Police Reform Bill [H.L.] (Hansard, 5 March 2002)

§ Viscount Bridgeman
moved Amendment No. 148: Page 9, line 1, leave out sub-paragraph (ii). 215 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—l;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.
216 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.

§ 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 stall; 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.
218 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 1PCC 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.

§ Lord Bassam of Brighton
It is entirely appropriate that this group of amendments should be considered together because they all relate to the protection of those in the police who report misconduct. The intention behind the amendment tabled by my noble friend Lord Borrie is to remove the current exclusion of police officers from the public interest disclosure provisions of the Employment Rights Act 1996. My noble friend has taken careful note of representations made by the organisation, Public Concern at Work, of which I note my noble friend is a venerable patron.
We are very interested in my noble friend's amendment. As a government we are fully committed to this. In 1998 my right honourable friend Ian McCartney made clear his commitment in this regard. We want to ensure that full and adequate protection is given to those who are prepared to stick their necks out and report misconduct or corruption of which they are aware in their workplace—in particular, in this instance, within the police force and its support services.
We are satisfied that there are procedures in place for the protection of police officers who wish to report wrongdoing which are sound and comprehensive. This protection would have been enhanced by the provision in Clause 10(4)(b)(ii). However, the amendment tabled by the noble Lord, Lord Dixon-Smith, and the noble Viscount, Lord Bridgeman, seeks to remove it. I am slightly puzzled by the amendment. Perhaps it has been tabled simply to flag the issue.
We accept that these procedures do not provide redress in the extreme case where an officer feels that he or she has no alternative but to resign. In this instance, the officer would not have the same opportunity as that of an employed person to make a case to an employment tribunal for constructive dismissal.
Having heard the carefully thought through arguments put by my noble friend Lord Borrie, the noble Lord, Lord Dholakia, and also by my noble 219 friend Lord Harris of Haringey, we shall be more than happy to reflect between now and the Report stage on the amendment tabled by my noble friend and into the possibility of bringing police officers within the scope of the Public Interest Disclosure Act 1998 for protection in regard to "whistle-blowing". We think that the case has been well made. If that were to be undertaken, then Clause 10(4)(b)(ii) would not be required, and so we shall consider at the same time the amendment tabled by the noble Lords opposite. Thus, if we bring forward an amendment on Report—we are giving it active consideration—we shall be able to wrap up the issue once and for all.
A good case has been made and I should like to pay particular tribute to the group Public Concern at Work, who provided an extremely comprehensive briefing note for my noble friend Lord Rooker, which I have now had sight of. It presents a well structured and well argued case. I hope that, with those comments, the noble Viscount will feel able to withdraw his amendment. In saying that we shall consider this matter further, we shall of course wish to consult with noble Lords on the construction of a new amendment.

§ Viscount Bridgeman
I am grateful to the Minister for his response. He has satisfied our concerns about possible abuse. Perhaps I may turn to the amendment tabled by the noble Lord, Lord Borrie. We very much support it and we hope that the Government will be able to produce modifications to the Bill to incorporate it. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 10 agreed to.

§ Viscount Bridgeman
moved Amendment No. 149: Page 10, line 2, leave out paragraphs (a) and (b).
The noble Viscount said: This amendment refers to the reports of the independent police complaints commission. It is right that the commission's annual report should be made public, but we suggest that that obligation should be extended to reports made on matters to be drawn to the attention of the Home Secretary because of their gravity or other exceptional circumstances. By definition, these are matters of importance which the Home Secretary should not be allowed to keep secret.
Public scrutiny plays an important part in maintaining police standards and the commission's reports will form an integral part of the monitoring process and could provide a valuable early warning of 220 problems which may be developing. They should be open to public debate and should not be for the Home Secretary's eyes only. I beg to move.

§ The Deputy Chairman of Committees (Baroness Lockwood)
If this amendment is agreed to, I shall not be able to call Amendment No. 149A on the grounds of pre-emption.

§ Lord Tope
I rise briefly to support the amendment, or at least the intention behind it. As has been said, it is important that all the reports of the commission are published unless there is a very good reason that they should not be; in other words, the presumption should be that all reports produced by the IPPC should be published and made available. The presumption must be that the Home Secretary will not publish them only if there is a particular reason. In that case, perhaps he should be required to give the reason. I hope that that is the Government's intention and that the Minister is about to reassure the Committee on that point. Perhaps in due course the legislation will reflect it.

§ Lord Rooker
The commission's annual report will have to be laid before Parliament and published. In regard to other reports, I can tell the Committee that there will be a general presumption in favour of publication. That is as clear a commitment as the Committee could get.
The Home Secretary will consider whether publication of a report is in the public interest and will exercise his discretion. It will of course be possible for reports to be released having had any sensitive information removed. The presence of sensitive information would not be an excuse not to publish; the presumption would be in favour of publication.
The commission, as guardian of the system, will have a much increased role in comparison with the Police Complaints Authority. One of its functions will be to make recommendations and give advice on police practice in relation to matters with which it deals or comes across during the course of its work. It may be that there are occasions when reports made by the commission on matters such as dysfunction cover solely police practice and would therefore not be a matter of public interest. Nevertheless, the presumption would be in favour of publication and we would not rule out publishing reports with any sensitive information taken out.
If the legislation is too onerous, I have to say that there is always the possibility that the reports will not be written. That is a problem we have to guard against in the real world. However, as I have said, the presumption would be in favour of publication, but the discretion provided in the clause allows the future integrity of the system, the confidence of the public and those who operate the system to be preserved. We shall soon know if reports are not being published and I should imagine there would be a row about that. But given the presumption in favour of publication, I trust that noble Lords will leave the matter at this point.

§ Viscount Bridgeman
I thank the Minister for that explanation. We must rely on the ability of the 221 commission to ensure as far as possible that reports are not suppressed. We shall look carefully at the wording of the amendment which the Minister has undertaken to produce.

§ Lord Rooker
I thank the noble Viscount for giving way. With respect, I have not promised to bring forward an amendment. The last thing I want to do is to mislead the Committee. In order to avoid any doubt in this area, there will be a presumption in favour of the publication of reports. That is the position. It does not need to be put into the legislation. It will be repeated here and it will be repeated by the Home Secretary in the other place. The commission will know that the presumption is in favour of publication.

§ Viscount Bridgeman
The Minister's emollience has caused me to drop my guard. I understand what he has said and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.

§ Viscount Bridgeman
moved Amendment No. 150: Page 11,line 9, leave out from "public" to end of line 13. The noble Viscount said: The amendment refers to the issue of who can lodge a complaint. At present any member of the public can lodge a complaint. Although, at first sight, it may appear to be sensible to limit that right to the victim or witnesses, there are dangers in confining the right to complain to those immediately affected.
Part of the misconduct in question may be a threat of action against the victim if he or she complains and there may be no witnesses. If someone else—perhaps a friend or a family member of the victim, or even of the police officer—was willing to lodge a complaint, it would be wrong to prevent that and, as a result, let misconduct go unpunished. I beg to move.

