.
Williams of Elvel, L.
Williams of Mostyn, L.
Williamson of Horton, L.
Woolmer of Leeds, L.

Resolved in the affirmative, and amendment agreed to accordingly.

9 May 2001 : Column 1050

4.25 p.m.

Clause 144 [Short title, commencement and extent]:

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