HL Deb 30 October 1984 vol 456 cc461-71

1 Clause 1, page 1, line 7, after ("constable") insert ("in uniform").

2 The Commons disagreed to the above Amendment because it would unduly restrict the circumstances in which a constable might exercise his powers.

Lord Elton

My Lords, I beg to move that this House doth not insist on their Amendment numbered 1, to which the Commons have disagreed for the Reason numbered 2.

When this Bill came to your Lordships' House from another place it was received by a number of your Lordships with a good deal of suspicion. This was because a number of your Lordships believed that it gave new powers to the police, that these powers affected the civil liberties of individuals towards whom they might use those powers, and that the safeguards which the Bill provided for those liberties were not adequate to balance them.

The whole of our lengthy and painstaking treatment of the Bill has turned again and again upon this question of balance—the balance between, on the one hand, the power of the police to protect the public from criminals, and, on the other, the need for the law to protect the fundamental liberties of those the police suspect of being criminals.

The first debate on that central issue emerged on the first day, on this amendment of the first clause. The clause, as it came to us from another place, proposed a power for any police constable who had reasonable grounds for suspecting that a person or a vehicle was carrying stolen property, or articles intended for use in the process of acquiring other people's property by illegal means, or offensive weapons, to stop them and search them for these things. This was a power short of arrest which had been available to a number of police forces for a long time and which recent Scottish experience had proved to be beneficial in the fight against crime.

Nonetheless, your Lordships were suspicious of it. Noble Lords opposite were suspicious of it on the general grounds I have already mentioned and they sought to limit it beyond the limitations as to place and circumstance already in the Bill. Those limitations included the requirement that before he began the search the constable should identify himself with his name and the name of his police station; that he should tell the suspect what he was looking for and why he was looking for it; that he should inform him that a written record would be available to him, on request, of the object and grounds for the search; of the date, time and place of the search; of what, if anything, was found by the search; of any injury or damage resulting from the search; and, of course, of the identity of the person carrying out the search. The Bill also prevented a constable, in conducting a search, from requiring a person to remove more than his outer coat or gloves.

The safeguards written into the Bill included everything recommended by the Philips Royal Commission, and more besides. Those fairly substantial safeguards were not enough to settle your Lordships' anxiety, and after 14 columns worth of debate your Lordships persuaded the House to limit the power further and substantially. This was done by an amendment moved by the noble and learned Lord, Lord Elwyn-Jones, evidently very persuasively, to the effect that the power should not be given to every police constable but only to police constables in uniform.

That amendment was passed against the strong advice both of the Government and of the Philips Royal Commission, whose opinions on other matters noble Lords opposite regarded as being more sacrosanct. It would be fruitless for me to wheel out again all the arguments I fired off at this amendment at Committee stage. Suffice it to say that the amendment took from the police a power which both we and they believed to be of great importance to law enforcement and without which both off-duty men and policemen on duty in plain clothes must either arrest a suspect or let him go unchallenged. This has serious implications for essential planned operations such as those against shoplifting, which in some places is very serious indeed. It also means that no beat policeman can search someone he meets unexpectedly and while he is not on duty, who he believes may be on the way from a burglary, if he is not wearing his uniform, unless he first arrests him and enters upon the procedures which the Bill already lays upon him for an arrest. Noble Lords, it seems, felt that they would rather the innocent suspect was arrested, and presumably taken to the police station, than have his innocence quickly demonstrated on the street.

Noble Lords were not reassured by the requirements already in the Bill that a constable not in uniform must produce documentary proof that he is a constable before he embarked on a search; nor were they impressed that exercise of this power in the past had not produced the general disquiet they now told us to expect. We had argued that the balance between suspect and police was evenly struck. It was very much a question of balance, and in the end your Lordships decided against the Bill, the Government and Philips, and in favour of the noble and learned Lord's amendment, and did so by two votes; so the balance in that case was very nearly even.