§ Lord Rooker
It will take me a little longer to explain why we hope that the noble Viscount will not press his amendment than he took in moving it. He has raised an important point.
In order that there should be no misunderstandings and greater clarity for the public, we have embraced the principle of much greater accessibility to the complaints system. We want a system under which the conduct of anyone serving with the police which has an adverse effect on a member of the public is dealt with efficiently and effectively. That is why not only victims will be able to make a complaint but also witnesses—including people in control of CCTV systems—and people acting on behalf of either victims or witnesses. People who may be apprehensive about approaching the police themselves will be able to make complaints through "gateways"—that is, through community organisations or individuals who have regular contact with members of the public.
222 However, the amendment as drafted would enable any member of the public to complain about the conduct of anyone serving with the police, whether or not they had any connection with anyone connected with an incident or would be able to contribute in any way to any investigation. This would radically change the nature of the system by creating a significant amount of additional administrative work as a consequence of the wide-ranging rights. This would have a major impact on overall resources and divert them from more serious matters.
We have to strike a balance. It is clear that anyone connected with an incident or helping anyone connected with an incident, or any community organisation connected with anyone involved in an incident, will have ample opportunity to complain either as a victim or as a witness. There should not be any major blocks to anyone presenting a complaint under the system, but the way the amendment is drafted goes a little too far.
As to Amendment No. 156, the current jurisdiction of the commission as set out in the Bill includes special constables and civilians employed by police authorities who are under the direction and control of members of the police forces. Accredited persons will not be part of the police force or employed by police authorities and so are outside the scope of the system.
Some issues are raised in regard to this because of what was said in the earlier debate about people who are accredited not serving on the authorities. There is already a provision to ensure that an effective complaints system exists for dealing with complaints against accredited persons and it is not necessary to bring such persons within the scope of the system. They will not be employed by the chief constable and, in order to get them accredited in the first place, their employer will have to ensure and assure the chief constable that there is a proper, legitimate complaints system.
Accredited persons will not be allowed to use any force in the work they undertake and are not comparable to members of the police service. Their accountability will be to their employers. If there is an allegation that an accredited person has committed a crime, then the police will be able to investigate the matter in the normal way. If an allegation of misconduct is made that breaches the relevant employer's stated disciplinary code, the chief police officer will be able to insist that appropriate action is taken, otherwise the accreditation scheme would be put at risk. So there is a sanction on the employers who wish their schemes to be accredited to ensure that they have a viable, effective, open and transparent complaints system.

§ Lord Bradshaw
Before the Minister sits down, what system applies to a civilian contractor who employs staff to act, for example, as gaolers? For instance, Group 4, or a company of that kind, supply different staff at different places at different times of the day. If its staff are accused of incivility, can they be taken to 223 the independent Police Complaints Authority or do we have to rely on the contract with that firm for its own disciplinary proceedings to take over the matter?

§ Lord Rooker
I think it is the latter procedure. If the staff were not employed by the police authority—as, for example, will be the community safety officers and detention or custody officers, who will be employed directly by the chief constable—they will be outwith the scheme. It would be up to the police authority in one case, or the chief of police in the case of accreditation, to take the necessary steps before awarding a contract or accreditation to satisfy themselves that there is a legitimate and proper complaints system. It would be in their interests not to receive loads of complaints from the public—because they would receive them first—about incivility and rudeness on the part of their contractors. Unless I receive advice to the contrary, that is the position. Otherwise I shall write to the noble Lord.

§ Viscount Bridgeman
I apologise for not speaking to Amendment No. 156, which stands in the names of my noble friend Lord Dixon-Smith and myself and is in this grouping.
We shall come back to the question of accredited persons at a later stage. At this stage we are concerned that allowing an employer to deal with complaints will be similar to allowing the police to police themselves, a point I made earlier. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.

§ Viscount Bridgeman
moved Amendment No. 158: Page 91, line 39, after "not" insert "(unless it constitutes an admission of a criminal offence punishable on indictment by a maximum term of imprisonment of five years or more) The noble Viscount said: This is another probing amendment. It would be unfortunate to say the least if a police officer guilty of misconduct serious enough to deserve imprisonment for a significant term escaped by engineering a local resolution procedure and making a confession that cannot then be used to bring him or her to justice. The amendment seeks to avoid such an outcome by accepting the admission of a crime which can carry a maximum sentence of five years. Admission of more trivial offences will still enjoy the protection of the resolution procedure, so this amendment will not prove an obstacle to the use of that procedure. I beg to move.

§ Lord Dixon-Smith
Amendment No. 161, which is grouped with Amendments Nos. 157, 158, 159 and 160 is, in a sense, the reciprocal argument to the one produced by my noble friend. It arises as the result of 224 a case which was drawn to my attention in which about 20 police officers were involved in a raid where it was known that the people being raided were likely to be armed. During the course of the raid, one of the policemen, who was armed, felt that he was about to be shot and, in a snap judgment—and one can understand how these things happen—he shot a man in the shoulder.
With so many policemen on the scene, it was unsurprising that the facts were never disputed. Inevitably, the man appeared before the court on a charge of attempted manslaughter. The wheels of justice grind exceeding smooth and they grind exceeding slow. The case was dismissed at the end of last year, the CPS having done everything that it could to put a case together. In the end, the case failed for lack of evidence. That would seem to be that. But the officer involved now finds himself up on a local disciplinary charge for just that event.
That is the kind of double jeopardy of which we ought not to approve. Therefore, I was moved to table this amendment in order to probe the Government's thinking on the matter. It seems to me that if a case goes to the court and either cannot be established sufficiently to satisfy the judge that there is a case to answer or results in acquittal, that ought to be the end of the matter and disciplinary proceedings would seem to be no longer appropriate. I look forward to the Minister's response.

§ Lord Elton
My noble friend's amendment excludes very serious criminal offences—a great deal more serious than offences that would render the chairman of the commission unfit to hold that office. I hope that, in replying, the Minister will address the question of exclusion—the extraordinary procedure by which a person making a statement for the purposes of a disciplinary procedure can exempt himself from criminal proceedings at any level of seriousness. I hope that the Minister will address that point and not merely the most serious end of the range.

