HL Deb 07 March 2002 vol 632 cc479-520

8.33 p.m.

House again in Committee.

Lord Rooker

Perhaps I may clarify the end of our previous debate on Clause 33(7). In order to avoid wasting time at Report stage it would be for everyone's convenience if I could briefly outline the position having now taken advice. There was confusion and I was partly responsible for it.

Clause 33(7) has the effect that where an existing police power is conferred on a designated person which comes with a power to use reasonable force when it is exercised by a constable, the designated person will also receive a power to use reasonable force. For example, if the power under the Police and Criminal Evidence Act to take fingerprints or to conduct a search is conferred on a designated person, that person will have a power to use reasonable force in that existing power.

It will be up to the chief officer whether those powers are conferred. If they are, the civilian will have the power to use reasonable force, if necessary. That is only sensible as they would otherwise commit an assault on a detainee if consent to having fingerprints taken or being searched was not given or was withdrawn. However, Clause 33(7) does not confer an automatic right to use reasonable force in connection with the powers in Schedule 4, which are not existing police powers but which are readily crafted for civilians.

This includes the power to detain while waiting for a police officer, which is available to community support officers under Schedule 4(2). The power to detain will be available only if the chief officer decides that it should be. The power to use reasonable force to enforce that detention under Schedule 4(4) will also be available only if the chief officer decides that it should be. I hope that that clarifies the situation.

Lord Marlesford

Is it in order to ask the Minister a question on that statement?

Noble Lords


Schedule 4 [Powers exercisable by police civilians]:

[Amendments Nos. 202 and 203 not moved.]

Lord Dixon-Smith

moved Amendment No. 204: Page 110, leave out lines 26 to 29. The noble Lord said: I am grateful to the noble Lord, Lord Rooker, for his explanation of a matter that is not dealt with on the Marshalled List. I will study it, as I believe will everyone here. I envisage some poor community support officer having to explain the situation when he tries to do something on the street.

Amendment No. 204 introduces a serious question because it seems to call into question what is the nature of an offence. The Bill, as drafted, at paragraph 2(6)(b) on page 110 states that it is, an offence the commission of which appears to that person to have caused … injury, alarm or distress to any other person; or — the loss of, or any damage to, any other person's property; but a designation applying this paragraph to any person may provide that an offence is not to be treated as a relevant offence by virtue of paragraph (b) unless it satisfies such other conditions as may be specified in the designation". If one tries to abbreviate that, what it says is that an offence is not an offence unless it is designated as one. I find that a rather convoluted way of drafting legislation and cannot resist asking the Government precisely what it means. This is a probing amendment. I beg to move.

Lord Rooker

I shall do my best to put this on the record. It is a problem when one amendment in a group is moved because my notes are necessarily comprehensive for all the amendments. While I shall speak to Amendment No. 204, some of the preceding paragraphs which I am not going to use may have been relevant.

As far as concerns Amendment No. 204 the Government believe that they must retain local flexibility. The ability to treat an offence as a relevant one, subject to conditions specified in the community support officer's designation, is part of that flexibility. For example, the conditions may limit relevant offences to those offences witnessed by the community support officer or exclude certain offences or categories of offence.

The Metropolitan Police have argued strongly for provision to be made for community support officers to exercise a range of powers, including the power to detain and, where necessary, use reasonable force if they are to be effective in dealing with low level disorder. That role will be enhanced if community support officers are able to act in support of the police.

Furthermore, community support officers can also operate as professional witnesses in certain cases. I hope that those paragraphs will satisfy the noble Lord. If not, I shall write to him unless he wishes to return to this at a later stage.

Lord Dixon-Smith

I am grateful to the Minister for his explanation. I did not understand the original paragraph and I am not entirely sure that I have understood his response. However, I shall study it and seek further advice sufficient to make the position plain. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 205 to 216 not moved.]

Lord Bradshaw

moved Amendment No. 217: Page 118, line 14, leave out paragraph 24. The noble Lord said: Paragraph 24 on page 118 of the Bill relates to intimate body searches. We are concerned that intimate searches may be carried out by community support officers. We believe that that goes rather too far. If someone needs to undergo an intimate search, then that person should be taken to the police station and the search should be carried out by a police officer and should, of course, be subject to all the safeguards that such a search would normally require. For example, an intimate search would not be undertaken in the street.

We think that paragraph 24 of Schedule 4 should be left out. I beg to move.

8.45 p.m.

Lord Bassam of Brighton

I can safely agree with the noble Lord, Lord Bradshaw, that this is a highly sensitive issue. I welcome the opportunity to explain the thinking behind this part of the Bill and the safeguards that are already in place.

When colleagues, fellow Ministers and I visit police forces and have discussions with police officers, we are often told of their frustrations about spending so much time inside the police station rather than out on the beat. As we have explained many times before, this part of the Bill seeks to change that so that suitably qualified civilians can perform some of the functions and duties, thus allowing officers to do what they should be doing; that is, working in the community.

There is no point in having civilian detention officers if we then give them only limited powers so that they cannot perform the full range of duties necessary. This would require a police officer to stay behind to carry out functions such as intimate searching or administering warnings about the use of samples.

We share the concerns expressed by the noble Lord that there must be safeguards, but I think that they are already in place. Detention officers will be employed by the police authority and will be under the careful direction and control of the chief officer—in the same way as police officers are. They will be accountable to the chief officer and subject to proper disciplinary and complaints procedures. I believe that we have made that plain in previous debates. Perhaps most important, the significant safeguards set out in the Police and Criminal Evidence Act 1984, and the corresponding PACE code of practice will continue to apply.

It may help if I explain to noble Lords the effect of Section 55 of PACE, which provides that an officer of at least the rank of superintendent may authorise an intimate search only where he or she has reasonable grounds for believing that someone who has been arrested and is in police detention may have concealed on him something which could be used to cause physical injury to himself or others and which he might use while he is in police detention or in the custody of a court; or that such a person may have concealed on him a class A drug and was in possession of it with the appropriate criminal intent before arrest.

In either case, an intimate search can be authorised only where the authorising officer reasonably believes that the concealed item cannot be found without an intimate search taking place. Section 79 of the Criminal Justice and Police Act 2001, which is not yet in force, lowers the rank of officer who can authorise an intimate search from superintendent to inspector. However, this change in rank of authorising officer does not affect the circumstances in which these searches are carried out.

Currently, PACE and Code of Practice C provide other safeguards, which will apply to detention officers. For example, the reasons why an intimate search is considered necessary shall be explained to the person before the search takes place. An intimate search for drugs may only be carried out on medical premises by a registered doctor or nurse. Whenever an intimate search is carried out, the custody record must state which parts of the body were searched and why they were searched. All of those points must be made plain.

An intimate search for other harmful articles may only be carried out at a police station or medical premises by a registered doctor or nurse unless the superintendent considers that this is impracticable. In such a case, the intimate search will be carried out by a constable or, with the passage of this schedule, a police-employed detention officer.

PACE and Code of Practice C provide additional safeguards in these circumstances which will apply to a detention officer. For example, a constable may not carry out an intimate search of a person of the opposite sex. Where an intimate search is carried out by a constable, the reason why it was impracticable for a medically qualified person to conduct it must be recorded. This will apply where detention officers are authorised to carry out a search.

In practice, the circumstances in which a superintendent needs to authorise an intimate search of a person by a constable or, in the case of this Bill, a detention officer, are very rare. Such a situation might arise where, for example, a superintendent reasonably suspects that a person has concealed a harmful article on himself, such as a razor blade or a knife, and no doctor or nurse is available to conduct an intimate search.

Code of Practice C which contains guidance on the conduct of intimate searches is currently under review as part of the general review that we are undertaking of all codes of practice. We are including clearer guidance for inspectors on exercising discretion in cases where a doctor or nurse is not available to conduct an intimate search.

PACE and the code of practice have provided very adequate protections for the past 17 or 18 years. They have proved themselves and, through being subject to constant updating, they are robust and have withstood the test of time, as they were intended to do. We think that the significant safeguards that have been built in will not in any way be eroded by the introduction of this schedule. Any intimate search undertaken by those designated under this schedule will be made only with the authorisation of a senior police officer and will be in limited and controlled circumstances.

