HC Deb 03 May 1983 vol 42 cc180-8

'A police officer who is for the time being authorised to perform the duties of a particular rank is to be treated as holding that rank for the purposes—

  1. (a) of this Act; and
  2. (b) of any other Act, including an Act passed after this Act,
so far as those purposes relate to the exercise of any powers in respect of the investigation of offences or the treatment of persons in police custody.'—[Mr. Mellor.]

Brought up, and read the First time.

The Under-Secretary of State for the Home Department (Mr. David Mellor): I beg to move, That the clause be read a Second time.

Mr. Mikardo

On a point of order, Mr. Deputy Speaker. I should like your ruling and guidance about a few words in this new clause. They are the words, including an Act passed after this Act, That phrase appears to be in breach of our convention that a Parliament does not bind any of its successors as it seems to tell a future Parliament that this Act will apply to any Acts that it passes, whether it likes it or not.

I enter two caveats against myself. The first is that I know that this form of words, or something like it, has been used in other measures. That does not necessarily make it right and it does not necessarily follow that because something has not to been examined in the past it ought not to be examined now. I therefore hope that we shall consider it on its own merits and not feel bound to precedents.

The second caveat is that a future Parliament could always legislate to repeal those words or the entire Act. That sounds all right, but two questions arise. If it is argued that these words do not bind a future Parliament and do not necessarily apply to any Act passed after this Act, unless specifically provided for, what on earth is their purpose? Secondly, even though a future Parliament can get rid of these words by a legislative Act of its own, notwithstanding what the Bill says, it will have consciously to do so. To use a terminology that we make use of in a different context, we shall be loading on to that Parliament the necessity to proceed by way of affirmative resolution instead of by negative resolution.

We are saying to a future Parliament, "We are telling you that you must do this, and if you do not want to you must take some positive act to get out of doing it". In a sense, that binds a future Parliament. If my interpretation is right, I believe new clause 1 to be out of order because of these six or seven words. I am sure the House will be interested to hear your view, Mr. Deputy Speaker.

Mr. Deputy Speaker (Mr. Paul Dean)

I am grateful to the hon. Gentleman for giving me notice that he intended to raise this point. As he has said, there are precedents, including recent ones, for the use of such a phrase in an Act. It is, of course, true, again as the hon. Gentleman said, that Parliament cannot bind its successor. If these words are included in an Act, it is perfectly possible for them to be amended or removed by a future Act.

The hon. Gentleman will be perfectly in order in seeking a full explanation from the Minister in the debate on the new clause. I suggest that he should deal with the matter in that way.

Mr. Mikardo

Thank you very much, Mr. Deputy Speaker, for your kindness in considering the matter and for your ruling. I should like the opportunity—I do not know how it can be afforded, because of our rushed procedure—to move an amendment to the new clause to delete those words.

Mr. Deputy Speaker

At this stage I do not think that I can add to what I have said already. It would be better to proceed to the new clause. I am sure that Ministers will have heard the points that the hon. Gentleman has raised as well as the ruling that I have given, and it would be best if we now proceeded to debate the new clause.

Mr. Hattersley

I am in no way challenging your ruling, Mr. Deputy Speaker, but rather making a proposition consequent upon its acceptance. Clearly my hon. Friend could not come to a conclusion about how he should proceed on those words until he received the ruling for which he asked this morning and has just received. That is genuine, real, information that affects his conduct as well as the debate. If my hon. Friend tabled a manuscript amendment to delete the words, would that be acceptable and could it be debated? By doing so, my hon. Friend would be accepting your ruling without qualification and acting upon it, almost in the way that you recommended.

Mr. Deputy Speaker

I do not think I can give an off-the-cuff response to the reasonable suggestion that the right hon. Gentleman has made. It would be better to proceed with the debate. I shall give consideration to the point that he has put to me.

4 am

Mr. Mellor

As the House will know, the Bill provides that a number of powers which at present may be authorised by any police officer may in future under the Bill be authorised only by an officer of at least a certain rank. For example, at present any officer may take the decision to deny a detained person access to legal advice whereas the Bill sets out stringent criteria for this power and provides that it may be authorised only by an officer of superintendent rank or above.

It was always the Government's intention that powers which are reserved in this way should be exercisable by an officer of lesser substantive rank who has been duly authorised to perform the duties of the higher rank. The new clause removes any possible doubt about whether the Bill, as drafted, gives effect to this intention. As such, I commend it to the House.