The practical and operational arguments against taking that course are the same today as they were on 25th October, and if I were to advance them again in the same circumstances, we ought, other things being equal, to get the same result. But other things are not equal. Two things have changed; both of them are very relevant, and I ask your Lordships to give due and considerable weight to them. The first is that we have since agreed to subject the whole of the stop and search provisions of the Bill to the operation of a code of conduct. Breach of that code will be a disciplinary offence which the courts are empowered to consider in any case involving the search. That code has been published in draft. It is available to your Lordships and I think your Lordships will agree that it does add significant weight to the safeguards of individual rights embodied in the Bill.

Indeed, the view of noble Lords opposite may now already be that of the leading article in Thursday's Guardian newspaper—a paper which I understand is very much read by noble Lords opposite. That paper says: Accepting the Lords' amendment would mean accepting that a plain clothes police officer, on duty to prevent and detect crime, must ignore deeply suspicious behaviour. That would not reduce crime. Stop and search creates apprehension because it is open to police abuse. Mindful of that, the Government has introduced a stop and search code. It is the strength and rigorous enforcement of that, rather than the Elwyn-Jones amendment, which will best serve the twin interests of justice and civil liberty". On those grounds alone I believe that the voting balance, so narrowly tilted one way, can now fairly be tilted the other. But it is not the only change in circumstances. There has been another. The other is that the elected House of Parliament, having considered that balance, and having taken note of that additional safeguard, has come down on the side of the Bill as drafted and against the amendment.

I believe that the proper thing for your Lordships now to do is not to insist on your Lordships' amendment. The arguments against it when it was first moved were such as to give only the narrowest majority for it. It was agreed on the grounds that the safeguards in the Bill were inadequate—they have since been reinforced. It is the decided opinion of another place that in these new circumstances the amendment is no longer merited. I respectfully suggest that your Lordships might now agree with them.

Moved, That this House doth not insist on their Amendment No. 1 to which the Commons have disagreed for the Reason numbered 2.—(Lord Elton.)

Lord Elwyn-Jones

My Lords, in spite of the persuasiveness—if I may return the compliment—of the noble Minister, I invite the House to insist on your Lordships' amendment which was carried, albeit by a small majority, as the noble Lord has said, but with support from all quarters of the House. Indeed, that was quite a remarkable feature of the debate.

This is an important amendment which, of course, is why we are endeavouring to insist upon it. As the noble Lord has indicated, it arises from Clause 1 (2) of the Bill. Whereas subsection (1) of that clause, giving powers to the police, states that it may be exercised only by "a constable in uniform", subsection (2) gives the power of stop and search to a constable simpliciter and that means that he need not be in uniform when he stops a member of the public and searches him or any vehicle at any time of the day or night in any public place—or other places as well—anywhere in England and in Wales if he has reasonable grounds for suspecting that he will find stolen or prohibited articles. "Prohibited articles" are defined to include offensive weapons and of course any article in the possession of an offensive person can easily be construed as an offensive weapon. But that is the mischief that is sought to be exposed and attacked.

We on this side of the House are not challenging the need for the police force to have the power of stop and search. What we are challenging is their power to do so in plain clothes—that is the sole and crucial issue that arises on this amendment. The value of stop and search powers in terms of protecting the community is in any case very small. Yet if the Bill as it now stands receives Royal Assent and if the practice in London—where there are a million stops and searches in a year—is extended throughout the country, it may well mean that 7 million or 8 million of our fellow citizens may be stopped or searched on the streets in many circumstances and on many occasions by plain clothes constables. The huge majority of that vast number of our fellow citizens will be innocent. They will have done nothing wrong and will have no cause to be stopped or searched. Unfortunately, a disproportionate number of those will be youths and particularly members of the ethnic minority. I think it is significant that a recent report of the Policy Studies Institute on the metropolitan police indicates that only 3 per cent. of the stops and searches carried out by the police resulted in arrests—three out of 100. We do not know in how many of that limited number of cases there were subsequent charges or how many charges resulted in conviction.

To be stopped and searched even by a police constable in uniform is not an experience to which the public take kindly especially—as will be the case with most of them—when they are innocent. I submit that they will take even less kindly to being stopped and searched by someone of whose credentials when they are stopped they are not sure.