For all those quite proper reasons, we feel that we must resist the amendment. While I understand why the amendment has been tabled, I would ask the noble Lord to withdraw it.

Lord Elton

In order to clarify the background to this point, am I right in assuming that the effect of Clause 33(6), which we discussed before breaking for dinner, is that detention officers will only act as detention officers inside a police station. The noble Lord, Lord Bradshaw, mentioned that such searches should not be undertaken on the street, but as I understand it, they would not be empowered to act on the street.

Lord Bassam of Brighton

I cannot believe that the noble Lord is anything other than correct. However, he should be assured that if there is any variation on that, the noble Lord will be told very promptly.

Lord Bradshaw

Before withdrawing the amendment, I should like to ask the Minister to look at this again. I stand corrected; this can only be done by detention officers. However, the people who are going to be employed as detention officers—in fact, they are already employed as detention officers in West Mercia, for example—are not employees of the police authority. They are people who work under contract for companies such as Group 4 or Premier Prisons, who provide a detention service for the police authority in their custody suites. Thus the detention officers are not police authority employees. Can I take it that they would not be allowed to carry out such searches?

Lord Rooker

I refer again to the first line of Clause 33: The chief officer of police of any police force may designate any person who—

  1. (a) is employed by the police authority maintaining that force, and
  2. (b) is under the direction and control of that chief officer".
I take that to mean police authority employees.

Lord Bradshaw

But they are employees of Group 4, or whoever employs them, and they are under contract to the police authority. It would need a watertight contract if such people were involved in intimate searches. The contract would have to cover both the PACE and discipline requirements for such people in all respects.

This is a difficult area. I shall reflect on what the Minister said. In the meantime, I beg leave to withdraw the amendment.

Lord Bassam of Brighton

Before the noble Lord withdraws the amendment, to be crystal clear, there is no question of intimate searches being carried out in the street. I want to put that on the record. The power under PACE which can be conferred can be carried out only in a police station or a hospital. It is not a power which can be conferred on community support officers.

I should say to the noble Lord, Lord Elton, that detention officers can exercise powers only in police stations. I hope that that is crystal clear.

Lord Tope

I am grateful for the Minister's reassurance, but between now and the next stage will he look at the question of employees of police authorities only? The reason I ask is that in the Met—and I am sure this is happening in other parts of the country—we have a PFI scheme to build three new police stations in south London. As part of that PFI scheme, a number of the employees—and, frankly, I cannot remember whether they include the detention officer but I think they do—will be employees of the company in the PFI deal. I am not clear of my facts, but, under such circumstances—this is not the only such deal and will not be the only such deal in the years to come—is that actually the case? Perhaps the Minister will look at this issue and advise us on it outside the Chamber.

Lord Rooker

We shall look at the issue. But Clause 33 is entitled, Police powers for police authority employees". I am not a lawyer, but an employee is an employee, not a contractor or a sub-contractor. People working for contractors would be the employees of someone else, not the police authority. Part of the whole reassurance in Clause 33 is that the people concerned are employees of the police authority under the direct, specific employer control of the chief constable

Amendment, by leave, withdrawn.

[Amendment No. 218 not moved.]

Lord Rooker

moved Amendment No. 219: Page 121, line 33, at end insert "; and ( ) in relation to designation under section 33 by a Director General, means England and Wales.

On Question, amendment agreed to.

Schedule 4, as amended, agreed to.

Clause 34 [Community safety accreditation schemes]:

[Amendment No. 220 not moved.]

Lord Bradshaw

moved Amendment No. 221: Page 32, line 43, leave out "for the exercise The noble Lord said: I hope that the purpose of this group of amendments is self-evident. They seek to remove from the Bill the proposals for accredited persons to exercise police powers, however limited. We are not absolutely convinced that there is any need for such persons to exercise police powers.

I am sure that the Committee is aware of many active neighbourhood and street warden schemes. They are extremely popular with local communities and there are many local initiatives. At present, such schemes do not have any police powers but the clause suggests that they should have. I should stress that many communities—and I speak for a large number of them in the APA—want to see their local wardens left as they are and not to exercise police powers. But as long as the powers in the Bill are permissive and can be adopted if communities want to adopt them, we are content to let the matter rest there. I beg to move.

Lord Rooker

I take it from the noble Lord's concluding remarks that he understands the significance of the amendments. They would undermine the effectiveness of the community safety accreditation schemes. Clauses 34 and 35 and Schedule 5, which these amendments seek to remove or seriously weaken, set out the powers which chief officers can give to members of accreditation schemes. That meets the noble Lord's final point because it is still enabling—in other words, there is a degree of discretion on the part of the chief officer.

A wide range of organisations and their staff already contribute to community safety. One of the key objectives of this part of the Bill is to harness the energy and commitment of neighbourhood and street wardens, shopping centre security staff and many others—this is where we have talked about the park keepers—who make a direct and crucial contribution to making communities safer.

The accreditation of such community safety organisations and the option to confer limited police powers on their employees will enable wardens and other accredited persons to be more effectively deployed. This is not policing on the cheap but a realistic, hard-headed approach to supporting police work.

I should emphasise that a number of safeguards will be built in to the accreditation scheme. A dual key will operate. The employer—usually a local authority chief executive—would need to seek appropriate powers and the chief officer would need to agree them. The local police authority and other local agencies would be fully consulted on the proposed community safety accreditation scheme. The chief police officer would need to be satisfied that the person to be accredited was suitable to exercise the powers to be conferred on him, was capable of carrying out the community safety functions and was properly trained.

The employer would need to have a suitable complaints and disciplinary procedure in place. All accredited persons would be publicly recognisable by a nationally-approved badge on their uniform. The continuation of any accreditation scheme would be subject to an annual review and the accreditation of any individual could be withdrawn at any time.

The precise powers to be conferred on the employee of a particular accredited organisation would be depend on his or her role and local requirements. Schedule 5 therefore provides a menu from which powers can be selected to suit the training and deployment of accredited persons. In practice it is unlikely that chief officers will have more than a few variations in the powers extended to accredited persons.

I believe that that meets the point made by the noble Lord, Lord Bradshaw. No one is forcing this scheme on employers or chief constables. In the same spirit and for the same reasons as in our earlier long debate today, I hope that the Committee will accept the position as stated. We shall look at all issues raised. In not moving these amendments, the noble Lord can be assured that we have met his main point.

Lord Elton

Did the Minister say that these people would wear a nationally approved badge and not a nationally approved uniform? It seems rather odd. One would think that either the whole thing would be local or the whole thing would be national. Is there a reason for that?

9 p.m.

Lord Rooker

I do not know, but I suspect that they may be employees of local authorities. The local authority may have the relevant uniforms for its employees, in the parks, for example; it may be that the private sector has a uniform for its shopping centre control wardens. All we are saying is this. Although people are not employed nationally in that sense, they are employed as part of a national scheme. They are approved and accredited by a chief of police—that is the key point. The badge would be the symbol to the public that they are bona fide, that they are not private sector, vigilantes, or free enterprise. To badge up someone else's uniform in a distinctive way would probably be the appropriate thing to do.

Lord Bradshaw

Again, given the Minister's assurances, I am happy to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 222 not moved.]

Lord Dixon-Smith

moved Amendment No. 223: Page 32, line 44, after "him" insert "as community safety special constables The noble Lord said: This amendment is grouped with Amendments Nos. 244, 247 and 250. The purpose of the amendments is to change the status of the accredited community safety officers to that of special constables.

We have had this debate ad nauseam, so there is no point in repeating all the arguments. However, I should like to make one or two points. It is clear—and I regret this—that the Government have not thought seriously about this possibility. They have decided to do things this way—using accredited people—and that is it. That is unfortunate.

The effect will be that the specials will continue to languish. There is no original thinking about how to re-stimulate and re-enthuse the specials. This Bill provided an opportunity for that to happen. If that is the way the Government want it, so be it. It is regrettable, because there was the opportunity for a complete change of direction which would bring people back into the special constabulary. As with the Territorial Army, recruitment could have helped to overcome the ethnic barriers which cause so many problems for the police. Had that been by the specials route, it would undoubtedly have led some recruits into joining the regular police force, which would have won the approval of all of us.