§ Lord Rooker
Perhaps I may deal with Amendment No. 158 first.
Currently, about a third of all complaints—about 10,000—are resolved locally. There is substantial and widespread support for this process, and that is why the Government are committed not just to retaining it but to extending its use.
However, local resolution will be available only where the conduct complained about, if proved, would not warrant criminal proceedings. So any admission relating to the matter being subjected to the local resolution process cannot be an admission of any criminal offence, let alone one punishable on indictment by a maximum term of imprisonment of five years or more.
Any admission relating to any matter not being subject to the local resolution process is admissible in any subsequent criminal, civil or disciplinary proceedings anyway. This would include some minor 225 cases, but it would also include some cases that would warrant disciplinary or even criminal proceedings as local resolution will not normally be available in such cases. It is essential for the appropriate authorities to have the power to investigate complaints about these cases, as otherwise they would not be resolved at all.
I accept that Amendments No. 158 and 161 are two sides of the same coin. Amendment No. 161 would make it impossible to take disciplinary action against a member of a force if that person had been acquitted in a criminal case. I cannot comment on the individual case mentioned by the noble Lord, Lord Dixon-Smith, but I can well understand the example given.
Police integrity is vital to public confidence. That a particular criminal offence was not proved in a criminal court does not mean that police misconduct did not take place. An officer might, for example, be acquitted of a particular criminal offence of assault. It might nevertheless be clear that he had acted in a manner likely to bring discredit on the force. It is essential that police misconduct be properly accounted for. Therefore, the option of bringing a matter before a disciplinary hearing is necessary.
The criminal standard of proof is "beyond all reasonable doubt", whereas the standard in a disciplinary hearing is based on the "balance of probabilities". This civil standard of proof was introduced to police disciplinary hearings to bring them into line with other forms of employment.
The evidence that exists in a case may not prove beyond reasonable doubt that a crime took place but it may well prove on the balance of probabilities that misconduct did. The person concerned should not be able to get away with the misconduct. A force member may not be found guilty of a crime in a court but could well be found guilty of breaching the code of conduct in a disciplinary hearing.
If the opposite were the case, the possibility is that the public would not have confidence in the system. It might be argued that the system had been rigged—that someone had been charged with an offence which on the face of it appeared serious but in regard to which there was no chance of a guilty verdict being reached in order to prevent the person being disciplined; so the person would end up being not guilty on both because he or she would never be charged with misconduct.
Although examples such as that given by the noble Lord can be unfortunate for the individuals concerned, any breach of the code of conduct should be dealt with. If it is not dealt with in court, it must be dealt with in the normal process.

§ Viscount Bridgeman
I am grateful to the Minister for satisfying our concerns on Amendment No. 158. I think that they are the concerns of my noble friend Lord Elton.

§ Lord Elton
I have a point to raise with the Minister, if I might—this is a sandwich speech!

§ Viscount Bridgeman
I give way to my noble friend.

§ Lord Elton
I think I follow the point made by the Minister, but perhaps I may give an illustration. If a 226 police officer is subject to a disciplinary procedure because he was in a pub instead of on the beat and makes an admission that he was in the pub, and if someone subsequently brings a charge against him for an assault that he could have carried out only had he been on the beat and not in the pub, would his admission be admissible? It is perhaps not the most felicitous example, and I am happy to hear the answer later. I merely want to be certain that the procedure in this provision will not impede procedures in court.

§ Lord Rooker
I think that the answer is yes. I apologise for being less than clear. I know that I have read all my notes more than once because they are marked up, but I obviously have a problem with one of my bullet points. I am reluctant to join up what may be two separate bullet points. I may have to write to the noble Lord. I shall certainly repeat one point that I made—which I probably had some difficulty delivering. Any admission relating to any matter not being subjected to the local resolution process is admissible in any subsequent criminal or civil disciplinary proceedings. I do not know whether that means that the answer to the noble Lord's question is yes, because the offence that he later described might be criminal. I may have to take advice and write to him on the specifics of his detailed question.

§ Viscount Bridgeman
I refer to the amendment to which my noble friend Lord Dixon-Smith has spoken. We are concerned about the possibility of double jeopardy. We very much look forward to reading what the Minister has said on the subject. Perhaps he will he good enough to write to us. In those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.

§ Lord Harris of Haringey
moved Amendment No. 161A: Page 12, line 18, leave out "Nothing in The noble Lord said: The purpose of the amendment is to highlight an important gap in the existing complaints arrangements which will continue to be an important gap in the future arrangements. It relates to complaints about the direction and control of a force rather than about a specific incident or particular actions.
I can imagine a number of circumstances in which the issue might be important and in which people might wish to frame complaints. For example, people might be concerned that a force was giving insufficient priority to road safety and might wish to make a specific complaint about how that decision was taken.
A rather different example might be a complaint that a chief officer or senior officer had in effect encouraged reckless behaviour in the way in which they had given direction and control to the officers under their command. That might relate to a general tone that was set over a period of time rather than to a specific act.
227 The problem when examining such cases is that it is unclear what route the complaint could take, either now or under the future arrangements. That is brought to mind particularly by a recent case in which someone wished to complain about a decision to appeal a court case in a civil action. The complainant was not clear who had taken the decision and chose, rightly or wrongly, to pursue a complaint about the direction and control of the force that led to that decision.
I make no comment on whether the substance of that complaint or the route that the complainant wished to follow were justified. However, when she approached the Police Complaints Authority, she was told that it could not pursue complaints about the direction and control of a force. The authority suggested that she should contact the Home Office. She then did that. The Home Office replied that it could not deal with the matter, but referred her helpfully in the direction of her local police authority. The local police authority had to point out that we could not pursue a matter in terms of the direction and control of the force and the approach that had been taken in that particular case.
Not surprisingly, the complainant found that extraordinarily frustrating. She wrote to many other people, including No. 10 Downing Street. Some noble Lords in the Committee tonight may have had letters or communications from the person concerned.
My point is not about that specific case but about the fact that there is no route by which someone can properly pursue a complaint about the direction and control of a force. My noble friend the Minister may be able to tell me what the route is. That would be an achievement that was beyond officials in the Home Office when they drafted their original reply to the complainant. However, I should be enormously grateful if such a reply could be put on the record, no doubt to be quoted on many future occasions.
Maybe my noble friend will suggest that there is a route in the Bill. It provides for the possibility of the Secretary of State issuing guidance to chief officers about the handling of such matters, but that seems to me also not to work. Any complaint about the direction and control of a force almost certainly relates to the direction and control that is set by the chief officer concerned, or by people acting on behalf of the chief officer, in which case complaining to the person who made the decision is probably not the way to achieve satisfaction.
Perhaps the best route is to direct such complaints to the police authority. I believe, however, that that would be an inappropriate solution to the problem. I should hope that the force's direction and control had themselves been approved by the police authority when it established the force's overall priorities and strategy.
We need essentially a single channel for such complaints. If we had one and someone wished, rightly or wrongly, to make a complaint about a force's direction and control, that complaint could be dealt with in a specific way. The new complaints body is the 228 logical place to deal with such complaints. If they were dealt with by any other body, we would find that people make a complaint, become frustrated with the outcome received under the new complaints procedure and subsequently turn the initial complaint into a complaint about the force's direction and control with a view to having it reheard. That would be unsatisfactory. That is why we need to have a single channel and we must deal with the matter explicitly. It is also why I have tabled this amendment and seek to clarify the matter. I beg to move.