I can assure the hon. Member for Bethnal Green and Bow (Mr. Mikardo) that the effect of this provision will not be to dilute the safeguards variously contained in the Bill for the authorisation only by senior officers of the resort to certain specified powers.

Making specific provision for the temporary assumption of more senior responsibilities by a junior officer is not a way of circumventing the Bill's requirements, but simply a necessary acknowledgment of long-established and necessary police practice. The procedure which is known, perhaps somewhat infelicitously, as acting up is not limited to the police service but is common in all disciplined hierarchies where specific duties are allocated to specific ranks. Where this is done, it follows that proper arrangements must be made to cover the absence of senior officers on illness, leave or for other reasons. It is for this reason that the police regulations provide that officers assuming more senior duties should also receive the appropriate rate of pay.

Mr. Andrew F. Bennett

Can the Minister list the powers involved? There are 14 different areas. It is important to get on the record those 14 areas so that people can see that it is not a routine matter of someone acting up, as the Minister said, but that there are substantial points of principle involved.

Mr. Mellor

The hon. Gentleman has been through the Bill in Committee and he knows better than I do, although I have familiarised myself with them, the clauses in which a specified rank is given responsibility for a certain decision. I direct his attention to four at random—clause 4(6), clause 11(5), clause 30(8) and clause 30(11).

If the superintendent is absent through illness or for whatever reason, in any well-ordered police station someone has to operate as the superintendent. It is well provided for. Usually the person in a rank immediately below—the chief inspector—is made up for the purpose of carrying out the functions of the superintendent during his temporary absence. That is recognised in police regulations by enabling that individual to be paid the appropriate sum for carrying the extra responsibilities.

It is for the purposes of that limited exception only that the new clause is being put forward. It is for the avoidance of doubt that someone carrying out under the proper procedure the role of the senior officer is not excluded from acting properly within the provisions of the Bill.

Mr. Alexander W. Lyon

The Minister has talked about a junior officer acting up and being authorised to carry out other duties. Do the words being authorised to perform the duties mean that he must be appointed to the temporary rank by the chief constable or another senior rank in accordance with regulations, or, if the superintendent wants to devolve his duties to a chief inspector, is it enough for him to say, "I am going home. Would you look after things and carry out my duties"?

What is there in the new clause that shows that the authorisation should be done in a proper way in accordance with police regulations?

Mr. Mellor

No part of police regulations deals with acting up except in so far as provision is made for remuneration to be paid over and above the normal remuneration of a certain rank of somebody who is acting in a higher capacity. The point at issue is that there are well understood occasions when it would be proper to do this and it is on those occasions alone that an officer who was not of the required rank would be acting correctly in giving a permission or carrying out a function under the Bill which provides for an individual of a certain rank to carry that through. It is not formalised to that degree, but I suggest that where one is dealing with such a well-established principle there is no scope for the kind of problem that the hon. Gentleman foresees.

Mr. Andrew F. Bennett

When one of the 14 clauses applies to an individual and it can be seen that the person carrying that out is not of the rank specified in the Bill, how will the individual be able to tell that the officer is genuinely entitled so to act and what authority has he to prove that to the individual?

Mr. Mellor

I imagine that that is a matter that can be explained, just as many other complexities of ordinary life are capable of being explained. I should not have thought that it would be beyond the ability of a chief inspector to point out that he is acting in the role of the superintendent in charge of the station, the superintendent not being available for some reason. After all, that being the case he would have to carry out a wide range of functions.

There are many precedents for the point that was just raised by the hon. Member for Bethnal Green and Bow going back over the last decade. It is not a matter of the greatest importance and we shall certainly reconsider whether it is worth including this part in the clause in the light of difficulties that have arisen. The purpose is not to bind Parliament in future but simply to provide that where in future there is any reference to something being carried out by a particular rank that could be done without having some kind of acting up provision. If it were the will of Parliament to change it in future, that could be done. It may be that to provide for such an unlikely contingency is not worth detaining the House with.

Mr. Deputy Speaker

I should tell the hon. Member for Bethnal Green and Bow (Mr. Mikardo) that his manuscript amendment has been selected.