The purpose of the amendments is to point out that the Government are missing an opportunity. On the whole, they will be providing a somewhat devalued service to the public in future. If that is what they want, that is what they want. We find it regrettable.

Turning to Amendment No. 247, the possibility arises in the Bill of the chief constable charging for costs of accreditation. We suggest that the cost of training should be added. However, I am bound to say as a matter of principle and practicality that it is more likely that the last thing a chief constable will be able to do is charge employers for the cost of accreditation. If anything, they will need inducements to join this scheme. Outside employers and even local authorities will not find it a particularly attractive option. They will become subject to complaints procedures which they must have in place. If anything goes wrong, it will impose quite a burden on any outside employer who has become involved in one of these schemes. However, this subject was roundly debated earlier. I beg to move.

Lord Carlisle of Bucklow

I support the purpose behind the amendments as described by my noble friend Lord Dixon-Smith. Surely, the best way forward would be an expansion of the special constabulary. Although I understand the principle behind the introduction of community support officers, I hope the fact that the Government are proceeding down this line does not mean that they will not at the same time attempt to increase the number of special constables.

One was concerned earlier this week when one heard the Minister's reference to the enormous drop in the number of special constables as compared to some 10 or 20 years ago. I hope that the Minister is not going to say that the provisions of this Bill should be an excuse for not trying to recruit more special constables. As my noble friend Lord Dixon-Smith has said, in the end the recognised special constable is the best back-up for the permanent police force given the possibility that many become police officers.

Lord Renton

I, too, support the amendments. Perhaps I may add to the comments of my noble friend Lord Carlisle. For many years, special constables have played a vital part in keeping order in our society, especially on occasions when the police must be assumed to be under greater pressure than they normally are. Therefore, these amendments are important.

Perhaps I may mention a purely grammatical matter which I have noticed in passing. I first learnt to read and write before 1914. It may be that the language has changed a little since that time. We always used to say that things and people should be accredited "with", not "of. The last two lines of subsection (1) say: for the exercise within his police area by persons accredited by him under section 35 of the powers conferred by their accreditations". Surely it should be "with the powers".

Lord Rooker

Far be it from me to complain about people's attendance. I cannot put my hands on my notes from Tuesday, but we had a short debate on two amendments relating specifically to Specials in which I explained that the Government are reviewing the possibility of payments and bounties for Specials to try to increase recruitment. There has been a drop of several thousand Specials over the past four years, down to 13,000 from about 20,000, As a separate exercise—and this is on the record from our debate earlier in the week—we are taking forward a project with ACPO and, I think, the Association of Police Authorities, which has been designed to find ways to increase the number of Specials. Nothing that I say today in any way qualifies what I said on Tuesday. I do not want the noble Lord, Lord Carlisle, to think that we are not concerned about the drop in the number of Specials, because we are.

The Specials are a vital resource in ensuring public confidence. As volunteers, they are the embodiment of active citizenship. The Government want to reverse the decline in the number of Specials. As part of that, we are looking at ways of improving the recruitment and retention of Specials, including exploring the case for paying an allowance to recognise levels of commitment. We are not looking to change the status of Specials to that of paid employees, as we believe that that would detract from their special status.

The amendments would have two possible effects. They could create a category of employed status Specials, whose main job would be working as Specials, with the full powers of volunteer Specials, including powers of arrest—in other words they would be full constables. In effect, the amendments could create a less well paid regular force employed by an outside organisation. Alternatively, the amendments might require organisations that promote active citizenship among their staff to pay all the costs involved if any of their staff want to become volunteer Specials, including the costs involved in accreditation and training. That is not much of an incentive to small organisations to promote becoming a Special over other forms of volunteering, which are of minimal cost to the employer.

Volunteer Specials are an essential and valuable part of the police service, but they are not the solution to the problems of anti-social behaviour. By their very nature, Specials are available outside normal working hours. Most Specials have a job in addition to their voluntary work. They are available at weekends and in the evenings.

Neighbourhood wardens and others for whom community safety and regeneration is a full-time job are available at the beginning and end of the school day, on pension day and during the school holidays. They provide a full-time community presence, which is enhanced by the presence of the Specials when they are available. There is a desire to do something for the Specials. I said on Tuesday that I regretted that we were not able to do anything in this Bill, but I pointed out that there was legislation in 1992 under which a regulation was put through both Houses that would enable us to make the changes following our review. We would not require primary legislation to do that. That is a separate exercise and is not being negated in any way by the Bill's proposals for community support officers or the accredited people through their organisations.

I understand where the noble Lord, Lord Dixon-Smith, is coming from. He does not want community support officers, period. The amendment is a way of converting the idea into Specials. Specials look like police officers because they are police officers, with the full powers of constables. I hope that my explanation of the powers and commitment of the Specials is not compatible with our proposals for the people who would be designated under this part of the Bill.

Lord Brooke of Sutton Mandeville

If it is any help to the Minister, he dealt with the issue on Tuesday at cols. 181 and 182. His memory is remarkably good. The experimental bounty was introduced in 1993.

Lord Dixon-Smith

I accept what the Minister said about costs and I agree with him. I expressed some doubts when I moved the amendment. However, he has failed to understand what we are trying to do. He has suggested that these people are going to be employed as full-time special constables. That is not the point of the amendments. These people will be doing a full-time job, and they will continue to do that job. However, as they will be accredited—just as they would be accredited under the accreditation scheme—they will be accredited special constables. It would be a supplementary addition to their job, not a substitute for it. It is a completely new approach to the whole issue.

Regrettably, the Minister has failed to make that distinction. He is still thinking about special constables in the old, traditional way as volunteers doing something outside their normal job. The whole purpose of this group of amendments is to make it possible for them to do their job and to have a supplementary responsibility, just at the accredited safety officers will have. The supplementary responsibility will make them special constables as opposed to accredited officers. That is the only distinction.

9.15 p.m.

Lord Rooker

Is the noble Lord proposing that full-time employees of an employer should have the full powers of a regular police constable, as specials have?

Lord Dixon-Smith


Lord Rooker

It is a remarkable innovation then.

Lord Dixon-Smith

Yes, it is a remarkable innovation, and we should be quite clear about it. That is why I say that it is a radical proposal.

I shall leave it there. The Minister is now aware of the point, and that is satisfactory. We have also identified the difference between us. I ask him to think about the point, which is very important. At this stage, however, I beg leave to withdraw the amendment

Amendment, by leave, withdrawn.

[Amendments Nos. 224 to 226 not moved.]

Lord Dixon-Smith

moved Amendment No. 227: Page 33, line 24, leave out subsection (5). The noble Lord said: This is a probing amendment. Clause 34(5) states: A community safety accreditation scheme must contain provision for the making of arrangements with employers who … are carrying on business in the police area in question, or … are carrying on business in relation to the whole or any part of that area or in relation to places situated within it". The amendment seeks to uncover precisely what is meant by the provision. Firms such as Group 4 and Securicor, for example, have company headquarters. Are they carrying on business only at the location of that headquarters or across the whole country? If the latter, their employees policing a shopping centre could be accredited in that area although their headquarters were somewhere else and all their revenue and taxes went elsewhere. The amendment makes a small point of detail which seeks to ascertain the meaning of the provision, which is loosely worded. We shall have to be able to gain employers' co-operation.

There is another point. It appears that employers who indulge in these schemes will pick up a liability if their employees do anything wrong when acting on behalf of the police. The point is dealt with in Amendment No. 260, which is in this group. We have to be very clear that, should someone acting with police powers make a mistake, liability for that mistake should go back to the police rather than to the employer.

Both issues are very important in their own way, although in the context of some of the matters we have discussed they may seem trivial. I beg to move.

Lord Bassam of Brighton

I believe that we can reassure the noble Lord sufficiently. As I understand the amendments, they appear to be concerned about a shift in responsibility and legal liability for unlawful conduct on the part of staff who are given certain powers.

So far as we are concerned it is immaterial where a company's headquarters are located. If Group 4 is contracted to provide the security in a shopping centre in Epsom, it is carrying on a business in Epsom. The location of its headquarters does not have much relevance. The important matter is that whoever is deployed or employed as a neighbourhood warden has already built up a reputation for his or her commitment and professionalism. Such wardens will be eligible, if their employer and the local chief constable agree, to be accredited as part of a community safety accreditation scheme and could be extended limited appropriate powers.