The matter was put with great force by the noble Baroness, Lady Macleod, when she spoke in our debate on 26th June. Incidentally, we hope that she will be back among us again soon. I do not think that the noble Baroness will mind if I quote her. She said: I am only a common citizen who might be stopped. I would prefer to be stopped by an officer in uniform. An officer in uniform carries more weight and much more authority … I am thinking specifically of the young. They need to have confidence in the people who might in the future stop and search them. It is important that the young person involved should be able to see the [constable's] number and know, because of the uniform, that there was a perfect right to stop and search them. That is followed by confidence, and in turn will be followed by communication between the two. That will do both sides a very great deal of good."—[Official Report, 26/6/84; col. 794.] With that I respectfully agree, and in a way it goes to the heart of what we have to decide this evening.

The Minister has properly and not surprisingly relied on the safeguards which exist in Clause 2 of the Bill and which he has described. But while those safeguards are good as far as they go, the difficulty will be that the constable has quickly and immediately to convey the information set out in that rather elaborate clause, and the danger is that the communicated information will come too late. The critical point which we are dealing with in the circumstances which could arise concerns the first minutes, or seconds even, after the stop and the attempted search. The probable reaction in many cases would be resistance or an attempt to escape, followed by a chase and then other succeeding charges.

We do not think that the safeguards will create certainty in the mind of the person stopped or searched that the person seeking to stop him and search him is indeed lawfully entitled as a member of the police force to do so. At the end of the day the important question as we see it is this: will giving the power to stop and search to plain clothes police constables enhance the police service, or will it be liable to increase the friction between the general public and the police? The ordinary citizen if approached by a constable in uniform has the natural reaction to co-operate with the police, but approached by someone not in uniform the reaction may well be very different.

If the police are to succeed in combating crime—and it is very important that they should do so for they are and should be in the front line of the action against crime—they must retain the public confidence. That is an absolute necessity in the struggle against increasing crime, and alas that is not happening. Giving power to the police in plain clothes dressed like any ordinary citizen, or perhaps even in some curious so-called ordinary clothing, to stop and search a citizen in the street, maybe at night in a secluded place, will be liable not to increase confidence in the police force but rather to diminish it. I beg to move the insistence on the amendment.

The Lord Chancellor (Lord Hailsham of Saint Marylebone)

My Lords, I am in a little difficulty. I thought that the Question was, That the House do not insist on their Amendment No. 1 to which the Commons have disagreed for Reason No. 2.1 have no brief as to what I say now, but I thought that the Question would be "Content" for the noble Lord's Motion and "Not-Content" for those who disagree with him.

Lord Elwyn-Jones

My Lords, I took too much upon myself, perhaps not for the first time. The noble and learned Lord is of course right.

4.31 p.m.

Lord Donaldson of Kingsbridge

My Lords, I shall not delay the House for long. Up until now I have had the powerful support of two noble friends, one Liberal and one SDP, who are prominent criminal lawyers, and in speaking as a layman one must be very careful. There are two serious dangers here, one on each side. One of the dangers has been well described by the noble and learned Lord. It is the growing distrust of the police—and it is still growing in certain areas—felt by in particular youth and ethnic youth. The second evil is the feeling of the police that without these powers they cannot do their proper job.

These are two important points, and it is difficult to decide quickly between them. The issue is much narrower than one at first thinks. The PSI figures, which the noble and learned Lord quoted, show that out of a million stops and searches in the metropolitan area, only 5 per cent. were done by policemen in plain clothes. Therefore, whereas we are talking in general in regard to this clause about a million stops and searches in the metropolitan area, we are talking in this case of only 5 per cent. of that.

If you are stopped by a man who is obviously a policeman, you will not react violently unless you know he has got you and you are wrong anyway. But if you are stopped by somebody who is not obviously a policeman, and if you come from the world where you strike somebody very early in an argument—and these people live in that world, make no mistake about it—you are liable to strike a plainclothes man and then be had up for resisting the police.

