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The noble Baroness said: The amendment was tabled because of my concerns about the relationship of the Secretary of State with SOCA. Unless Members of the Committee wish me to expand on it, I beg to move.
The noble Lord said: The purpose of the amendment is that SOCA should have regard to the code of practice and be bound by Section 6 of the Human Rights Act 1998 because it is a public authority. However, for the 1998 Act to be fully effective, it is necessary that the victim of an interference is aware of it and can complain
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about it. Since many of SOCA's activities will not be made apparent to those whose rights they engagefor example, information-gathering and disclosure of informationSOCA will not often be fully accountable to victims of interferences. We believe that it is necessary to enhance the protection of fundamental rights, and hope that this will be taken into consideration. It would also be helpful to have an assurance from the Minister that in the exercise of police powers, SOCA will be bound by the provisions of the Police and Criminal Evidence Act 1984 and the codes of practice issued under it. I beg to move.
Baroness Scotland of Asthal: I am grateful to the noble Lord, Lord Dholakia, for explaining the thinking behind this group of amendments. In three out of the four amendments, I am with him in principle, but I hope I can persuade him that all four are unnecessary.
Amendments Nos. 11 and 18 would place a duty on SOCA, the Home Secretary and Scottish Ministers, in exercising their functions under the Act, to do so in a way that meets their obligations under the Human Rights Act. As the noble Lord will know, Section 6 of the Human Rights Act already makes it unlawful for a public authority to act in a way that is incompatible with convention rights. That being the case, it is unnecessary to restate the Section 6 duty on public authorities in the Bill. To do so would be not only unnecessary but may be positively harmful.
There is no equivalent provision in, for example, the Police Act 1996 in respect of police forces or the Police Reform Act 2002 in respect of the Independent Police Complaints Commission. The absence of such a provision in these and other statutes where the convention rights are also engaged may lead to the incorrect inference that other public bodies are not bound, in the same way as SOCA, to abide by the convention rights. If these amendments were made, they would cast doubt on the general operation of the 1998 Act.
Amendment No. 12 would oblige SOCA to give full effect to any code of practice issued under Clause 11 rather than simply "have regard to" the code. The formulation in the Bill is the same as that used in the Police Reform Act which introduced codes of practice for police forcesthe NCS and NCIS.
I can assure the noble Lord that the requirement to "have regard to" a code is a stringent one. SOCA could set aside the provisions of a code only if there were good reason for doing so and if it could demonstrate that it was achieving the standards demanded by a code by other means. If a code was to be binding in all circumstances, the nomenclature of a code of practice would no longer be apt and we would instead be looking at a regulation-making power. I suggest that the wording of subsection (3) of Clause 4 gets the balance about right and should stand.
Finally, Amendment No. 13 would provide that SOCA is to be bound by the provisions of the Police and Criminal Evidence Act, including the PACE codes of practice. I can assure the noble Lord that, where a SOCA
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officer is designated with any of the powers in PACE, the officer will be subject to the same conditions or limitations on the exercise of those powers that would apply in the circumstances of a police officer exercising the same powers. Where, for example, a SOCA officer exercises the powers of arrest and search under PACE, they will need to be exercised in accordance with the relevant PACE codes of practice.
"POLICE MEMBERS OF SOCA TO HAVE POWERS OF CONSTABLE ETC.
(1) A police member of SOCA
(a) shall have the powers of a constable;
(b) subject to subsection (2) below, may have the customs powers of an officer of Revenue and Customs;
(c) subject to subsection (3) below, may have the immigration powers of an immigration officer.
(2) A police member of SOCA may exercise the customs powers of an officer of Revenue and Customs only if he has previously exercised those powers or has received such training as would otherwise entitle him to exercise those powers.
(3) A police member of SOCA may exercise the immigration powers of an immigration officer only if he has previously exercised those powers or has received such training as would otherwise entitle him to exercise those powers.
(4) In this section "police member" means a police member of SOCA appointed in accordance with paragraph 13A of Schedule 1."
The noble Baroness said: I will speak to Amendment No. 14 only briefly. It refers to the serious concerns we have about Clause 44(1), under which any member of staff of SOCA can be designated as having the powers of a police constable.
As Members of the Committee will see, my amendment is grouped with Amendment No. 7. We were making such rapid progress earlier that the noble Lord, Lord Dholakia, did not move Amendment No. 7. I knew that his devotion to that amendment meant that it had to be an error. In briefly introducing my amendment, I recognise the superiority of the noble Lord's amendment on this issue and, since they effectively deal with the same subject, I shall now sit down and allow others to expand on it. I beg to move.
Lord Dholakia: I am grateful to the noble Baroness, Lady Anelay. May I say how much I miss my noble friend Lady Harris, who could have prodded me when it was my time to talk about my amendment?
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We believe that people exercising police powers should hold the office of constable, with its concomitant duties and independence, and that those exercising customs powers should hold public office and be subject to the duties of an officer of Revenue and Customs. We believe that those exercising immigration powers should be subject to the same duties as an immigration officer. We believe that civilian employees would find it difficult to exercise the degree of independence expected of a police officer and would be more likely to obey illegal orders. Granting powers without the concomitant responsibilities does not provide adequate safeguards against the disproportionate or arbitrary exercise of those powers. It carries the risk that unlawful interferences with fundamental rights will occur and will go unchecked.
Amendments Nos. 46 to 50 are consequential amendments. We believe that only a police member of SOCA should exercise police powers in SOCA investigations. It is precisely because SOCA's remit is national that we believe that this clause must be retained in an amended form to allow police members of SOCA to exercise police powers in all parts of the United Kingdom. Subsection (6) ensures that police members of SOCA are subject to the duties of a constable whenever they exercise police powers, which is an essential safeguard for fundamental rights and the rule of law.
Clause 51 stand part is also grouped with this amendment. For all the reasons that I have so far given and the strong opposition of the Police Federation, we oppose that the clause stand part. In a recent policy statement, the Government's stated:
"The Government does not, however, propose to diminish the legal status of the office of constable. To do so would risk undermining the operational discretion and versatility, the personal accountability of constables for their actions, on which the service depends".
It is illogical to suspend the office of constable when a police officer joins SOCA only to hand back the very same powers under the mandate of the director general. Despite the Government's claim to the contrary SOCA is primarily a crime agency and should be operated by the police. The pursuance of criminals requires both police training and experience as well as an understanding of the exercise of police powers. These are the most important aspects of the amendments in this particular group.
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