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Lord Dixon-Smith: We have had a number of interesting debates around this issue. It is a matter of fact that codes of practice are seen increasingly in administration. But as a matter of principle, because they are legislation by the back door—they do not get direct parliamentary supervision in the sense that regulations do—we ought to be extremely wary as to how they are handled.
It was for that reason that I tabled Amendment No. 15. At the moment we are in a situation where the question of whether or not this clause is satisfactory is what I can only describe as "pending". I suppose we shall have to be satisfied with that. I shall therefore curb my impatience and withdraw my objection.
6.30 p.m.
Lord Dholakia: I support the noble Lord, Lord Dixon-Smith. But there are two matters of concern to these Benches. The first relates to the whole process of consultation. The Minister has made it fairly clear which parties will be involved in the process. We are asking the Minister whether those bodies could be included on the face of the Bill as part of the consultation process so that there will be no confusion about how the code is arrived at.
No one is taking away the central role of the Central Police Training and Development Authority. It will obviously be consulted on the matter. But the CPTDA is very much a strategic body. Is this a suitable role for it? Will it not simply become bogged down in considering, line by line, draft regulations and codes?
The other matter of concern is the matter which we have just discussed. I refer the Minister again to the report of the Select Committee on Delegated Powers and Regulatory Reform. Paragraph 3 on page 7 states:
- "The power is likely to be used in areas of operational policing where particular concerns have arisen (for example, investigation of murder or paedophiles)".
A further matter concerns me. The noble Lord, Lord Waddington, made an important point that rather than certain information being made public, there must be other ways in which it could be held. Perhaps I may give an example. If there was a death because of the use of firearms by the police, and the police followed the code of practice, would the court of law be able to ask for that code of practice to be produced? If it is produced, should it not become a public document? There is confusion and there is interference in policing operational matters. It would be helpful if the Minister could clarify some of those points before the Report stage, because I am sure that we shall all return at that stage with further amendments on the matter.
Lord Phillips of Sudbury: I support this proposal. In this regard there has been no concrete reason advanced for increasing the powers of the Home Secretary. We have not had one single practical example of where it is necessary to take these very considerable powers to the Home Secretary. Frankly, unless there are convincing examples of where policing is—as we sit here—being impeded and made less effective because of the absence of this power to impose a code of conduct, then I, for one, hope that these Benches will vote against it when the time comes. The Minister has made clear his own support of what is called the "tripartite arrangement". As we heard at Second Reading, it is a crucially important balancing of powers between the state, localities and chiefs of police. Any substantial interference with it must be justified, not in abstract, but in practical terms.
I add that surely in this House—I do not suppose that it is any different down the way—we have abundant examples of a massive accretion of secondary legislation, and now codes, which all have the best intentions on earth, but which seem to end up very often—for example, in health and education—choking the very organs that they seek to vivify and make more effective.
I am a sceptic about the power that is being taken by this clause. I think that there will be a terrible tendency on the part of a Home Secretary who is being berated by an often ignorant press to say, "Well, I am about to
issue a new code of conduct". As has been mentioned by Members of the Committee, this is not a code of conduct that is merely advisory, it has legal statutory effect. Chief constables will have to have regard to it. Without prolonging what is a profoundly important constitutional issue, I should like to support strongly the Question that this part of the Bill is removed.
Lord Mayhew of Twysden: Perhaps I may add a brief contribution. So far we have been discussing this clause only in the context of its application to chief constables. The Bill makes it clear that it applies also to the directors-general of the National Criminal Intelligence Service and of the National Crime Squad. One only has to mention that to see how particular and specific this code could be in operational matters—as the Minister has confirmed, it will amount to more than guidance—and how close those codes could be to really specific operational matters. That gives added force in my mind to the arguments that have been pressed on the noble Lord.
Lord Rooker: I probably must take some blame in respect of a misunderstanding by Members of the Committee on the question of operational matters as opposed to operational policing. I am not playing with words. As I have said, the codes will cover aspects of operational policing. We have not made any secret about that. They will help to spread good practice; for example, in tackling robbery and street crime and in the management of the force, perhaps with an effective occupational health system. That is operational policing. That is not interference with how chief officers put their own policies into practice in terms of operational decisions. Therefore, there is a distinction.