I cannot quote figures, but there are many cases where this has happened, where the person has got into trouble not through refusing to be searched by a policeman, but through having an argument with somebody he thinks, or likes to think, is not a policeman. It is a difficult decision. I am advising my noble friends on these Benches to vote the way we voted last time and support the noble and learned Lord, but I think that it is a narrow decision.

The Earl of Dudley

My Lords, perhaps I may say one word, because I feel so strongly on the subject. The noble and learned Lord, Lord Elwyn-Jones, referred to the young. I have a number of young children. We have in our midst a terrible affliction which threatens our young every day, and that is drugs. I can visualise circumstances in which it might be necessary for the fight against drugs to be undertaken by a policeman in plain clothes. It might be necessary for policemen in plain clothes to stop and search people for drugs. This seems to me to be so important that I cannot visualise that it would be right to remove this option from our police.

Lord Elwyn-Jones

My Lords, may I briefly intervene on that point? I think I am right in saying that the drugs legislation expressly gives the police those powers in or out of uniform.

Lord Inglewood

My Lords, I should like to say a few sentences in support of the Government. We ought not to read too much into some of the theoretical arguments which we have heard deployed in this House. We have to remember that individual policemen will be out alone, often late at night, and through the small things they may see and think unreasonable, they can be on the way to discovering quite considerable crime.

This power is practical, so far as I can see, but it is not sinister. It is used, by tradition, in certain districts more than in others. Like many police powers, it can be abused, but where powers are abused it is the business of the supervisory grades to be sure that that abuse is in fact corrected. A discreet and correct use of this power may greatly help with the normal routine duties that fall the way of every constable and stolen property is frequently recovered as a result. It is best for us to delete the words "in uniform" so that this wider power remains in the hands of the individual policemen who will proceed and who, under the proper supervision of their seniors, will be doing a most important job on the streets of the cities of this country.

Lord Mishcon

My Lords, I, too, promise to be brief, and I shall keep my promise. In the course of his remarks to the House in support of the views expressed by another place, the noble Lord the Minister said that certain factors had supervened since the debate in your Lordships' House. With great respect, I must tell him that I have read with the greatest of care the debate which took place elsewhere, and there is no question at all but that precisely the same arguments and considerations that came before your Lordships came before that place and no additional factors were there in that argument whatsoever.

To say, for example, that there is a code of practice and that that code of practice now forms part of a Bill does not affect in any way the matter that your Lordships have to decide today, and have decided on a previous occasion. To be practical for one moment, one can well imagine that if any police officer—and I admit that this is true both in uniform and without uniform—says against a person who has no witness whatsoever that he gave all the particulars and said all the things that he ought to have said, and there is merely a citizen complainant who will put his word against that of a police officer, it will be extremely difficult for any disciplinary board, however fair it may want to be, to find against the police officer concerned.

There is one central issue in this matter. My noble and learned friend put it with his usual clarity and, as the noble Lord the Minister said, persuasiveness. He was right in this point. It is that the one essential thing that we have been trying to safeguard throughout our consideration of this Bill is the relationship of the police with the community. To give the power to a police officer not in uniform, be it in the open street late at night when nobody else is there, or be it in some alleyway, to come up in plain clothes and to say "I am going to stop and search you", is to invite trouble of a completely honest kind so far as any of our citizens is concerned. Does one really imagine that, without adequate lighting and in the agony, as it may be, of that moment, every citizen will be able to say, "Yes, thank you very much. I will put my glasses on, I will inspect your identity card as a police officer. I have noted the number you have been kind enough to give me and now let us proceed with the whole affair"?

Life is not like that. What will happen is that on a number of occasions there will be resistance because the citizen concerned will not know whether he has been properly stopped. That is something that will never occur with a uniformed officer.

There can be as much debate as your Lordships like in another place or in this place. That was the central issue we debated last time: that is the central issue now. When we start talking in terms of certainty on one side or the other, I find myself in so much agreement with the noble Lord, Lord Donaldson. It was a difficult decision to take, but we took it. Reference was made to the Royal Commission. One member of the Royal Commission recommended that indeed it should be only officers in uniform.

