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Police Reform Bill [HL]

8.26 p.m.

House again in Committee.

Clause 10 [General functions of the Commission]:

Viscount Bridgeman moved Amendment No. 148:

Page 9, line 1, leave out sub-paragraph (ii).

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The noble Viscount said: This is very much a probing amendment. The clause provides for the various duties of the commission, including the duty to,

"protect persons who report such misconduct from victimisation".

It is unclear how that is supposed to be achieved. In the first instance, it must be noted that not all complaints will be dealt with by the commission; some, no doubt, will be dealt with under the informal resolution procedure. Such complaints will, therefore, not come to the attention of the commission. Even were a complaint to come to the attention of the commission, how is it to achieve that end?

If a police officer wishes to victimise an individual, a tempting way would be to investigate, prosecute or arrest. If a prosecution is instigated maliciously and fails, there is already a civil remedy in the form of a suit for malicious prosecution. There are civil remedies for wrongful arrest. In order to prevent such instances, the commission is proposing to order a police officer or police force not to investigate allegations of criminal wrongdoing. Will a criminal or suspected criminal be able to avoid detection by making a complaint and complaining of victimisation? That may be prone to abuse. I beg to move.

Lord Borrie: It may be convenient if I speak to Amendments Nos. 311 and 340, which are grouped with the noble Viscount's amendment. Those amendments are in my name and that of the noble Lord, Lord Phillips of Sudbury.

At Second Reading, I recalled that I had had the privilege of piloting through the House what became the Public Interest Disclosure Act 1998. It had been piloted through the House of Commons by Richard Shepherd, the honourable Member for Aldridge-Brownhills, and was, to that extent, a bi-partisan effort. That Act gives invaluable protection to employees of all kinds who blow the whistle on wrongdoing in their place of work and are then dismissed, or victimised in some other way.

During the passage of that Bill, the Government said that the police had to be excluded from its provisions because they were not technically—and are not, technically—employees. But the relevant Minister of the day, Mr Ian McCartney, gave "an absolute commitment" that police officers would be afforded equivalent protection because they should be given equivalent protection.

There are some provisions in the current police regulations but I submit that they are not equivalent to the protections in the Public Interest Disclosure Act because there is no right of redress and compensation for a victimised police officer who has reported wrongdoing in the force.

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The problem is that a police officer who knows of wrongdoing among colleagues has little confidence that he can report it in safety. As Her Majesty's Inspectorate of Constabulary stated in 1999:

"There is a strong feeling among officers and support staff that retribution, subtle or direct, would result from making complaints against colleagues. There is a perception that no one commends such officers for demonstrating moral courage".

No one should doubt the value of protecting whistleblowers if in the public interest we want effectively to combat police wrongdoing. The Police Complaints Authority does not doubt it. A member of that authority said in 2000 that a whistleblower policeman found himself ostracised for reporting a fellow officer for corruption. That member of the authority said:

"He was a good officer. He became an outcast, vilified by his fellow officers and left largely unsupported".

He went on to say—and I believe him—

"He seriously considered suicide. He had been badly let down by the force".

There is presently a contradiction between the position of civilian workers and police officers, and that is likely to increase under Part 4 of the Bill.

Clause 10(4), which is now in front of us, puts a duty on the independent police complaints commission to facilitate the reporting of misconduct and to protect persons who report such misconduct from victimisation. The noble Viscount, Lord Bridgeman, queried the latter part when dealing with his amendment.

However, Clause 10(4) does not provide redress to a victimised whistleblower, yet to my mind redress is not only justified in itself, but it is a stronger incentive to policemen to report wrongdoing than simply some "arrangements"—I use the word in Clause 10(4)—whatever those "arrangements" of the independent police complaints commission are.