Mr. Hattersley

I am always most wary when a Minister tells the House that the Government's amendment had always been proposed and intended and that it was now thought right to clarify it beyond any doubt. The best that can be said of such a procedure is that once more the Government have got their drafting wrong, and the worst that can be said is something more reprehensible than that. I do not want to deal with the most reprehensible conclusion, but I do want to tell the Under-Secretary of State something that he clearly does not understand. If it had always been the Government's intention that the acting up provision should be included in the clause, the Government never thought it right to make that clear to the Committee. Indeed, if he reads the Committee Hansard he will see that every time the new and, by some standards, unacceptable powers were discussed, we were always assured that they would be operated only when they were authorised by an officer of a specified rank.

My hon. Friend the Member for Stockport, North (Mr. Bennett) reminded the Under-Secretary of State that there was not just a single new power to be limited in the way that we are now discussing. There are 14 new powers in the Bill which, as the Bill stands at present, are used only when they are specifically authorised by an officer of a particular rank. Let me remind the hon. Gentleman of some of those which cause particular controversy and will continue to do so.

First, there is the vexed problem of the authorising of the setting up of road checks. In the three and a half sessions when this was debated in the Committee we were told time after time that our fears about this power being used improperly, unlawfully, casually or unnecessarily ought in part to be checked by the knowledge that it had to be authorised by a superintendent. What it now amounts to, as I understand it, is that it has to be authorised by a superintendent, or a chief inspector if the superintendent has gone home. That is a quite different state of affairs.

Let me take another example. One area of continued controversy which I promise the Government will haunt them long after the Bill is passed into law, if it is passed into law, is that covering the dual distasteful provisions of the authorised taking of intimate body samples, with consent, and the authorised taking of non-intimate body samples, without consent. That, we were told when we debated it, would be approved and could be carried out only if a superintendent, the man in charge of the whole area, authorised it.

That is also the position with the intimate body search. I shall not harrow the House in the middle of the night with an account of what the intimate body search involves. The Minister seems to be urging me to do so, but I cannot gratify his wish. I simply remind him of the fact that, if a suspect does not agree to an intimate body search by a doctor, he will be subject to an intimate body search by a policeman—but only, we were told upstairs, if a man of command rank in charge of an entire division regards it as necessary and authorises it. Now it is to be done by a superintendent or, in the absence of a superintendent, by somebody else.

Under other provisions, there are duties that are reserved to officers more junior than a superintendent. The authorised entry and search of premises following an arrest, according to the Bill, has to be approved by an inspector, or, I assume now, a sergeant acting in the place of an inspector when the inspector is away. I do not in any way minimise the importance of sergeants. I am sure that sergeants in the police force, like sergeants in the army, keep the service going. What I am saying is that the confident assurance that an officer of a specific rank would have to authorise these controversial actions has been totally diluted by what the Under-Secretary of State has said and by what he now proposes.

It really is not good enough for the Minister to say to the House that the procedures by which the acting up is arranged are well known and well established and will cause nobody any concern or grief. We might be more charitably disposed towards his proposals if we were told that a chief inspector would operate as a superintendent only with the specific authorisation of the chief constable when the superintendent was sick, on leave or otherwise unavailable for a very considerable time. I am advised —and the Under-Secretary of State will, I know, be the first to tell me if I am wrong—that that is not the case. It will be done when the appropriate officer is not there to perform the task.

I must say to the Minister that simply to arrive at this time of night and blandly assure us that this is always what the Government intended and therefore there is nothing to worry about is not the way to command the confidence of the House. I hope that he will think very carefully about what the clause involves and understand that, while it may pass into law, it will cause nothing but concern and trouble for the police if it is implemented in the way that he suggests.

I hope that the hon. Gentleman will spare the House a moment to give us another word on the question that he failed to answer about the circumstances in which what he calls acting up will be authorised. To say that it is normally the case and that we all understand the proceedings is not enornously convincing. I hope that at least he will tell us when he thinks the circumstances that are regarded as necessary by the new clause are likely to operate.

4.15 am
Mr. Pitt

I am concerned about this matter, as is the right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley). I had assumed when I read the new clause at first that there would be a specific task of acting up, in other words that there would be a specific devolution of reponsibility on a permanent basis. Now what worries me is that I learnt that perhaps the superintendent will say to his chief inspector, "You do the job. I am going home." Alternatively, the chief inspector may casually give the duty to perform those tasks, which should be performed by him, to a sergeant.

I should like to know what the procedures are. I am an ex-soldier — only national service, but never mind. I know the procedures in the Army, and by and large they are devolved procedures unless here is a specific circumstance where a senior rank has to devolve rapidly for a specific reason to a junior rank.