We do not want to bring wardens and the like under the control and supervision of the police; their strength is their independence. As part of the accreditation process the training and professionalism of both the individual staff and their employers will be carefully assessed and powers will only be extended where the chief officer is satisfied with standards of training and professionalism and that there is appropriate supervision in place. That is the important point.

The accreditation of an organisation and the extension of powers to employees will be reviewed regularly to ensure that the standards we expect are maintained. That is another important assurance for the noble Lord to take into account. We believe that we have the safeguards in place to ensure that supervision of exercise of powers is of a high standard. We already trust others to exercise official powers and their employers to supervise them; these safeguards will enable the public to trust accredited persons and their employers in the same way.

We believe that bringing accredited organisations under the direct control of the police by making them liable for the actions of accredited persons will discourage organisations from working in coordination with the police and could be a burden on the police and mean that those organisations that are accredited would lose their independence.

I hope that those assurances help the noble Lord. I understand what motivated him to table the amendment, but we believe that we have adequate checking mechanisms in place and that the liabilities are understood.

Lord Mayhew of Twysden

I am afraid that I yield to no one in my ignorance of these procedures but I thought that Amendment No. 260 was grouped with the amendment we are discussing. I thought that my noble friend on the Front Bench alluded to the making of a joint tort-feasor in connection with the employer. I raised that matter briefly at Second Reading. I do not think that the Minister mentioned it in his reply. I n my view what is wrong here—I should be grateful for the Minister's comments on the matter—is the following.

In law you are liable as an employer for the actions of your employee only if they are carried out in the course of his employment with you. That is putting the matter very generally. Yet here we have a blanket imposition of liability upon the employer as a joint tort-feasor, joint wrongdoer, with the chief officer of police in circumstances—which will catch the employer—where he may have given the most express instructions to his employee not to do a certain thing in the course of his work as an accredited officer and has exercised proper supervision to see that he does not. Yet, none the less, his instructions are broken. In those circumstances I believe that anyone would say that it was unjust to make the employer liable. If anyone is to be liable it should be the police on whose behalf this work is being carried out.

Which employers will be approached for accreditation purposes? We have heard of some instances of providers of private services of a security character but the matter is not limited to that. Will the Minister deal with that point? I believe that it is a fairly simple one which can be dealt with today, particularly as it was raised at Second Reading.

Lord Bassam of Brighton

I am not an expert in tort but I should think that in the circumstances that the noble and learned Lord described, there probably was a strict liability because the instructions or guidance had been issued by the employer, not the police. I do not necessarily believe that the liability would shift, but I shall take advice on that. I apologise to the noble and learned Lord if we did not cover that point in the fallout from our debate at Second Reading. A difficulty may well be caused in the situation that he described. That is one of the circumstances in which liability is perhaps more strict that he would wish.

Lord Mayhew of Twysden

Liability can be strict only if the Bill imposes it, which it does. It is that which I respectfully suggest is unjust.

Lord Condon

I place on the record the fact that I am a non-executive director of Securicor—particular firms have been mentioned—and my silence on this matter should he seen in that context.

Baroness Gardner of Parkes

In London, there is much interest among local boroughs about accredited persons. They should also be considered in this respect.

Lord Bassam of Brighton

For the convenience of Members of the Committee, our advice is that in this instance the employer will be liable for unlawful conduct only in the course of the person's employment and in reliance or purported reliance on designation or accreditation. I think that it is right to say that a member of the public should have a remedy against an organisation, not an individual. That must be right.

Lord Mayhew of Twysden

I hope that the Minister will examine this matter again because I do not believe that that is an accurate statement of the position. I am quite prepared to find that I am wrong in the event, but in this regard the provision would impose strict liability on anything done by an employee in reliance or purported reliance on a designation or accreditation. It is important for the guy in the street who is stopped and told that he is behaving in an antisocial way to know who he will sue. He will assume that the person is acting within the course of his employment. One can envisage certain circumstances in which he will not be; none the less, strict liability will be imposed, as the clause is currently drafted, on the employer.

Lord Bassam of Brighton

We will need to satisfy the noble and learned Lord, who is obviously very learned in these matters. I have put our interpretation on the record.

Lord Dixon-Smith

I am grateful to the Minister for his clarification and to my noble and learned friend Lord Mayhew for pursuing this point. The only sensible advice that one could give to any employer is to avoid letting his staff be accredited because of this potential liability, and I do not think that that is what the Government intend. They may think that that position will not arise but we are right to fear that it could arise. If it could arise, the advice that I suggested would be appropriate and that would rather destroy the scheme's credibility. I hope that the Government will carefully examine the issue. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 228 not moved.]

Lord Dixon-Smith

moved Amendment No. 229: Page 33, line 32, leave out subsection (6). The noble Lord said: This amendment returns us to the point that we have just been discussing, and I shall not discuss it further; we have already dealt with it.

Amendment No. 230, which is grouped with Amendment No. 229, would leave out subsection (6) on page 33 at line 32 and insert: A chief officer of police who establishes and maintains a community safety accreditation scheme shall ensure that the employers of the persons on whom powers are conferred have established and maintain satisfactory procedures for the handling of complaints, which, at the election of the complainant, may be referred to the Commission in the event the complainant is not satisfied with the outcome of such a complaint". That would make it absolutely clear in the Bill what would happen if a complaint causes a problem.

Amendment No. 232 imposes on the chief officer a duty to ensure that the employers of an accredited person have an adequate complaints procedure. We have more or less dealt with that point.

Finally, Amendment No. 233 states that it will be the duty of a chief officer to establish and maintain for public inspection a register of the employees against whom complaints are made. We do not believe that that is an unreasonable suggestion to make; nor is it unreasonable to suggest, as we seek to do in Amendment No. 249, that the chief officer must have regard to that list of complaints if, in fact, he is looking to renew accreditation. I beg to move.

9.30 p.m.

Lord Bassam of Brighton

As the noble Lord said, this debate leads on neatly from the preceding one. It appears to me that the noble Lord is seeking—I understand why—to provide further safeguards in relation to the complaints systems of organisations that have been accredited under Clause 34.

We absolutely agree that we want these arrangements to be transparent and robust. We also want members of the public to feel confident, as the noble Lord said, that they have powers of redress against anyone who is working as part of an accredited community safety scheme. Clearly there is a balance to be drawn, but we believe that we already have sufficient safeguards in place. To introduce more could leave us open to the claim that we are unnecessarily increasing the burdens on the police service while saying that we are committed to reducing them. At this moment, Sir David O'Dowd, the former Chief Inspector of Constabulary, is leading a task force to reduce levels of bureaucracy in the police service.

We have already provided in Clause 34(6) that chief officers must ensure that satisfactory complaints handling procedures are established and maintained. Clause 35(7) provides that accreditations are subject to periodic review and renewal. If there is evidence that previously satisfactory systems are no longer working, then chief officers will be able to withdraw all accreditations involving that employer as the criteria for accreditation will no longer be met.

We have also provided in Clause 36(5)—I believe that perhaps this goes some way towards meeting the point raised in the earlier debate by the noble and learned Lord, Lord Mayhew—that, in the event of torts, the employer and employee will be held jointly liable. In our view, that will provide a strong incentive to employers, whose very purpose and function depends on gaining and keeping the respect and confidence of the communities with whom they are working in partnership, to ensure that procedures are followed and that any complaints are handled properly and resolved to the satisfaction of the complainant.

Clause 39 will require chief officers to have regard to a code of practice on the exercise and performance of their powers and duties under this part of the Bill. It will include guidance on the accreditation process and will ensure that organisations operate satisfactory complaints handling processes. It would be possible to see this as a further safeguard in the sense that we want to trial these matters. We shall pilot the accreditation schemes before they are available for implementation and roll-out nationally. Therefore, there will be a thorough process of piloting, trying and testing the procedures to ensure that they work and that they are properly operable.

We believe that we have the balance right between bureaucracy and ensuring that the public can trust that there is sufficient regulation. We believe that there is the right balance between regulation and a lighter touch to ensure a proper level of protection in the case of complaints.