When your Lordships debated this matter I can remember so well the words of the noble and learned Lord, Lord Denning, who is not known these days for disagreeing with the Government. Upon that occasion he definitely said that he was swayed one way and then the other and did not quite know where to land. That, with the brain of the noble and learned Lord, Lord Denning, is saying to your Lordships that we should be very careful before we disagree with that we decided on a previous occasion.

Lord Campbell of Alloway

My Lords, briefly may I support the Government on this? I suggest that it would be wrong to insist on this Lords' amendment. I respectfully question the assertion that power to stop and search under Clause 1 is of scant value. It obtains for places to which the public has access; this, without exercising the power of detention under Clause 2, both powers under both clauses are requisite. One example of the planned type of operation might be drugs, on which my noble friend has already spoken. Another might be using places for prostitution of the very young. There are such places to which the public has access in London.

A watch has to be kept by a plain clothes officer, for obvious reasons. By the time a police officer in uniform has arrived the suspect one would have wished to search may have left in a vehicle which one would also have wished to search. That is a reasonable situation. It would be wrong, in the overall interest of justice, to tip the balance too far against the police in their protection of the public.

Lord Elton

My Lords, the number of things which noble Lords opposite have said with which I agree is remarkable in this respect—that it is so different from the number of conclusions which they have reached therefrom with which I agree.

The noble and learned Lord, Lord Elwyn-Jones, was right to say that there was support from parts of this House other than the part in which he sits. To that, I can only say that I address my arguments with the greatest of fervour to those who have strayed furthest into the lobby in which he voted on that occasion. He was wrong if it was his intention to imply that the description of an officer as a constable simpliciter in Clause 2 in any way reduces the limitations imposed by this amendment to Clause 1, upon which it depends. But he did not make much of that and nor shall I. He was right to say that those who are stopped by plain clothes policemen will, in many cases, be absolutely innocent. I wonder why therefore he insists that arrest shall be the only means of establishing that innocence in future. He is right to say that the numbers of searches are large. That is why substantial cautionary words are in Section IB of the code of practice.

He and the noble Lord, Lord Donaldson, were both right to say that these stops and searches easily can and often have had a bad effect on the confidence of the people searched. That is why we have in the code—I will read the briefest excerpt—that, It is … important to ensure that the powers are used responsibly and sparingly. Over use of the powers is as likely to be harmful to police effort in the long term as misuse. It is also particularly important to ensure that any person searched must be treated courteously and considerately"— and not in a manner that can be mistaken as an assault in a back alley— if police action is not to be resented". The whole of this code will guide and inform the supervisory grades, who, my noble friend Lord Inglewood rightly reminded us, will be seeing that the junior ranks behave themselves as they should in carrying out these operations.

My noble friend Lord Dudley, rightly highlighted the importance of drugs. To the extent that these items can be searched for by constables under another Act of Parliament, this amendment is an anomaly and superfluous. But shoplifters do not usually steal drugs: muggers do not use drugs as offensive weapons against their victims: burglars do not use drugs to open other people's windows, and these are the matters that we are concerned with.

The noble Lord, Lord Mishcon, was right to say that there was one dissentient voice on the Philips Commission, but I think he might have mentioned that there were 15 other voices altogether who agreed.

I come in conclusion, because your Lordships wish to conclude this matter, to the question of public confidence to which the noble Lord, Lord Mishcon—persuasively as always—rightly drew your Lordships' attention. We believe that public confidence in the police is essential in a free society. We do not believe that the public can maintain confidence in a police force to which Parliament denies rights to carry out their essential functions in uniform or out. We believe that those who are stopped and searched, now that the code is in existence, will be less numerous and far less alarmed than they have been in the past. We believe that the powers we ask your Lordships to leave in this Bill are essential to good order, safety and public confidence in the police service.

4.48 p.m.

On Question, That this House doth not insist on their Amendment No. 1 to which the Commons have disagreed for their Reason numbered 2:

Their Lordships divided: Contents, 145; Not- Contents 108.

Resolved in the affirmative, and Motion agreed to accordingly.