I am also aware that in local government, of which I have some experience, there is some devolution of power based on an honorarium, so that the person has a specific task to perform in the absence of another person. While he is performing that task, he is paid an honorarium. Could the Under-Secretary of State be more precise? It is difficult at this late hour to absorb what appears to be an exceedingly bland new clause. When one reads it, one is worried, especially bearing in mind the assurances that were given to us by the Minister of State in Committee. I should be grateful if the Under-Secretary would give me an assurance that whatever acting up is being done, it is done on a specific and regulated basis or on a controlled basis, in the absence of a senior officer, for a specific purpose.

Mr. Mikardo

I appreciate your selecting the manuscript amendment that I tabled, Mr. Deputy Speaker. When the time comes for it to be moved, I shall do so formally, first because I said all that I had to say about it in raising a point of order and, secondly, because of the forthcoming attitude of the Under-Secretary of State, for which I am grateful.

I shall say a few words about the new clause to supplement what my right hon. Friend the Member for Birmingham, Sparkbrook (Mr. Hattersley) said. In an earlier debate in Committee I referred, highly appreciatively—my appreciation was sincerely felt—to a broadcast radio interview given a few days ago by Assistant Commissioner Geoffrey Dear about the police complaints board report on the damage done by some police searches of houses in Brixton. Mr. Dear said that it was all bad, horrible, and indefensible, but it is not likely to happen again because we are now ensuring that such action will be taken only under the control of senior officers, and, furthermore, we are taking steps to ensure that guidance will be given to those senior officers in respect of such action.

I do not know whether, when Assistant Commissioner Dear made that statement a few days ago, he was aware of the contents of new clause 1. I think that he probably was not because, if he had been, he would have been a little less dogmatic about safeguards being provided against a repetition of what happened in Railton road by the fact that only senior officers would be able to authorise it in future. It is clear now that, in the terms of new clause 1, somebody less than a senior officer will be able to authorise it; because any senior officer will be able to delegate his powers to one less senior.

I ask the House to bear in mind the attitude to this matter taken by the Royal Commission. It was said over and again in Committee, and earlier in our proceedings today, that the Royal Commission made proposals for increased powers for the police that the Government have accepted and put into the Bill, and also proposed that those powers should be subject to certain safeguards, most of which the Government have omitted from the Bill.

One of the safeguards was that, in respect of each of the new powers, the Royal Commission laid down the rank of authority for action to be taken under the new power. My right hon. Friend the Member for Sparkbrook has listed four or five of those new powers, and has told us what rank the Bill proposes. Before that, there was an erosion of the proposals of the Royal Commission. In many cases the rank that is provided in the Bill as the level of authority for authorising the use of a new power is below the rank that was recommended by the Royal Commission as being the authority for the exercise of that power.

I can quote one or two examples. My right hon. Friend mentioned the discussion that we had in Committee about the authorisation for the setting up of road blocks, and said that we had an assurance that our fears could be allayed by the knowledge that their authorisation could be made only by a superintendent. However, that was not the proposal of the Royal Commission, which recommended that the authority for that action should rest only with an assistant chief constable. The Bill took one down-grading step to superintendent, and new clause 1 takes one or more down-grading steps; because there is nothing in it that says that an officer can delegate his powers to an officer who is only one rank below him. Theoretically, a superintendent could delegate his powers to a constable, although I do not suppose that it would happen. There is nothing in the new clause to prevent it from happening.

In the same way, to go over some of the examples quoted by my right hon. Friend, the commission proposed that intimate body searches should be authorised by a sub-divisional commander, but the Bill has down graded that to a superintendent. To authorise delay in notifying somebody when one is arrested, the commission suggested a level of the officer in charge of the station, and the Bill down-grades that to superintendent. Similarly, there are four other cases in which the commission proposed that the authority should be exercised by a sub-divisional commander, but the Bill has down graded that to superintendent.

Mr. Mellor

I think that the hon. Member will find that in many police forces the sub-divisional commander is often a chief inspector, so by making the authorisation level to superintendent the level is being raised, not reduced.

Mr. Mikardo

That may be right in some services, but I know of others where it is not right and where there is downgrading. In any event, in new clause 1 we now have the possibility of a further down-grading.