The Public Interest Disclosure Act provides a framework for responsible and carefully-thought-out whistleblowing—not casual blasting of other people without evidence—in which the strongest protection is available to those who raise their concerns first with their employer. Clause 10 provides only for arrangements for concerns of this sort to be raised with the IPCC. Although the complaints commission can issue guidance stating that whistleblowers should not be victimised—that is what Clause 10(4) says—that would do no more than existing guidance in police regulations to the effect that victimisation of a whistleblower is a disciplinary offence.

I fear that the Home Office may believe that Clause 10 is a substitute for full protection to police whistleblowers under the Public Interest Disclosure Act. However, unfortunately Clause 10 does not to my mind give the "equivalent" protection which Mr Ian McCartney promised us all in 1998 and it will not effectively ensure the exposure of wrongdoing, which is what the public interest requires.

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8.30 p.m.

Lord Dholakia: I support what was said by the noble Lord, Lord Borrie. I confess to being unclear about the intention behind the amendment moved by the noble Viscount, Lord Bridgeman. In our view, it is entirely appropriate that the commission should be required to safeguard those who report misconduct and they should not suffer victimisation.

Perhaps I may cite two examples which may be of interest to the Committee. When I worked at the Police Complaints Authority, the complaints we found easy to substantiate were those which genuinely came from police officers. Through "whistleblowing", they were able to report on some of the misconduct, particularly in relation to sexual harassment of women constables.

Similarly, in the Race Relations Act, "discrimination" is defined as relating to someone who may be victimised before that individual has complained about a particular course of action. It is right and proper that if people make such complaints, or report such incidents, adequate protection is available to them. Therefore, it is right and proper that we do not support the amendment tabled by the noble Viscount, Lord Bridgeman, but that we support what has been proposed by the noble Lord, Lord Borrie.

Lord Harris of Haringey: I, too, support the comments made by my noble friend Lord Borrie. There is a deficiency in the current arrangements and we must ensure that we give officers the security to question and, where necessary, challenge or report wrongdoing internally. I am not clear that the present arrangements enable that to happen.

If that is possible, it is part of a process of ensuring that police forces can deter and detect serious wrongdoing. That is why it is important that we assist the IPCC to fulfil its functions, particularly relating to conduct matters under Clause 10(4).

Her Majesty's Inspectorate has commented that:

"Policing by consent relies on the overwhelming majority of the public . . . trusting and respecting individual officers and staff; the reality is this reputation can be seriously harmed if only a few fail".

The concern is that at present, and under the regime which would be allowed under the Bill, an honest officer victimised for reporting wrongdoing will be able to bring only an internal grievance. That lack of a distinct remedy or right of independent redress is an overwhelming obstacle to the present regime. According to HMI's report, Police Integrity: Securing and Maintaining Public Confidence, officers believe that if they complain they run the risk of being victimised for making the complaint. The report states:

"The Inspection found grievance procedures were widely held to be ineffective, with a misunderstanding of what they might achieve . . . in most forces, for a variety of reasons, there was little or no confidence in the system".

I thought that the noble Lord, Lord Dholakia, might refer to the report of the inquiry into the case of Gurpal Virdi, with which he was associated, in which there was much consideration by the panel of inquiry into the operation of internal grievance procedures.

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There was a general feeling that they were unsatisfactory and were not serving the purposes for which they were intended.

The provision in regulations and guidance that supervisors and managers should ensure that police whistleblowers are not victimised is clearly insufficient. I believe that unless the amendment tabled by my noble friend Lord Borrie is passed, the Bill will do little to rectify the problem.

The Bill clearly places a duty on the IPCC to secure arrangements that facilitate the reporting of misconduct by police officers and to protect them from victimisation, but it is difficult to see how the IPCC can be expected to fulfil those duties. Although the IPCC may issue guidance, give advice and make recommendations, those may not be binding. It is therefore far from clear how those provisions as they stand can provide remedy or redress for an individual officer who has been victimised for whistleblowing. For those reasons, I believe that my noble friend's amendment is necessary.

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