§ Lord Bassam of Brighton
The noble Lord, Lord Harris of Haringey, has moved the amendment with his usual ingenuity, on which I congratulate him. We recognise that complaints about direction and control should be dealt with. It is also true that the principal function of a chief officer is the direction and control of the police force to which he has been appointed. The Government realise that complaints about direction and control need to be attended to.
The effect of the amendment is clear enough: it would bring complaints about direction and control within the new police complaints system. As I sat there, I tried to meet the challenge set by the noble Lord, Lord Harris, of devising another route of dealing with the matter, but I am afraid that, even with my knowledge and experience of these matters, I have not come up with an answer. I shall therefore have to join the sad army of Home Office officials who have not come up with one either.
We regard the IPCC—as I am sure the noble Lord doe—as being designed primarily to deal with cases of real or alleged misconduct. Complaints about issues such as direction and control are essentially complaints about management rather than conduct. Therefore, such complaints should usually be dealt with by the police.
The noble Lord, Lord Harris, anticipated one of the points that I was going to make in reply. He has spotted that Clause 14 already provides for the Secretary of State to issue guidance to chief officers on the handling of complaints about direction and control. Indeed, it goes further and places a duty on the chief officer to have due regard to that guidance when handling any such complaint. That seems to us to be right. As I sat there thinking, I also thought that in some circumstances the police authority might be the appropriate route. I think that I share the noble Lord's view on that.
We believe that any direction and control decision or action that might constitute misconduct will be covered by the new system. However, as the noble Lord has raised a perfectly sensible point, we are happy to take it away and give it further consideration. In some specific cases in which there is a particularly high level of public concern, it may be appropriate for the IPCC to have an investigatory role. However, as I am sure the noble Lord will appreciate, we shall have to give that very careful thought.
229 It is not an easy provision to frame. It also goes very much to the root of what a chief officer does. However, if we are bringing this type of issue within the IPCC's remit, perhaps we have been wise to seek to increase its staff. I can see circumstances in which a complaint of this nature could lead to an explosion in the number of complaints about the management and direction of forces more generally. It is a difficult issue for us to consider. Nevertheless, I make the commitment that we shall consider it further. As it is a particularly sensitive issue, the noble Lord, Lord Harris, others involved in police authorities and chief officer organisations will undoubtedly want to be carefully consulted on it so that it is pursued sensibly and with some consensus.
In the light of those comments, I hope that the noble Lord will feel able to withdraw his amendment.

§ Lord Condon
I sympathise with the concerns expressed by the noble Lord, Lord Harris, about the lack of a route. However, I also share the Minister's concern that, should Amendment No. 161A be adopted, it would significantly change the role of the IPCC. It would move it on from considerations of misconduct issues to considerations of management, choice and priorities. Those are all issues which should rightly be challenged and for which there should be a route to enable such challenge to take place. However, that would significantly change the nature of the IPCC, the nature of the staff and processes it would have to engage and the processes that would lead to judgments being made about chief officers' priorities and management. Although I am broadly sympathetic to the mischief the noble Lord seeks to remedy and the gap he seeks to fill, I would have some anxieties if the IPCC were the chosen vehicle.

§ Lord Elton
I am informed by my own Front Bench that Report stage will take place on 8th and 9th April. I hope that that is long enough for a proper consultation to be carried out on what is a large and tricky business.

§ Lord Bassam of Brighton
The noble Lord makes a perfectly sensible point. This is a broad issue which has been properly raised. If there is a cautious note to my response it is precisely because of the core management issues which the noble Lord, Lord Condon, raised to which we must give careful consideration. Bringing that matter within the remit of the IPCC could lead to a massive explosion of interest. I am not saying that all complainants are vexatious as they are clearly not. It is an entirely legitimate process but it goes to the heart of the direction and management of a police service. We must pay careful regard to that as chief officers need to know that they can manage and lead with confidence. That is an important consideration.

§ Lord Bradshaw
Before the noble Lord, Lord Harris, replies, I should say that there has been one such case in my police authority. The case concerned the chairman of the police authority but involved a similar 230 issue of management to that which has already been mentioned. I was one of the people who dealt with the matter. I had no prior knowledge of it. I refer to a management issue as opposed to a conduct issue. A conclusion should be reached as regards the person involved. That may not satisfy the complainant. However, I think that in the case mentioned by the noble Lord, Lord Harris, it is possible that nothing will satisfy the complainant. One should review the management of a case thoroughly and independently. For example, the chairman of another police authority or the chief constable of another force could undertake the review.

§ Lord Bassam of Brighton
I do not see that the amendment moved by the noble Lord, Lord Harris, would cover the case that the noble Lord, Lord Bradshaw, raises. I should have thought that that was a member issue which fell to be discussed or resolved within a member framework rather than a management framework to which the amendment is directed.

§ Lord Harris of Haringey
I am enormously grateful to my noble friend Lord Bassam of Brighton for the tone of his response. I assure him that I did not seek to be ingenious in the proposition that I made. I simply wanted to make clear that it was possible to pursue complaints on direction and control through this mechanism. I accept that that would lead to difficulties if it meant that every management judgment could be questioned. However, that situation could be addressed by clear guidance which spelt out that if a complaint were to be upheld it would have to he demonstrated that the direction and control were such that no reasonable chief officer of police would have taken the route concerned, or something of that nature. I do not think that it is beyond the skill of officials in the Home Office to find a way to cover such matters. I suggest that one will often find that important elements relate to these matters, in particular as regards complaints. An element of a complaint may be that there was inadequate supervision of a particular officer, not so much through the fault of the individual officer who should have been supervising, but because force policy did not permit there to be such adequate supervision or that there was inadequate back-up, or things of such nature. It would be wrong to exclude them from this process because if we do so we are in danger of the new procedure becoming as discredited in the eyes of many complainants as the existing arrangements.
I do not want to get into a situation where people will seek at every stage to second guess proper judgments made by chief officers. That would clearly be inappropiate. But I believe that there has to be some route whereby such matters can be challenged. Provided that clear guidance is given to exclude those sorts of complaints which are about the proper exercise of judgment and which enable an investigation into matters where it is suggested that in fact direction and control has been faulty, then it is important that it is included as part of this Bill. I look 231 forward to watching the consultation process in action and to hearing the government's proposals at a later stage. For the time being I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.

§ Lord Bassam of Brighton
moved Amendment No. 162: Page 12, line 24, after "officers" insert "and to police authorities The noble Lord said: In moving this amendment I shall also speak to Amendment No. 163. Clause 14 provides for the Secretary of State to issue guidance to chief officers for the handling of complaints about direction and control, the very issue we have just been discussing. It also places a duty on chief officers to have due regard to this guidance when handling such complaints.
The intention of the two amendments is to enable the Secretary of State to issue the same guidance to police authorities and to place the same duty on them to have due regard to it. The principle function of a chief officer, as I made plain earlier, is the direction and control of the police force for which he has been appointed. Direction and control are core management issues such as the setting of overall strategic direction or policing priorities. So a complaint against direction and control is essentially a complaint against management procedures, practices and, fundamentally, decisions.
For these reasons the chief officers should be responsible for dealing with complaints about direction and control. However, a police authority also has a responsibility for the handling of these complaints. The principle function of a police authority is to secure the maintenance of efficient and effective policing within its force area and it does that through the chief officer. Therefore, in our view it is necessary to ensure that complaints about direction and control are dealt with effectively and efficiently. It is for those reasons that we have brought forward these amendments.
While recognising that in part they deal with some of the issues which have been raised in the earlier debate, I also recognise that they do not go quite as far as the noble Lord, Lord Harris, sought. However, we are very mindful of these issues. I hope that the amendments help to give Members of the Committee greater confidence in what we are seeking to achieve through the independent police complaints structures. I beg to move.

§ Viscount Bridgeman
We welcome this small, if limited, recognition of the tripartite arrangements and support the amendment.
On Question, amendment agreed to.

§ Lord Bassam of Brighton
moved Amendment No. 163: Page 12, line 27, after "officer" insert "and of a police authority The noble Lord said: I have spoken to this amendment. I beg to move.
On Question, amendment agreed to.