Findings from the pilot schemes will indicate whether that balance is right and they will be used to advise us in rolling out and perfecting the scheme nationally. They will also enable us to amend the code of practice issued under Clause 39, if appropriate. I hope that that provides the necessary reassurance to the noble Lord.

Lord Elton

Perhaps I may say, in support of my noble friend, that it seems odd, having expended so much effort in producing the new commission to cover the whole of the police force everywhere, to then construct a new wing attached to the police force which will not be subject to it. I do not want to promote a long debate tonight. However, I want to declare an interest if the matter comes back on Report.

Lord Dixon-Smith

I am grateful to my noble friend, who raised a valid point. We are not completely satisfied that this part of the Bill is consistent both with other parts of the Bill and with what we think would he a desirable situation. We have had a fairly full explanation, for which I am grateful. We shall study it. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 230 to 233 not moved.]

On Question, Whether Clause 34 shall stand part of the Bill?

Lord Mayhew of Twysden

Perhaps I may return briefly to vicarious liability, which we discussed a few moments ago. On instructions from behind him, to the north east as seen from here, the Minister said that there is a safeguard because the person would have to be acting in the course of his employment. I thought that that was wrong and suggested so. However, the point I should have taken is to be found on page 35, line 15, in subsection (5), which states: [all] conduct by such an employee … shall be taken to be conduct in the course of his employment. The clause makes it conduct in the course of his employment, even where the ordinary law in the circumstances with which we are concerned would not. That is the fallacy of the argument. I wanted to mention that before the whole matter disappeared.

Clause 34 agreed to.

Clause 35 [Accreditation under community safety accreditation schemes]:

[Amendment No. 234 not moved.]

Lord Dixon-Smith

moved Amendment No. 235: Page 34, line 3, leave out paragraph (a). The noble Lord said: Amendment No. 235 deals with a matter which causes us concern. As drafted, the Bill would require that the employer of an accredited person would be able to supervise the carrying out of a police function. Such employers, often commercial employers or local authorities, however well intentioned, will not be experienced in police matters. It seems to us wrong for them to be held responsible for the supervision of a police function by an accredited person. We believe that that places an unreasonable burden on them.

Amendment No. 236 seeks to omit paragraph (b), which is unnecessary in view of the wording in subsections (c) and (d). The Minister will be able to accept Amendment No. 237 with no difficulty. It simply leaves out the word "himself". A person can be none other than himself. He cannot be somebody else. Therefore, the word is unnecessary.

My only comment on Amendments Nos. 239 and 241 is that if we were to go down the special constable route which we propose, both paragraphs would be unnecessary. I beg to move.

Lord Rooker

As to Amendment No. 237, I shall take advice on the use of "himself". I am sure that there is a good legal reason.

The amendments would remove the requirement for chief officers to satisfy themselves about the suitability of the person who is to be accredited—including checks into their capability to perform the functions for which powers are sought, the training that they have received in respect of those powers and the suitability of the person's employer to supervise the carrying out of those functions.

We are talking not about community support officers but about employees of someone other than the police authority. It is wholly proper that the chief constable can make sure that the employer has all the necessary functions and capabilities in place before designating employees. We are dealing with a mixed bag—maybe local authorities.

The jobs in question are being done now. Local authorities that are employing wardens, or shopping centre managers who are employing their own heavy mob and gatekeepers, are doing so as a commercial enterprise—unfettered in many respects, because they are not performing police functions anyway. The beauty of the accreditation scheme and giving police a role is that the chief police officer will be able to ensure the bona fides of the employer before employees are designated. The duty of the employer is not that of the chief constable. It is vital that those checks are made before a person is accredited.

Clause 35(4) must be left as it stands because it is essential to have a statutory framework for the accreditation of the powers, as part of the public confidence factor. It is not sufficient to require that the chief officer satisfies himself of the suitability of the individual to be accredited. The process must include an assessment of the person's capability and training and a check that the employer is a fit and proper person.

Checks on the individual to be accredited and the employer would cover criminal records and good character, which are essential to ensure that powers are only conferred on appropriate persons. Checks on training will enable the chief officer to be reassured that the individuals have been trained to exercise the powers conferred and reach the required standards in their knowledge of relevant law, first aid and conflict resolution. There is probably no statutory training requirement at present, which provides the loophole. People can put on a uniform, sell a service and operate—and the public think that they must be okay because they are in uniform. From some stories, some of them certainly have not been trained in conflict resolution. Police checks will add extra comfort.

We intend to consult stakeholders on the checks to be made. I cannot rely on the code of practice too much because it is important to pilot this specifically. With community support officers, piloting is almost de facto because the Metropolitan Police want to get on with it. Others may be less certain, so it becomes a sort of a pilot. With accreditation, we will pilot and will not allow schemes to be rolled out until we have feedback on the advice given in the code of practice.

I have been on my feet a few minutes but no one has brought me a note about "himself", so I will have to write to the noble Lord on that point.

9.45 p.m.

Lord Brooke of Sutton Mandeville

I am not a lawyer, but I have studied Amendment No. 237. It occurs to me that the word "himself- appears in this paragraph for the sake of clarity. The person's employer in paragraph (a) has been described as, a fit and proper person". Therefore, as a new person is introduced in paragraph (b), it is conceivable that it was felt necessary to add the word "himself" in order to produce a distinguishing mark between the two.

Lord Rooker

I thank the noble Lord for that explanation. I am sure that there is a note somewhere to that effect.

Lord Dixon-Smith

I am grateful to my noble friend Lord Brooke who may have produced the right explanation. However, I am a little disappointed in what the Minister said in response. Where local authorities are operating wardening schemes, or where a commercial security firm is providing security officers for a shopping centre, police powers are not being exercised. Let us be clear about this: they do not need to have the sort of supervision and training, and so on, that is required.

The Minister had much to say about approving the employer as a "fit and proper person" to employ people to carry out such work. But the bit of the Bill that we seek to remove is very specific in this respect. When we are talking about getting people accredited and ensuring that they are properly trained, it does not have anything to do with the employer being a fit and proper person. The provision says that a person's employer is, a fit and proper person to supervise the carrying out of the functions"— in other words, police functions. Indeed, they are nothing else. They are not related to employer/employee relations, or anything else. They are pure police functions. Even if the employer were competent to do so, I doubt whether it would be appropriate to have a third party employer supervising police functions. We are talking about policing, and the integrity of policing. I do not like that phrase in the Bill because it is very specific.

I have heard what the Minister said, and I hope that he heard what I said. Perhaps we should both go away and consider all that has been said on the subject. It is always possible that we may reach a satisfactory conclusion at some time in the future, though we shall not do so tonight. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 236 to 242 not moved.]

Lord Dixon-Smith

moved Amendment No. 243: Page 34, line 12, leave out from beginning to "for" and insert "The Secretary of State may by order provide for appropriate fees to be charged by a chief officer of police The noble Lord said: With this amendment we turn our attention to the wording in the Bill that deals with the question of fees. My preference is that no fees should be involved in the process. I cannot see any incentive for outside employers to become involved in such schemes. Indeed, I can envisage many disadvantages for them. However, if there are to be fees, we believe that they should be agreed on an approved scale rather than it being an option for a chief constable to charge what he thinks fit. Of course, if he believes that nothing is fit that might be "appropriate". He could conceivably see this as a commercial operation, though that is highly unlikely. I beg to move.

Lord Bradshaw

Perhaps I may speak to Amendments Nos. 244 and 246, which are grouped with the noble Lord's amendment. Our amendments deal simply with the question of who is responsible for the police fund. At present, we believe that it is the police authority. If that is so, we would seek to amend the subsection to make it the responsibility of the police authority to charge such fees as it "considers appropriate", rather than it being a matter for the chief officer of police.

Lord Bassam of Brighton

We probably disagree with the noble Lord's last point. It should be for the chief officer to decide the size of the fee. Clearly, there would need to be consultation within the police authorities over that.

The purpose of the clause is to enable the authorities to cover only those costs that they incur during the process of accrediting new and renewal applications. It is not a licence for chief officers to create additional wealth for their forces. In line with that, the code of practice under Clause 39—to which chief officers must have regard—will make it clear that this should not be regarded as a fund-raising exercise. It will require that the costs involved in the accreditation process are offset by the fees charged to make the process basically cost neutral to the force, so that it does not have to transfer resources from elsewhere, and obviously, in particular, frontline services.

