CODES OF CONDUCT (NON-POLICE INVESTIGATIONS) (Hansard, 12 June 1996)

§ Mr. Michael
I beg to move, That the clause be read a Second time.

§ Madam Speaker
With this, it will be convenient to discuss the following amendments: No. 73, in clause 24, page 17, line 18, after '22', insert 372 'or (Codes of Conduct (non-police investigations))'. No. 74, in clause 25, page 17, line 33, after '(1)', insert 'If no relevant code prepared under section (Codes of Conduct (non-police operations)) has been brought into operation,', No. 75, in page 17, line 40, leave out 'police officer' and insert 'person'.
No. 76, in clause 26, page 18, line 10, after '22', insert 'or (Codes of conduct (non-police investigations))'.

§ Mr. Michael
In Committee, we pointed out that it was extremely unsatisfactory for a number of investigators not to be required to operate to the standard that we required of the police. The response was that Ministers did not want to place onerous requirements on a variety of organisations that had a variety of responsibilities involving undertaking investigations. During the debate, we made it clear that we wanted to regulate the activities of and place the same onerous requirements on, for instance, customs officers, who frequently undertake investigations into criminal activities, which are comparable in every way to the work of the police. That point does not cover all their activities, and the same applies to other organisations that are sometimes involved in the investigation of criminal offences.
We took the Minister's response in Committee seriously and that is why we tabled the new clause, which we hope will cover the point rather more constructively. It would give a power to the Secretary of State to prepare a code or codes relating to the conduct of persons other than police officers who undertake criminal investigations. That means that the power lies in the hands of the Home Secretary to introduce a code for investigative organisations where it is appropriate. We also make it clear that he would have regard to the nature of the investigations being conducted by the person to whom the code applied. In responding to the debate in Committee, the Minister made the valid point that some investigations are comparable to the work of police officers, but that other investigations undertaken by a variety of public bodies are not comparable. We allow for that distinction in the new clause.
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We also underline the point that there is a need for persons other than police officers who conduct investigations to do so in the same manner where an equivalent matter is involved. I make the point strongly that it is the work of Customs and Excise in gathering intelligence, through central intelligence operations, and in investigating offences which is strictly comparable to the work of the police. It seems odd to suggest that, in relation to matters such as drug smuggling, different criteria should be applied to a non-police prosecuting or investigating agency from those that are stringently applied to the police, who are already far more accountable than an agency such as Customs and Excise. I again make it clear that I am talking only about the investigative functions of such agencies which are comparable to police functions.
There is a danger of confusion, arising from questions such as who is an investigator, to whom the code applies, which is not mentioned in the Bill, and which parts of the code apply to people other than police officers, if we stick to the present wording in the Bill. It merely requires other 373 investigators to have regard to the code of conduct, which has been made available in draft and which specifically applies to the police. We require the highest standards to be observed by police officers. The fact that Ministers made the draft code available at a very early stage has been helpful to us. That allowed for much better and informed debate, and I place on record our thanks for the way in which Ministers made our deliberations in Committee far more fruitful as a result. The need to go down many false trails was avoided because answers had been given to us in the draft code.
At the end of the debate in Committee, I said that I hoped that the Minister would consider the points raised in the light of our constructive exchanges and that we would study the Minister's comments between the Committee stage and Report. We have done so. I believe that the new clause avoids the difficulties that the Minister highlighted in the Committee debate. It is disappointing that the Government have not tabled an amendment rather than, once again, leaving it to the Opposition. However, I stress that we have tabled an enabling new clause. It does not require the Home Secretary to use the power that it contains, but it means that, without primary legislation, it would be possible to extend a specific code to agencies other than the police.