§ Lord Dholakia
moved Amendment No. 163A: Page 12, line 28, at end insert— ( ) Every police authority in carrying out its duty with respect to the maintenance of an efficient and effective police force, and inspectors of constabulary in carrying out their duties with respect to the efficiency and effectiveness of any police forces, shall keep themselves informed as to the working of this section. The noble Lord said: This amendment, tabled in my name and that of my noble friend Lord Bradshaw, is designed to ensure that there is a legal process and structure to oversee complaints regarding direction and control. I welcome Clause 15, which requires chief officers, police authorities and Her Majesty's inspectors of constabulary to keep themselves informed as to the working of the complaints system. We agree with that. It is important. However, we do not believe that it goes far enough, and I shall explain the reasons for that belief.
Issues relating to complaints, whether about alleged conduct of police staff or direction and control, go to the heart of the efficiency and effectiveness of the force and to the heart of public confidence in policing—a point recognised by Section 77 of the Police Act 1996, which ties the oversight of complaints issues to the statutory duty of police authorities to secure the maintenance of an efficient and effective police force. That enables police authorities not only to monitor what is happening but to act where the handling of complaints impacts on efficiency and effectiveness.
This amendment is based on the wording of Section 77 of the Police Act 1996, which, of course, will be repealed by this Bill. We have tabled the amendment under Clause 14, but we could equally have tabled it under Clause 15. The difference between this wording and that contained in Clause 15 is minor but important. It will ensure full and proper oversight and accountability of complaints. The public should demand nothing less.
I hope that the Minister will feel able to accept the spirit of this amendment. I appreciate that he may want to consider how best to reflect it on the face of the Bill and may find a better way of doing so. The key issue is the principle of effective oversight of this provision and clear accountability to local communities. I would welcome a commitment on the part of the Government to reconsider this amendment and table further proposals at Report stage. I beg to move.

§ Lord Rooker
The effect of Amendment No. 163A is to place on police authorities and inspectors of constabulary an obligation to keep themselves informed about the working of Section 14. As the 233 noble Lord, Lord Dholakia, has noted, police authorities, inspectors of constabulary and chief officers are already placed under such an obligation by Clause 15(1) and (2). Those subsections impose on police authorities, chief officers and inspectors of constabulary an obligation to keep themselves informed about all matters with respect to any provision in Part 2, anything done for the purposes of those provisions, and to act or refrain from acting in respect of matters that have arisen under this part, but which have not yet been complied with or have been contravened.
Therefore, the amendment is superfluous. There is no need to place it anywhere in the legislation, ft is clearly there in a much wider form than it would be just in Amendment No. 163A.

§ Lord Dholakia
I am grateful to the Minister for his explanation. I shall consider the wider implication of what he has suggested and, if not happy, return to the matter on Report. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 14, as amended, agreed to.
Clause 15 [General chafes of police authorities, chief officers and inspectors]:

§ Viscount Bridgeman
moved Amendment No. 164: Page 17, line 13, leave out subsection (2). The noble Viscount said: Surveillance is a sensitive issue, which raises legitimate concerns about the infringement of human rights. The Acts in question were subject to close scrutiny when passing through Parliament. The Regulation of Investigatory Powers Act 2000 in particular was controversial in its reach. Primary legislation, especially on such a sensitive topic, should not be amended by ministerial diktat. If changes are needed, they should be brought before Parliament, where they can be subjected to proper scrutiny and debate. We regard this as an important amendment and I shall be very interested to hear the Minister's reply. I beg to move.

§ Lord Rooker
Clause 19 will give the Secretary of State the option of providing, by regulations, the complaints commission with the ability to use powers and techniques that fall within the Regulation of Investigatory Powers Act 2000. The amendment would prevent the Secretary of State being able to provide the complaints commission with those powers.
We believe that the power is required to ensure that the complaints commission, when dealing with serious criminal offences that are alleged to have been 234 committed by police officers, has similar powers to those given to the police under the Regulation of Investigatory Powers Act.
To meet recommendations from the Home Affairs Committee and the Stephen Lawrence inquiry, along with longstanding demands from the public and police, the complaints commission will be an investigative body. It will be able to investigate criminal and disciplinary allegations against police officers on its own, separately from the police. As I said earlier, it will decide who to employ in that regard. This will include all serious crimes that are committed by police officers, such as serious corruption cases, rape and murder. That goes well beyond the current police complaints commission rules.
For the complaints commission to be a fully effective, independent alternative to the police in carrying out those types of investigations, it is necessary that it has the same capabilities and powers. It is very likely that in some cases, such as serious corruption, there will be a need for surveillance or similar techniques if the complaints commission is to conduct an effective investigation. Therefore, Clause 19 provides for the use by the complaints commission of the same investigatory techniques as those that are available to the police. It will allow the Secretary of State to amend the Regulation of Investigatory Powers Act and the Police Act 1997, enabling the complaints commission to use surveillance and covert human intelligence sources techniques, as set out in Parts II and IV of RIPA and Part III of the Police Act.
The regulation-making power in the clause will he subject to the affirmative resolution procedure to ensure sufficient parliamentary scrutiny. That was accepted as appropriate by the Delegated Powers and Regulatory Reform Committee.
The IPCC will have its own investigative teams, which will be made up of a mix of seconded police officers and civilian investigators. Those teams will receive all the necessary training that will be required for them to use those investigative techniques. They will be subject to the same responsibilities and procedures as the police in using the powers. It is expected that only members of the complaints commission will be able to authorise the use of those techniques.
The complaints commission will have to build up its expertise to be capable of undertaking complex investigations that require the use of such powers, and we expect it to work closely with the police on such investigations, particularly early on in its life. However, it will be open to the complaints commission to take the view that, for the purpose of independence and public confidence, it should be able to undertake certain kinds of investigations separately. It is therefore considered that an order-making power allowing the Secretary of State to provide those powers is necessary.
Today, the Joint Committee on Human Rights published its latest report, which basically amounts to a very long letter addressed to me. It contains 17 questions, some of which relate to this clause and the 235 power. I shall obviously reply urgently to it, but I should not like to do that off the cuff tonight, using a few bullet points. I could do so, but it would not help our debate.
I hope that I have given the Committee a coherent explanation of why these powers are needed for the complaints commission. If anything will bring home to the public and to noble Lords in this Chamber the fact that this complaints commission is not the Police Complaints Authority, the knowledge that is has such powers to use will, I believe, make that crystal clear.

§ Lord Elton
Before my noble friend replies, perhaps I may ask the Minister a question. As the noble Lord mentioned a word that occurs in a subsection of the clause, I should very much appreciate elucidation. Subsection (1)(b) refers to, the conduct and use of covert human intelligence sources". If the word "human" had not been included, I should have presumed that I knew the nature of "covert intelligence sources". Can the Minister—either now or in writing at a later date—tell me what sort of intelligence sources are ruled out by the inclusion of the word "human" in that subsection?

§ Lord Rooker
I shall most certainly obtain an answer to that question and write to the noble Lord.