All the talk that we heard to allay the fears and placate — I almost said con — the Standing Committee into accepting things of which it might otherwise have been doubtful, has also deceived no less a person than an assistant commissioner of the Metropolitan police, who clearly made a statement when he was unaware of this dilution of rank or authority in new clause 1. On those grounds, we on this side do not find the clause acceptable.

Mr. Dubs

I was quite surprised to hear the Minister introduce the new clause. He did so in a somewhat insensitive manner, bearing in mind the nature of the discussions and the assurances that we were given during four months of debate in Committee upstairs. If it is to be presented to the House now as an afterthought by the Government, it should be presented in a somewhat more apologetic way. I find this type of approach somewhat hard to stomach, after all the assurances that we had earlier that the Government were fully in command of the Bill, and that everything had been thought through and nothing had been done with undue haste.

I wonder whether the Minister will now give the House a little more information. If it is true that a police officer acts up very infrequently, if it happens once or twice a week, say, in the Metropolitan police area, most of us would say that, although the new clause is an afterthought, it represents a sensible tidying up. However, if it happens fairly frequently, surely it undermines much of the Governments argument about safeguards. There is no sense in saying that it requires a particular seniority of police officer to exercise certain responsibilities, and then to say, "Oh well, for all sorts of reasons we often must have a more junior officer in charge of the police station, and he will take over the responsibilities that we have specified in the Bill."

I hope that the Minister will tell us which of those two is correct. In other words, how often does acting up take place? How often does a more junior officer take over the responsibilities that should normally be exercised by a senior police officer? We can accept it if the Minister says that it is an isolated occurrence, but if it happens fairly often it undermines a basic facet of the Bill, and it is something that we should know before we proceed further in our consideration of the new clause.

Mr. Andrew F. Bennett

We should also ask the Minister what training the person who is acting up has had, because if he is waiting to get promotion and has had the training it is not as worrying as if he has not had the training, which in some cases will be quite considerable, for the extra duties that he would normally carry out at the higher rank.

Mr. Dubs

That is a valid point. I hope that the Minister will give us more information on the matter. Otherwise, it makes nonsense of the many assurances we have been given that the seniority of the police officer was a safeguard that the Committee should accept, because it meant that matters would be dealt with by an officer who was senior enough and who had had the experience and training that were necessary to exercise the duties itemised.

Mr. Mellor

Perhaps I may respond briefly to the debate. First, may I say to the hon. Member for Bethnal Green and Bow (Mr. Mikardo), in the spirit of reconciliation that is appropriate to 4.28 am, that we accept his amendment. To develop the point that I made during the course of his speech—I hope not unhelpfully —I accept that there are instances when, for persuasive reasons, some changes have been made to the recommendations of the Royal Commission. However, they are not all one way. The point about the subdivisional commander appears in the Royal Commission's report. In many forces he is at chief inspector level and a question of upgrading is involved. We received some representations that we were making the requirement too strong. We chose the rank of superintendent as it is sufficiently senior to justify the provisions and to attach seriousness to them. In no sense is the proposal a derogation from that.

I hope that I can also assist the hon. Member for Battersea, South (Mr. Dubs). There is no question of the superintendent going off for the evening and someone being made up to take his place. There is no consistent pattern among the forces, but in most cases force orders make provision for the acting up procedure. It will not be an every-day occurrence, but it is difficult to say how often it will occur. How often do illnesses occur? It is certainly not a question of an officer going off for the evening with his wife and someone acting up in his absence. A long period of being absent due to illness, for example, is involved. The procedure has always been part and parcel of the police service.

It would be wrong if, in our anxiety, the issue tipped over to a root-and-branch objection to someone with the rank of chief inspector being able to discharge a superintendent's duties. We must understand that in a common sense world a senior officer may be absent for a considerable time but that it may not be sensible to promote someone permanently to that rank, although someone must discharge the duty.

I should be concerned if we were talking about someone discharging the superintendent's duty on an ad hoc basis just because he happened not to be there or, if any challenge were raised, it could be said, "That is not a good point because the officer was acting as superintendent at the time." The provision has to be more formal than that. I hope that I have made it clear that the proposal is not sinister and that it should command the support of all hon. Members.

Question put and agreed to.

Clause read a Second time.

Manuscript amendment proposed to the proposed clause, in line 4, leave out including an Act passed after this Act".—[Mr. Mikardo.]

Mr. Whitelaw

We are prepared to accept the amendment.

Amendment agreed to.

Clause, as amended, added to the Bill.

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