§ Mr. Kirkhope
On 16 May in Committee, as the hon. Member for Cardiff, South and Penarth knows, mark 1 of his proposals was put before the Committee. Sadly, I had to say that we were unable to accede to his wishes. In the following sitting on 21 May, as I said and as was reported in Hansard, he miraculously produced a derivative which I regard as mark 2. Again, I was not able really to help him. Today we have mark 3, so one cannot say that the hon. Gentleman has not been trying hard in his wish to see his proposals accepted. I am sorry to say that I cannot accept those proposals, and I shall explain why.
New clause 15 would enable the Secretary of State to prepare codes for the conduct of criminal investigations by persons other than police officers. Amendments Nos. 73 to 76 make related changes to part II of the Bill. As the hon. Gentleman has more or less confirmed, the new clause is presumably meant to ensure that if the Secretary of State prepares a code for non-police investigations, it is binding to the persons to whom it applies. However, I am not certain that the new clause would achieve that. Unlike clause 22, it does not require the code to contain provisions designed to secure that anything is done by such persons. It provides simply that the Secretary of State should have regard to the nature of a criminal investigation and ensure that it is conducted as far as possible in the same manner as if it were conducted by police officers. It is not clear what practical effect the new clause would have. Despite the hon. Gentleman's remarks, I am sure that that is the position.

§ Mr. Michael
Perhaps I may help by explaining what is meant by that. The new clause states that the Home Secretary, in preparing the code, should have regard to those elements. Once it had been prepared by the Home Secretary, the code would be binding on the individuals required to observe it.
374 Subsection (2) of the new clause would merely ensure that the Home Secretary had regard to two elements that I understand the Minister wanted to include in the requirements placed on non-police investigating bodies.

§ Mr. Kirkhope
We had a long debate in Committee on the whole question of codes as they apply to non-police investigators. We exhausted the discussion and my conclusions at the time were that codes of practice were so different and disparate, and in many ways they should be, because of the different nature of activities of certain bodies and the fact that some, such as the Health and Safety Executive, have a dual role of investigation and prosecution. I explained all that and we went through it with great care.
I know that the hon. Gentleman is trying to be helpful, but whatever he has said, I do not consider it necessary to amend the Bill as he proposes. As he knows, it already requires the Secretary of State to prepare a code of practice for criminal investigations by police officers and it requires investigators other than the police to have regard to the relevant provisions.
As I explained in Committee, that formulation was based on the precedent in the Police and Criminal Evidence Act 1984. I also explained that a number of cases since then have established that the relevant provisions of the PACE codes of practice are binding on persons other than police officers who are charged with the duty of investigating offences.
Although I fully understand why the hon. Gentleman wants to give the Secretary of State the power contained in new clause 15, we continue to believe that it is one power that he does not need to take.
Despite the hon. Gentleman's eloquence, the arguments that he made and the stamina that he displayed, we are not persuaded that the new clause is necessary or desirable. We believe that we can achieve the necessary elements without it. So, on behalf of the Government, I am afraid that I am not able to accept the new clause.

§ Mr. Michael
I am grateful to the Minister for at least trying to be positive in the way that he responded, even if the answer is still a clear no. We all agree about the importance of giving the police specific and clear responsibilities. The trouble is that the Bill requires non-police investigators only to "have regard" to its provisions and to the code of conduct. To a great extent, they will decide for themselves what it means to have regard to those provisions. Therefore, the requirements on non-police investigators are far less onerous than they are on the police.

§ Mr. Kirkhope
I shall not detain the House, but I should make it clear that although those investigators have only to "have regard to", as I explained, the courts will take careful note of whether they have done so, and there is plenty of evidence that that is an onerous requirement.

§ Mr. Michael
I accept that it would be an onerous requirement if it were enforced by the courts, but that will not apply where it does not come to the attention of the courts. We are concerned not only with what comes to the attention of the courts, but with the ethos and method of investigating and passing on information in the process of prosecution, which investigators are required to observe.
375 The fact that the requirements are less onerous than those on the police is perhaps a tribute to the importance that we place on the police. However, there is a growth in investigative and intelligence activities by non-police organisations, particularly Customs and Excise, as I highlighted earlier.
Many investigating organisations also act as the prosecutor, so there is no clear separation between investigator and prosecutor, which is a strength of the structure reflected in the Bill in respect of the police.
For those reasons, we felt that the new clause was desirable and should be added to the Bill. However, it is clear that the Minister will not accept it. He has responded in a courteous way. I believe that at some point in future we shall have to return to this in amending legislation, but for today I am content for the points to have been made. I beg to ask leave to withdraw the motion.