§ Viscount Bridgeman
I am most grateful to the Minister for his full explanation. We are particularly reassured that the commission will have an independent role. We also look forward to the reply on the formidable document that the noble Lord has received from the JCHR. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 19 agreed to.
Clause 20 [Duty to keep the complainant informed]:

§ Viscount Bridgeman
moved Amendment No. 165: Page 18, line 27, after "person" insert "(other than a person against whom a complaint is upheld) The noble Viscount said: It is right that the Home Secretary should be able to keep confidential information that might adversely affect an individual—for example, a complainant or an accused—if he is then cleared. However, a guilty person does not deserve the protection of secrecy and should not benefit from the exceptions. I beg to move.

§ Lord Rooker
The Government are committed to creating a police complaints system in which there is the maximum degree of openness but also a proper regard for the rights of individuals, including the people about whom the complaint has been made. The provisions in Clause 20 are intended to ensure that complainants are kept informed both during and after investigations. However, the regulations made under this clause will not apply during or after disciplinary proceedings. There are separate provisions under Clause 32 for complainants to be involved in disciplinary proceedings. Complaints can only be 236 either upheld or dismissed during disciplinary proceedings. That being the case, the amendment is quite unnecessary.
Moreover, it is worth stating that if this amendment had the intended effect, it might lead to all information on the person complained about being disclosed to the complainant, even if it had nothing to do with the complaint. Of course, that could lead to an unnecessary breach of privacy of the person about whom the complaint was made.

§ Viscount Bridgeman
I thank the Minister for his reply, which will require a certain amount of study. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 20 agreed to.
Clause 21 [Power of the Commission to issue guidance]:

§ Lord Bradshaw
moved Amendment No. 165A: Page 19, line 10, at end insert "and before giving such approval, the Secretary of State shall consult—

(a) persons whom he considers to represent the interests of police authorities in England and Wales; and

(b) persons whom he considers to represent the interests of chief officers of police of forces maintained by those authorities"

The noble Lord said: By moving this amendment we seek to establish whether the police authorities, and the chief officers of police, will be consulted by the Secretary of State before the guidance that he issues to the complaints commission is circulated and put into effect. I beg to move.

§ Lord Bassam of Brighton
These amendments would simply place an obligation on the Secretary of State—that is understood—to consult when drawing up guidance. We are happy with that proposal and are willing to take it away and give it fair consideration. It is a matter that we want to perfect, and I am fairly optimistic that we can return on Report with something that probably reflects what the noble Lord is seeking to put on to the face of the Bill this evening. However, I ask him to withdraw the amendment so that we can give it further careful consideration. That certainly accords with what we want to do and with the spirit of our approach to these matters.

§ Lord Elton
Before the noble Lord withdraws the amendment, and in view of the emollience which he seems to have taken from the Minister, I want to ask the noble Lord, Lord Bradshaw, a question. I see that the Secretary of State being required to consult would have a trickle-down effect. But, in fact, would one not expect that the commission would consult before constructing a requirement? That would be the prudent thing to do. I put that idea before him.

§ Lord Bradshaw
I believe that the Secretary of State is the person who issues the guidance. While it is possible that consultation will take place between the commission and police authorities or chief officers 237 beforehand, I do not believe that we are absolutely certain that that will be the case. That is why I moved the amendment. However, I am happy with the assurances that the noble Lord, Lord Bassam, has given us and beg leave to withdraw the amendment.

Lord Renton
I am glad to hear the noble Lord, Lord Bassam, say that he will take away the matter and reconsider the contents of Clause 21 because, quite frankly. I find the whole issue rather confusing. It concerns a power given to the commission to issue guidance to police authorities, chief officers and people serving with the police other than their chief officers. But it also requires the approval of the Secretary of State for the issue by the commission of guidance. Then subsection (4) becomes very complex in detailing the nature of the guidance and the way in which it is to be given. Although I realise that it is anticipating the next amendment to be taken—Amendment No. 166, which seeks to leave out paragraph (c) —I believe that it would be wise of the Government to reconsider the complexity that will arise in relation to the giving of this guidance. I believe that the whole clause could well be simplified.

§ Lord Bassam of Brighton
I am grateful for the noble Lord's intervention. I believe that our reconsideration of the clause is rather more limited, and I am certainly not in a position to be quite as emollient as perhaps the noble Lord, Lord Renton, would wish us to be. My noble friend Lord Rooker and I are brothers in emollience today and we share that emollience generally. We believe it to be a prudent course. But we have given a limited commitment and are happy to give the point raised by the noble Lord, Lord Bradshaw, fair consideration.
Amendment, by leave, withdrawn.

§ Viscount Bridgeman
moved Amendment No. 166: Page 19, line 19, leave out paragraph (c). The noble Viscount said: Amendment No. 166 echoes the concerns of my noble friend Lord Renton. It is a probing amendment, I hope of the customary emollience of the Bill. The section provides that the commission has the power to issue guidance in relation to whether or not a complaint is suitable for local resolution. It clearly has to be right that some of the more trivial complaints can be dealt with at the local level and resolved at the local level. Where those complaints are not resolved to the satisfaction of the complainant, there must be some basis for saying that the individual has the right to have that complaint escalated, as is the case, for example, with regulatory ombudsmen. The problem is that guidance is a blunt instrument. Are certain categories of complaint to be excluded from the commission's remit? When is a complaint to go to the commission?
If one proceeds on the assumption that local resolution is preferable to the police officer to an investigation by the commission, is it right that the 238 police should interpret these regulations? Would it not be better to adopt the ombudsman approach that all complaints are dealt with locally unless the outcome is unsatisfactory in which case they are escalated? In this case, the commission could have the power of review over procedures and power to call upon complaints documents at random to ensure that matters are properly dealt with, with all the more serious complaints being dealt with automatically by the commission. I beg to move.

Lord Renton
Before the noble Lord replies, I feel that I should make a further point about paragraph (c), which deals with two separate matters. One such matter is about guidance being given on how to decide whether a complaint is suitable for being subjected to local resolution. Then we come on to an entirely different matter, which I should have thought would be better put, as a matter of drafting, into a separate paragraph; that is, guidance about the information to be provided to a person before his consent to such a resolution is given. Those are two separate matters and could well be put into separate paragraphs.

§ Lord Rooker
As regards the point made by the noble Lord, Lord Renton, subject to the expert team which backs us up, and the esteemed parliamentary draftsmen in Whitehall, with whom I have had many a clash—I have tremendous respect for the work that they do—we shall consider paragraph (c). The noble Lord, Lord Renton is right. It appears to contain two entirely separate issues, which probably should he separate paragraphs. I shall take advice on that and report back to the noble Lord either by letter or by tabling an amendment.
Amendment No. 166 would remove from the complaints commission the power to issue guidance to the police about how to decide whether the complaint is suitable for local resolution and about the information to be given to a complainant before he or she agrees to an attempt at local resolution of his or her complaint. As I said earlier in our debates, currently, about one-third of complaints are resolved locally; that is about 10,000 of approximately 30,000. There is much to be said for dealing with complaints as locally as possible. There is widespread support for this process. We want to extend its use.
The legislation provides the framework within which decisions with regard to local resolutions should be made. The guidance will provide clarification and facilitate the making of those decisions.
The specific aims of the guidance issued in relation to this provision will be twofold. First, all police forces should know when they should be attempting local resolution straightaway, when they should be applying to the IPCC for approval to attempt local resolution, and when local resolution should not even be considered. There are some complaints which are just like an elephant on a doorstep; one would recognise it when one saw it even though one could not necessarily write a description of it. Without this there would be a real danger that officers who committed similar acts of misconduct could be dealt with very differently just because they were members of different forces.
239 Secondly, complainants should understand what the process for local resolution should be, as appeals following attempted resolution can he made only on the grounds that the process has not been followed properly. Otherwise, complainants might feel that they have not been treated fairly. That could seriously undermine public confidence in the system as a whole.
The police as a rule appreciate guidance. The guidance provided for in both of these subsections—that is in relation to the subsections which refer to Amendment No. 165B that was not moved—will be essential in ensuring that there is consistency of practice across the country with regard to both dealing with conduct matters and local resolution. That said, there is clearly a case which has been made most powerfully by the noble Lord, Lord Renton, for us to look at the construction of this part of Clause 21 and to report back to the Chamber.