I shall give one example. On 7th February, Sir David Phillips from ACPO, gave evidence to the Home Affairs Select Committee in another place. Sir David had voiced some concerns about how the codes would be constructed. In terms of the construction of the codes, I have made it absolutely clear on three groups of amendments how operational police officers—ACPO—will be involved, through the new board, in the process from beginning to end. In terms of how the codes are constructed, we meet the concerns 100 per cent. Sir David said to the committee:
- "I can see the virtue in there being codes of practice around, for example, intelligence issues because if we are to have an intelligence system we have got to be able to share information. That means that it has to be collected against the same standards of probity and against the same criteria for recording everywhere, so you need to have a common system. Having the Home Secretary's approval of a code seems to me to be a sound idea".
Lord Elton: What the noble Lord quoted was approval by the Secretary of State for a code of practice. This is a code of practice that the Secretary of State himself would have generated. Surely, that is not the same thing at all.
Lord Rooker: No; I do not accept that. It will be put together and drafted by a professional body of frontline officers, with a board that includes independents and members of police authorities as well as serving police officers.
Lord Dixon-Smith: Perhaps I may indulge in a slight diversion for a moment. I am grateful to the noble Lord, Lord Dholakia, for reopening the discussion when I was about to close it. In opposing the Question that Clause 2 stand part of the Bill, I neglected to tell the Committee that Amendment No. 70 is also in the group. The reason that it is grouped with this particular clause stand part debate is simple: it is consequential on it. If we were to reject Clause 2, Amendment No. 70 would automatically come into play. I apologise to the Committee for not previously mentioning that.
We could continue the debate for some time.
The difficulty that we all have is that if the codes of practice are not put before Parliament, we will not know whether they are interfering with operational matters. Parliament is entitled to know that. The point made by my noble friend Lord Elton is important. There is a distinction between codes of practice drafted at the request of the Home Secretary because he thinks that there is a particular problem and codes of practice developed in the operational field by practitioners, in which, in effect, they are sharing best practice to ensure that the whole policing system works in the best possible operational way across the country. That distinction is valid.
If we wish, we can continue nit-picking around that subject for some time but the Minister has given us an assurance that he will consider the matter. Our little secondary debate has reinforced the need for him to do so. I hope that, when we return to the matter, we will hear some second or even third thoughts.
Clause 3 [Powers to require inspection and report]:
Lord Dixon-Smith moved Amendment No. 17:
- Page 2, line 40, after "time" insert ", if he has reason to believe that the inspectors of constabulary have failed to comply with their obligations under this section in that respect,"
The noble Lord said: The amendment concerns what is a small matter in some ways but important in others. Clause 3 states:
- "The Secretary of State may at any time require the inspectors of constabulary to carry out an inspection under this section of . . . a police force . . . the National Crime Squad",
The purpose of the amendment is to constrain the Secretary of State's power to where he feels that the inspectors are not properly fulfilling their duty. That is not an unreasonable constraint. I should not say this, but I have in mind the words of a former chief fire officer who was probably one of the best fire officers
in the country. His attitude to inspectors was that they saw what he wanted them to see, even if they arrived on the doorstep with no notice.We are concerned not with what a reasonable Secretary of State would do but the power that the wording of the clause may give to someone who is unreasonable if the Bill remains on the statute book for a considerable time, as one hopes that it will. None of us can predict the possible shifts in political opinion in that event. Too often in my experience Parliament has not given sufficient consideration to the future in the drafting of legislation. Sometimes the subsequent consequences—several years later—have been unfortunate and painful. We have tabled the amendment because we want to avoid that. I beg to move.
6.45 p.m.
Lord Borrie: May I speak in opposition to the amendment? I notice that the noble Lord, Lord Dixon-Smith, has, with others, given notice of his intention to oppose the Question that Clause 3 stand part of the Bill. I ask the noble Lord's forgiveness for anticipating him, but presumably he will then deploy arguments that there may be no circumstances in which the Secretary of State would be justified in requiring inspectors to carry out an inspection.
But the logic of the amendment is that the noble Lord accepts that there may be some circumstances in which it would be justified for the Home Secretary to require inspectors to carry out an inspection. The noble Lord wants to hobble the Home Secretary, if I may put it that way, by providing that he would need to have,
- "reason to believe that the inspectors . . . have failed to comply with their obligations".
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