If the charge was set nationally by the Secretary of State, the effect could lead to profits being made in some force areas. Obviously, it will depend on a force's costs, the way in which it builds up its costs base and the way in which it charges items. That would put some forces at a financial advantage and others at a disadvantage in creating these accreditation schemes. So there could be a perverse effect.

The Bill as drafted, supported by the code of practice issued under Clause 39, probably provides the best framework for charging fees as part of the accreditation process; protecting both employers from being charged more than necessary and the police from having to subsidise the process from their core costs.

We take the view that the police authority must be fully involved and, as I have said, consulted about all aspects of setting up community safety accreditation schemes in their force areas, including the size of any fee. So, in general terms, I think that that satisfies the point made by the noble Lord, Lord Bradshaw. These issues will be covered in the code of practice under Clause 39.

Although we have sympathy with the noble Lords' amendments, as I have explained the scheme to the Committee, it should give the chief officer the flexibility to vary the fee on accreditation so as to ensure that it matches any costs being incurred. It will also mean that the fee is appropriate to the force area.

We give a very firm undertaking that the matters will be properly dealt with in the code of practice. I think that that probably enables the noble Lords to feel confident that they can withdraw the amendments.

Lord Bradshaw

I make the point that the Police Act 1996 is absolutely clear on this matter; it is the police authority which makes the charge on the advice of a chief office and it is responsible for collecting it. It does not matter very much to me, but I think that the Minister is in error. I ask that on Report we are absolutely clear—

Lord Bassam of Brighton

Our understanding of the best means of operating this scheme is for the chief officer to set the fee in consultation with the police authority. I suspect that it is an issue that the police authority finance committee will ruminate over for some time in helping him come to that conclusion.

Lord Dixon-Smith

I am grateful to the Minister for his explanation. We should be quite clear that what is cost neutral to the police force will definitely cost someone some money. That may pros e to be a problem, but that remains to be seen. I doubt whether anyone will want to get involved in these schemes with direct costs, bearing in mind all the other problems and potential liabilities that the Bill seems to provide for. We shall consider what has been said, but in the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 244 to 247 not moved.]

Lord Dixon-Smith

moved Amendment No. 248: Page 34, line 23, leave out paragraph (b). The noble Lord said: This amendment relates to another nice little bit of wording in the Bill that seems to me to add confusion. The clause states: A person authorised or required to do anything by virtue of an accreditation under this section— (a) shall not be authorised or required by virtue of that accreditation to engage in any conduct otherwise than in the course of his employment"— all right, we have debated that and we do not need to go over that ground any more. But the clause continues: shall be so authorised or required subject to such other restrictions and conditions (if any) as may be specified in his accreditation". Here we go round the whole thing again, because we get down to the business of an individual being given an individual specification for his job, instead of everyone standing on familiar ground, so that we can all understand.

Those words are unnecessary; it is unfortunate that they are there. I hope that the Minister will agree to expunge them. I beg to move.

Lord Rooker

I am sorry, but I cannot satisfy the noble Lord. We need the words in the Bill. I hope that I shall be able to explain why.

We want to enable police forces to mould the extension of powers to accredited persons to fit local policing needs and the aspirations of local people. There will be occasions when powers should be extended more traditionally—operating all day, every day and anywhere in the force area. But there is a place in modern policing for a different approach reflecting the needs of individual communities. The provision is highly targeted.

An example would be the security staff in a shopping centre. It would be in keeping with an accreditation scheme involving a security firm to confer powers in Schedule 5 on the shopping centre security staff, but to limit the exercise of those powers to the confines of the shopping centre. It would clearly be inappropriate in such a case for staff to be able to exercise powers outside the area in which they are contracted to work.

Or consider a crime hotspot—one of the estates to which I referred earlier. The police may tackle that by providing intensive policing for a set period. They may as part of a whole community approach to reducing crime in that area accredit community safety organisations to work only in that geographical area, providing a permanent patrolling presence in that part of the locality.

The extension of the powers will require consultation with the police authority—and through the authority the local community—so that precise restrictions and conditions to be applied can be agreed. Pilots of such accreditation schemes will monitor the effectiveness of restrictions and conditions and ensure that they are appropriate for, and agreed and understood by, the communities in which accredited people work.

We believe that it is important that chief officers can ensure that the role of the extended police family fits the policing style and needs of their force area. I accept that that ability to mould the extension of powers is non-traditional—new—but that does not make it wrong. We are trying to tackle those problems in a new way. Although people may think that the public will be confused by that approach, I certainly do not think that that will be true when they see far more uniformed people in their localities.

I hope that giving those practical examples provides a translation of paragraph (b). Reading the opening of subsection (6), one would not have a clue how it will touch the lives of people in this country. I hope that I have given examples of how, if we lost those words, we should not be able to give the chief officers flexibility to mould policing to the needs of local communities.

Lord Dixon-Smith

I thank the Minister for his helpful reply. I was almost about to say that it satisfied me, but I do not want to see him fall off the Bench. However, it is unlikely that we shall need to bring this amendment back. I am grateful for his explanation, which makes the situation clear. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 249 and 250 not moved.]

10 p.m.

Lord Mayhew of Twysden

Before we leave our debate on the clause, I express my gratitude to my noble friend Lord Brooke of Sutton Mandeville, who, having said, "I am not a lawyer", did not add the normally mandatory words "thank God". Perhaps he thought that they would be superfluous.

Lord Rooker

I shall confirm what I said without the note. The noble Lord, Lord Brooke of Sutton Mandeville, was right: the word "himself" was there to distinguish the employer from the employee. He got it absolutely right.

Clause 35 agreed to.

Schedule 5 [Powers exercisable by accredited persons]:

[Amendment No. 251 not moved.]

Baroness Gardner of Parkes

moved Amendment No. 252: Page 122, line 25, at end insert "or other proof of identity The noble Baroness said: This amendment and Amendment No. 253 are simple and self-explanatory. I tabled them because one of the most contentious matters is asking someone to wait with an accredited person, if necessary, for up to half an hour. Much of our debate has revolved around that matter.

It is also unsatisfactory that there will be no way of knowing whether the name and address given by someone are accurate. The Minister has said to me that the Government were clear that they would not oblige people to carry identity cards. I have, therefore, not suggested that, although I had originally intended to propose it in the amendment. However, there are all sorts of cards that people might have—for example, a driving licence or a security pass such as we have here. There are all sorts of forms of identification. If those were produced and accepted, it would save a lot of aggro all round. That would be desirable.

The second amendment would cover a situation in which someone produced a proof of identity that was not genuine. They might have stolen someone else's identity card—not one with a photo on it, but some other type of card.

I move the amendment in the hope that it would help avoid unpleasant situations that might end up in a degree of aggression with which the accredited person would not be equipped to cope. I beg to move.

Lord Rooker

I am grateful to the noble Baroness, Lady Gardner of Parkes, for that explanation and for the spirit in which she spoke to the amendment. I would have liked nothing more than to have a debate about ID cards and entitlement cards, but not at three minutes past ten o'clock on a Thursday evening.

I agree with the noble Baroness that accredited individuals will, in some cases, want to see proof of a person's identity and their home address, before they are satisfied that the details that they have been given are correct. In practice, accredited people will ask to see proof of identity and address, and we will set out guidelines in the code of practice, under Clause 39, about this matter. We need not amend the Bill; it can be done through the code of practice.

We have made it abundantly clear, whatever our conclusions, that we will not introduce any form of entitlement card that a person might be required to carry and produce. That is ruled out. I have to say that every time, so that there is no misunderstanding in the media. It is not noble Lords who will misunderstand; it is others who are out to scupper the plan, even though we have not consulted on it yet.

In the recent White Paper on immigration and asylum, there is an announcement that the Government will, in the summer, produce a full, detailed and comprehensive consultation paper on the issue of entitlement cards—whether they are good or bad, whether we ought to have them and how they might work. However, as I said, I hope that we can cover the fair points raised by the noble Baroness in the code of practice. That having been said, I hope that she will be content to withdraw the amendment.