§ Lord Elton
The Minister said that if my noble friend's amendment was made it would remove the power from the commission to issue guidance on the level of complaint which can be resolved locally, But that is not how I read the Bill. The introduction to Clause 21(4) states: Without prejudice to the generality of the preceding provisions". The first of the preceding provisions is Clause 21(1): The Commission may issue guidance—

(a) to police authorities,

(b) to chief officers, and

(c) to persons…

concerning the exercise or performance, by [them]…of any of the powers or duties specified in subsection (2)". The whole of subsection (4) is unnecessary if the matter is not exclusive but only permissive. Subsection (4) does say, may be issued under this section". The commission is still at liberty to give other guidance. I wonder why so much work has been done before the body is formed in telling it what it should be providing guidance on. I daresay that subsection (4)(f) is required because that is, as it were, internal to the Secretary of State and the commission, but I cannot see that the rest of it is needed. I do not want a long answer now. I just ask the noble Lord to have the matter in mind when he is thinking about the structure generally.

§ Lord Rooker
I am happy to confirm that. I do not want to be critical, but it is sometimes the case that one has an idea and it ends up as a 10-page schedule, which was not quite what one intended. We shall look at the matter again. In order to look at the suggestion of the noble Lord, Lord Renton, we shall have to look at the construction of paragraphs (a) to (f) of subsection (4).

§ Viscount Bridgeman
My Lords, in the later stages of the Bill we will be interested to know exactly what the guidance comprises. The Minister was concerned that there should be uniform treatment between police forces. It is important that the guidance is fittingly 240 comprehensive and specific in that way. With those remarks, we shall study the Minister's reply carefully. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 5 agreed to.
Clause 22 [Regulations]:

§ Lord Bradshaw
moved Amendment No. 166B: Page 19, line 46. at end insert— ( ) Before making any such regulations, the Secretary of State shall consult—

(a) persons whom he considers to represent the interests of police authorities in England and Wales; and

(b) persons whom he considers to represent the interests of chief officers of police of forces maintained by those authorities."

The noble Lord said: This is another case in which we think that it might be worth stating that consultation should take place under the tripartite arrangement. I beg to move.

§ Lord Bassam of Brighton
We dealt with this matter in an earlier debate on Amendment No. 165A, so it is really for the noble Lord to withdraw the amendment.

§ Lord Bradshaw
I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.

§ Viscount Bridgeman
moved Amendment No. 167: Page 20, line 3, leave out "may" and insert "shall The noble Viscount said: The amendment would make the one-word substitution of "shall" for "may". The clause deals with matters that are fundamental to the operation of any effective complaints system. Such measures need to be in place, and if they are not to be included in the Bill, there should be an obligation on the Home Secretary to bring forward the necessary regulations. It is not good enough to leave such important matters to the decision of the Secretary of State. I beg to move.

§ Lord Rooker
The Secretary of State will be able to make a wide range of regulations for procedures to be followed in the new police complaints system. This list simply gives an indication of some provisions that are most likely to be made by such regulations. The Secretary of State will not necessarily make regulations for all of them and he may make some that are not listed in the clause. It is appropriate for him to have discretion over such procedural issues.
Of course, when the Home Secretary makes regulations he will set out the cases in which, and the extent to which, they will apply; otherwise they would probably be unworkable. It is unnecessary to spell that out explicitly for just one matter listed in Clause 22(2) for which regulations may be made, as does Amendment No. 168. I hope that the noble Viscount 241 will accept that that is the normal way in which things are done. In this case, a little discretion is needed. As I said, the regulations may not be made for subjects that are listed in the Bill.

§ Viscount Bridgeman
I understand the Minister's reply and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.

§ Viscount Bridgeman
moved Amendment No. 169: Page 21, line 31, leave out "For" and insert "At the end of The noble Viscount said: In moving the amendment, I wish to speak also to Amendments Nos. 170,171 and 172. The Minister's earlier reply regarding the National Criminal Intelligence Service covered Amendment. No. 170. Amendment No. 171 is a probing amendment. We want to know why a comparable complaints system for Scotland and Northern Ireland should be left to the Secretary of State's decision. It is surely needed as much in those countries as in England and Wales. If the Home Secretary has the power to introduce such a system—it is clear from the clause that he has—he should do so or explain why he is imposing a system on England and Wales that he does not think good enough for the Scots and Irish. I beg to move.

§ Lord Rooker
Clause 23 deals with the National Criminal Intelligence Service and the National Crime Squad. The amendments, whether probing or not, do not appear to result from any difference in policy. They appear to be designed to achieve the same result as Clause 23 by a different means and seem to relate only to the NCIS aspects of Clause 23. There is something technically defective about them and I am seeking advice and further particulars from my learned friends.
It is important that the National Criminal Intelligence Service and the National Crime Squad are brought fully within the complaints commission regime. There is no question about that. The amendments do not result from any particular change.
As regards Scotland and Northern Ireland, I am at a complete loss for an answer. However, in Scotland devolved matters are for the Scottish Parliament to consider, and Northern Ireland has its own system, which is why it is not covered by the Bill.

§ Viscount Bridgeman
Perhaps we can take the matter up with the Minister in correspondence outside proceedings on the Bill. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.

§ Lord Rooker
moved Amendment No. 173: Page 22. line 11, at end insert "there shall be substituted— 242 The noble Lord said: This is purely a drafting amendment.
On Question, amendment agreed to.
Clause 23, as amended, agreed to.
Clause 24 [Forces maintained otherwise than by police authorities]:

§ Lord Rooker
moved Amendment No. 176: Page 23, line 11, at end insert— ( ) An agreement or order under this section in relation to any body of constables may contain provision for enabling the Commission to bring and conduct, or otherwise participate or intervene in, any proceedings which are identified by the agreement or order as disciplinary proceedings in relation to members of that body of constables. The noble Lord said: Clause 24 enables the National Criminal Intelligence Service, the National Crime Squad and other forces to be brought under the proceedings corresponding or similar to those provided under Part 2 relating to complaints and misconduct. However, there are issues to do with the conduct of disciplinary proceedings that fall outside Part 2.
There is a provision in Clause 32 which relates to the conduct of disciplinary hearings that gives the complaints commission a right to participate in disciplinary proceedings following an investigation into a complaint or other conduct matter. That provision will enable the commission to present, or instruct counsel in presenting, the case against the person facing charges or to participate or intervene in some other way.
The amendment will enable that provision to be included in procedures for any other non-Home Office force—for example, the British Transport Police—that falls under the provisions of the clause if it is appropriate and desirable. Equivalent provision is made for NCS and NCIS in the new clauses to be inserted. We will come to those amendments on day four of the Committee stage. I beg to move.