Baroness Gardner of Parkes

I thank the Minister for that reply. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 253 and 254 not moved.]

Baroness Hanham

moved Amendment No. 254A: Page 123, line 17, at end insert— "Power to use reasonable force to detain person (1) This paragraph applies where the accreditation of an accredited person—

  1. (a) specifies that this paragraph applies to him;
  2. (b) specifies that any or all of paragraphs 1 and 2 also apply to him; and
  3. (c) sets out the matters in respect of which he has the power conferred by this paragraph.
(2) The matters that may be set out in an accreditation as the matters in respect of which a person has the power conferred by this paragraph shall be confined to—
  1. (a) offences that are relevant fixed penalty offences for the purposes of the application of paragraph 1 to the accredited person;
  2. (b) offences that are relevant offences for the purposes of the application of paragraph 2 to the accredited person; and
  3. (c) behaviour that constitutes acting in an anti-social manner (within the meaning of section 1 of the Crime and Disorder Act 1998 (c. 37) (anti-social behaviour orders)).
(3) In any case in which a person to whom this paragraph applies has imposed a requirement on any other person under paragraph 2(1) or 3(1) in respect of anything appearing to him to be a matter set out in the accreditation, he may use reasonable force to prevent that other person from making off while he is either—
  1. (a) subject to a requirement imposed in that case by the accredited person under paragraph 2(2); or
  2. (b) accompanying the accredited person to a police station in accordance with an election made in that case under paragraph 2(3)."
The noble Baroness said: I feel like Charlie Drake playing in the orchestra when he stood up with the triangle and missed the beat. I have tabled only two amendments to the Bill, Amendments Nos. 254A and 254B, and I want to make it clear at the outset that I am a member of the Royal Borough of Kensington and Chelsea. That borough has asked me to bring forward these amendments.

As I indicated earlier, the Royal Borough is seeking to introduce borough constables. That is being done in co-operation with the Metropolitan Police. The intention is that they should be fully trained in conjunction with the police and should be a well-geared force. The one aspect that is difficult is that, while they will have the powers to detain, they will not have the powers enabling them to use reasonable force.

To all intents and purposes, borough constables will do the same job as will be done by the community officers. It would seem sensible that they should have the same power to use reasonable force, however "reasonable force" is to be defined. People will not then be able to put up two fingers to them, as described earlier, and rush off. It is appropriate that an accredited organisation, as a borough will have to become, should have such powers.

It may be that before the powers are granted to an individual borough or accredited organisation they need to be sanctioned by someone else. Whether that should be the local police authority, as suggested, or the Secretary of State I know not. However, somewhere along the line it will be important that there is the right to use reasonable force. I beg to move.

Baroness Gardner of Parkes

I support the amendment. As I said at Second Reading, the boroughs want the right to work in conjunction with the police. However, they want in particular to be able to retain people within their own neighbourhood so that they cannot suddenly be spirited away somewhere else. That is why such provision is most important.

Lord Rooker

There is a fundamental reason why we cannot accept the reasonable use of force. The accredited persons are not under the direct and specific control of the chief constable; they are employees of someone else. That is why the reasonable use of force is ruled out.

The issue of their being spirited away from one borough to another should not exist. If they are employees of the borough and the council, they are employees of the borough and the council. The employer would decide where they were located, not the police. A separate issue is therefore involved. There is no reason to suppose that if the borough is organising an accredited community scheme it will not be in control of the people. It will be in control of the people because it will be the employer. There will be no question of people being spirited away. However, as the individuals will not be directly employed under the control of the police the question of giving them the power to use reasonable force is ruled out.

The borough constables will have most of the powers of community support officers but they will not have the power to issue fixed penalty notices; they will not have the power to use reasonable force and they will not have the power of entry to save life or limb or to prevent serious injury or damage to property. There are also a couple of other powers which they will not have. It must therefore be said that they are more limited than the community support officers, but, as we said earlier, those officers will be employees of the police authority and under the direct control of the chief constable. That is the fundamental reason why I must say to the noble Baroness that I cannot accept her amendments.

Baroness Gardner of Parkes

Before my noble friend Lady Hanham rises to reply, I should like to raise a point which was first covered in the debate on Second Reading. London boroughs would like to see a halfway house between the accredited person and the community support officer. They would like to be able to run things jointly with the police and to be involved in these affairs. That would put them in a much stronger position. However, the one problem about that would be whether the police would then be able to whisk the neighbourhood policemen away.

Can the Minister consider whether it would be possible to bring forward an amendment which would allow the joint commissioning of a force between a local authority and the Metropolitan Police? Many London boroughs would welcome that kind of arrangement.

Lord Rooker

I dare not respond to that on the hoof. We have here two quite specific and distinct areas: community support officers and community safety accreditation schemes. One of those proposals is fundamentally opposed by the noble Lord, Lord Dixon-Smith, but the noble Baroness now asks me to look into creating a hybrid of the two.

In effect, we can only repeat that it is up to chief constables to decide, first, whether to take on community support officers and what those officers will do and then to confer the necessary powers. Secondly, we will give chief constables the right to decide whether they will accredit community safety schemes with or without local authorities and with or without the private sector.

It may be that in a place as varied as London, with 8 million people, several thousand police officers and some 32 boroughs—each a great deal smaller than Birmingham, I might add—some operations that would suit both the police and the local community could be considered. However, from a standing start, as it were, I cannot give the noble Baroness the specific answers that she requires. I believe that these proposals are outwith what is set out in the Bill.

Baroness Gardner of Parkes

Perhaps I may ask the Minister to look into this matter to the extent only as to whether the chief officer would have the power to agree to have community support officers run jointly between the Metropolitan Police and a local authority. Would he have the right to do that or would such a power have to be created? I am happy to wait for the Minister to write to me on this.

Lord Rooker

As always, I shall certainly look into the matter and write to the noble Baroness. Of course, it may be a question of who pays for the community support officers. Those are issues that must be considered. As I have said, I shall look into the matter and write to the noble Baroness.

Baroness Hanham

I think that we have raised here a point that slightly differs from what is in the Bill; that is, the possibility of creating borough constables and their being funded by and large by local authorities. My local authority is now prepared to commit quite substantial sums of money to this.

I shall return to where I started. My concern over the right to use reasonable force is that if there are going to be accredited persons on the street, they should have the power to hold someone for 30 minutes while, presumably, the police are summoned to come and help them. It is not much use if the person being held is allowed to scarper off down the road and no one has the right to bring them down with a rugby tackle. Perhaps that exaggerates the case a little. However, what is being suggested here will probably leave the accredited officers without the tools to do the job.

I understand the Minister's explanation that under normal circumstances the chief constable would have to authorise the right to detain a person using reasonable force. However, would the Minister be kind enough to look into whether there is some way the provision could be amended to enable such forces—which I believe may now spring up all over the country as local authorities take it on—to be given the right to use reasonable force? If he will, then I shall withdraw my amendment.

Lord Rooker

I am willing to look at all of these suggestions. On the other hand, I think that the noble Baroness is proposing something that contradicts the heart of our proposals. It may be that I have to be wholly negative in my response. Nevertheless, I have heard what she has said. I shall take it away and seek further advice.

Baroness Hanham

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

10.15 p.m.