Lord Renton
At this late hour, I should perhaps be hesitant about saying what I have to say. The Government cannot be prevented from moving and carrying the amendment. However, the amendment does have implications. It means that the commission will not merely be a commission for receiving and considering complaints; it will be able to use its own initiative to investigate matters that have not been referred to it. I do not say that that is wrong, but I think the Minister should bear in mind that that is an important consideration which will make the work of the commission even more of a whole-time job than otherwise it would be.

§ Lord Rooker
The noble Lord, Lord Renton, is absolutely right. In the debate on Second Reading we dealt with the whole Bill. Many issues were raised, some of which were not contained in the Bill. References were made to the provisions of Part 2 243 covering the independent police complaints commission to which I responded, although I accept that I spent only a small part of my speech on it.
There is no question that there has been a good degree of consensus in the Committee about the proposal for a new complaints commission. However, no one has made a speech formally setting out the power of and the work to be undertaken by this authority. At times I have tried to use my extensive notes to put points on to the record in order to make it absolutely clear that the commission will not be the Police Complaints Authority. That was clearly indicated earlier, given the powers conferred under the Regulation of Investigatory Powers Act 2000.
The commission will be a powerful organisation, independent, in charge, able to initiate its own activities and able to conduct investigations in a way that the Police Complaints Authority has never been able to do.
On Question, amendment agreed to.
Clause 24, as amended, agreed to.
Clause 25 [Conduct of the Commission's staff]:

§ Viscount Bridgeman
moved Amendment No. 177: Page 23, line 38, leave out "may" and insert "shall The noble Viscount said: I am aware that the Minister has referred to the Secretary of State's discretion in his remarks on Amendment No. 167, but this amendment refers to the commission's work itself.
The commission's work will form an important part of a properly functioning police service. People who complain about the police or police officers who are complained against must be able to feel that they have some remedy if there is a miscarriage of justice. Thus there needs to be a comparable complaints system in respect of commission staff. I should be grateful for the Minister's comments as regards whether this should be left to the discretion of the Home Secretary. I beg to move.

§ Lord Bassam of Brighton
I rather suspect that the noble Viscount will be quite pleased with what I am about to say; I hope so. Amendment No. 177 seeks to place an obligation on the Home Secretary to make regulations providing for a complaints system for IPCC staff. I can announce to the Committee that we have every intention of making those regulations. For that reason, I am happy to advise the Committee that we shall accept the amendment. The noble Viscount, with his eloquence at this late hour, has achieved a direct hit.
I do not imagine the noble Viscount was being remiss in not moving his other two amendments in the grouping, but I must assume that he had intended to do so. However, I have to say that I cannot be so accommodating in respect of Amendments Nos. 178 and 179.
Amendment No. 178 is not appropriate as the regulations will either set out the process as a whole or apply the provisions on complaints against police officers for IPCC staff with or without modification or 244 a mixture of both—I hope that that makes sense. It would be inappropriate to tie the Home Secretary's hands over the way in which the regulations are to be drafted.
Amendment No. 179 probably arises from a grammatical misunderstanding. The regulations will not "apply to" the provisions made by or under Part 2. However, they may "apply" any provision made by or under Part 2 to complaints against commission staff. I suspect that that will clarify any misunderstanding over the drafting.
It is a case of two to one on this grouping. I offer my congratulations to the noble Viscount.

§ Viscount Bridgeman
I was quite right not to push my luck and I am grateful to the Committee for overlooking the fact that I did not move the other two amendments in the grouping. I am most grateful to the Minister.

§ Lord Elton
Will the Minister use this opportunity to illuminate the situation in regard to the words, (including provisions modifying this Part)"? I may not have followed what he said, but it appears to me that the Secretary of State has here a kind of internalised Henry VIII power to alter the provisions we have just agreed to. I notice that the clause is listed in the report of the Select Committee for the scrutiny of delegated powers as having had a suitable level of parliamentary scrutiny, but I cannot see in the clause where that scrutiny is. Can the Minister tell me what form the order will take? Will it be a negative or affirmative order, or what? If he would rather tell me that in time for the Report stage, at this late hour I am perfectly content for him to do so.

§ Lord Bassam of Brighton
If the noble Lord is happy for us to check and think about that, we shall make sure that he and other noble Lords involved in the debate know about our decision before Report stage.
On Question, amendment agreed to.

§ Viscount Bridgeman
moved Amendment No. 180: Page 24, line 10, after "Part," insert "after consultation with the Police Complaints Authority and, if appropriate, the Commission, The noble Viscount said: In moving the amendment, I shall speak also to Amendments Nos. 181 and 182. Clause 26 is oddly worded in that it seems to give the Home Secretary the power to order the transfer of property from anyone at all. It is presumably intended to allow the transfer of property from the existing Police Complaints Authority—or, possibly, a police authority—to the commission. I should be grateful if the Minister could clarify this point. I beg to move.

Lord Renton
I hope that my noble friend Lord Bridgeman will forgive me. I had rather hoped that he 245 would not move Amendment No. 180. As he has, I must express some doubt about its value. I do not think that we need to elaborate the rather complex procedures that will follow with a further requirement that the Police Complaints Authority, and, if appropriate, the commission, should be consulted. I do not see the need for that. However, I agree with him that we should leave out, including provision modifying this part". Amendment No. 182 is a wise one.

§ Lord Elton
With some apology I should tell the Minister that he will find my query much easier to understand if he realises that I was addressing it to this group of amendments and not to the previous group. I apologise.

§ Lord Rooker
I am grateful to the noble Lord. I hope that what I am about to say will help him. The effect of Amendment No. 180 would be to place an obligation on the Home Secretary to consult the Police Complaints Authority, and, if appropriate, the independent police complaints commission, on any commencement order bringing the provisions of this part into force.
It is quite unnecessary for such an obligation to be placed on the Home Secretary in regard to this power. The power is limited to making transitional provisions and savings. It is likely that the Home Secretary would consult the Police Complaints Authority and, if appropriate, the new police complaints commission, in any case.
Amendment No. 181 seeks to remove from the Home Secretary the power to modify this part in making these transitional provisions. However, such a 246 power is standard and should be retained. It is limited to transitional arrangements and may well be helpful in facilitating the process of bringing the provisions in this part of the Bill into force. The Delegated Powers Committee had no objection to the Home Secretary being granted this power.
Amendment No. 182 is also not appropriate. It may be necessary for some property, rights or liabilities to be transferred to the independent police complaints commission. The provision as it stands achieves this. The power can be used only in connection with the establishment of the independent police complaints commission. It would not be appropriate—nor is it intendedv—to transfer property from police authorities to the new independent police complaints commission.

§ Viscount Bridgeman
I am grateful to the Minister for his reply to this amendment and to Amendment No. 181. I note what he says about Amendment No. 182. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.

§ Lord Bassam of Brighton
I beg to move e that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.
House adjourned at twenty-two minutes past ten o'clock.