Baroness Hanham

moved Amendment No. 254B: Page 124, line 11, at end insert— "Seizure of cycles (1) This paragraph applies in respect of an accredited person—

  1. (a) whose accreditation specifies that this paragraph applies to him; and
  2. (b) whose employer, for the purposes of section 35 of this Act, is a local authority.
(2) If an accredited person to whom this section applies has given a person a fixed penalty notice under section 54 of the Road Traffic Offenders Act 1988 (c. 53) (fixed penalty notices) in respect of an offence under section 72 of the Highway Act 1835 (c. 50) (riding on a footway) committed by cycling he may seize the cycle in respect of which the alleged offence was committed. (3) If any cycle is seized under sub-paragraph (2) and the person to whom the fixed penalty notice was given pays the fixed penalty before the end of the suspended enforcement period, the cycle shall be returned to that person. (4) The provisions of sub-paragraphs (5) to (9) shall have effect if—
  1. (a) any cycle is seized under sub-paragraph (2); and
  2. (b) the fixed penalty has not been paid in accordance with Part III of the 1988 Act before the end of the suspended enforcement period.
(5) Subject to sub-paragraph (8), following the conclusion of any proceedings in respect of the alleged offence the cycle shall be returned to the person from whom it was seized unless the court orders it to be forfeited under sub-paragraph (7). (6) If the recipient has not given notice requesting a hearing in respect of the offence to which the fixed penalty notice relates in the manner specified in the notice, the local authority may make an application to the court for an order that the cycle seized under sub-paragraph (2) shall be forfeited. (7) Subject to sub-paragraph (8), the court—
  1. (a) by or before which a person is convicted of an offence under section 72 of the 1835 Act committed by cycling; or
  2. (b) to whom an application for forfeiture is made under sub-paragraph (6),
may order any cycle produced to the court, and shown to the satisfaction of the court to relate to the offence, or as the case may be the alleged offence, to be forfeited and dealt with in such manner as the court may order.
(8) The court shall not order a cycle to be forfeited under sub-paragraph (7) where a person claiming to be the owner of or otherwise interested in it applies to be heard by the court, unless an opportunity has been given to him to show cause why the order should not be made, and in considering whether to make such an order a court shall have regard—
  1. (a) to the value of the cycle; and
  2. (b) to the likely financial and other effects on the offender of the making of the order (taken together with any other order that the court contemplates making).
(9) The court may order forfeiture notwithstanding that the value of the cycle exceeds the maximum penalty for the commission of an offence under section 72 of the 1835 Act. (10) In this paragraph "local authority" means—
  1. (a) in relation to England, a county council, a district council or a London borough council; and
  2. (b) in relation to Wales, a county council or a county borough council; and
suspended enforcement period" has the meaning ascribed to it under section 52(3)(a) of the 1988 Act (fixed penalty notices). The noble Baroness said: This is a simple amendment. One of the powers that the accredited officers of organisations will have is to issue fixed penalty notices for those cycling on the pavement. All I can say is, "Yippee", because we have been waiting for a long time for someone to issue a fixed penalty notice to those who bowl down the pavements and knock people over.

I am seeking an extension of a power which is also in the Bill to enable those officers to confiscate the bicycle until the fixed penalty notice is paid. We seem to be able to confiscate everything else under the Bill and I am seeking to add bicycles to that power of confiscation. It would make things easier and resolve the problems more quickly. I beg to move.

Baroness Gardner of Parkes

I support the amendment. In particular, I should like to emphasise how effective confiscation of, for example, hot dog stalls has proved. The local boroughs have found that confiscation is the only sanction that has any effect.

If the confiscated bicycle has to be transported and stored, presumably the owner will be treated in a similar fashion to a motorist who has his car towed away and will have to pay a small penalty or costs.

Lord Rooker

I am grateful to the noble Baroness for her explanation of the amendment. I agree that cycling on the pavement is a nuisance and can be dangerous. That is why we are including in the Bill the power for the extended police family, the accreditation scheme, to issue fixed penalty notices for dog fouling, littering and riding on footpaths. That power is there because those are the kinds of issues which are suitable for the functions and powers of accredited officers to address. However, I think the noble Baroness's amendment goes a little too far.

As the Committee is aware, we are determined under this part of the Bill to ensure that the community support officers and members of the community safety accreditation schemes are given powers consistent with their training and the public's expectation of their role. I realise that the expectation of their role for the noble Baroness includes taking the bicycle as well as the fixed penalty—I accept that—but we have always been clear that we do not want accredited people such as neighbourhood and street wardens, which is what we are effectively talking about, involved in potentially difficult situations—and putting a bicycle on your hack could cause a problem.

The power to confiscate could mean accredited people coming across resistance from a cyclist who may or may not have dismounted, and could involve a tricycle, which would be somewhat difficult to confiscate. They would not have the powers or the training to deal with that kind of resistance, and we do not want the people acting in this role placed in that kind of situation. That could undermine their credibility.

This is one of the issues where we have opened up not so much a can of worms but a box of gold—although not in a money sense—which will be good for local communities. The noble Baroness is right: people do want to go a little further. I am delighted to see overwhelming support from the noble Baronesses, which is somewhat in contrast to the speeches made earlier by the noble Lord, Lord Dixon-Smith. That is a pretty sour note to end on and I am sorry about that.

Baroness Hanham

I am tempted to try to extend the confiscation to the dogs, but I shall not. I am hanging on to the bicycles in the hope that, with proper training, we will be able to confer that confiscatory power on these people. I heard what the Minister said. I shall consider it and I shall withdraw the amendment for the time being.

Amendment, by leave, withdrawn.

Schedule 5 agreed to.

Clause 36 [Supplementary provisions relating to designations and accreditations]:

Lord Dixon-Smith

moved Amendment No. 255: Page 34, line 37, leave out "to that person, if requested to do so" and insert "to such person as may be present and affected by the performance of that power or duty The noble Lord said: We are back in the business of discussing public confidence. I forgive the Minister for the slight tweak at the end of his previous remarks. We do that kind of thing to each other from time to time. It keeps us awake.

The Bill provides that if an accredited officer exercises police powers on someone else, he shall show his accreditation to that person to prove that he is who he says he is. The amendment merely expands the scope of that requirement to include others who might be present so that everyone is aware that he is who he says he is. Otherwise, one can imagine the possibility of a secondary fracas arising which might cause a problem. This is a simple amendment. I ask the Minister to think about it. I beg to move.

The Deputy Chairman of Committees (Lord Brabazon of Tara)

If Amendment No. 255 is agreed to, I cannot call Amendment No. 255A.

Lord Rooker

In responding, it is worthwhile reminding the noble Lord of the wording of the amendment. It seeks to, insert 'to such person as may be present and affected by the performance of that power or duty'". I shall give a couple of examples of where that may cause difficulty. I freely admit that I do not claim authorship of the examples, but they seem to go to the heart of the amendment. They are definitely extreme examples. However, my note states that they are a good way to test the robustness of the amendments.

Let us imagine that a community support officer rescues a child from a burning house using a power conferred on him. The amendment requires the community support officer to show his designation to everyone who was present and was affected by the rescue. It could be quite a crowd—the child's family and friends, playmates, neighbours and other passersby who were witness to the events. It could be disruptive, and logistically difficult, to ensure that they were all shown the designation. Also, would the community support officer be in breach of his or her duty under this amendment if he or she were unable to track down all those who had been present?

Or let us imagine an accredited person tackling a group of children where one or two of them were smoking and drinking alcohol. If the person had to show his or her accreditation to every member of the group and to any passers-by before being able to seize the tobacco and alcohol, it would fundamentally undermine their effectiveness.

On that basis, I believe that we have got the balance about right. If a member of the public is happy not to see the accreditation or designation, it seems sensible not to create an extra bureaucratic process that must be gone through. If, on the other hand, they do wish to see the accreditation or designation, then the Bill provides for that. So it is not a question of the public being denied, of the person concerned saying: "Who are you? What is your power? Where is your badge?". That is fair. At present, we do not know what form it will take. It may take the form of a photo identity card, it may take some other form.

All designated officers—community support officers, detention officers, escort officers and investigating officers—will be uniformed and easily identifiable. They will carry their designation and will be required to show it to the person to whom their actions relate when asked to do so. I believe that that is a fair way of operating.

Lord Carlisle of Bucklow

In view of the first everyday example given by the Minister, will the accredited officer then have to show people the MBE which he received for saving the child from the house?

Lord Dixon-Smith

I am grateful to the Minister. I was tempted to say touché, but then I realised that the Bill would require the person rescuing the child from the fire in the house to show the child his accreditation before he rescued him. We have a little difference between us on the issue, but I am being facetious. The Minister has provided a reasonable explanation and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 255A not moved.]

Lord Rooker

moved Amendments Nos. 256 and 257: Page 34, line 39, leave out from "designation" to "35", in line 40 and insert "by a chief officer of police under section 33 or his accreditation under section Page 35, line 5, at end insert— ( ) A Director General may at any time, by notice to a person he has designated as an investigating officer under section 33, modify or withdraw that designation.

On Question, amendments agreed to.

Lord Dixon-Smith

moved Amendment No. 258: Page 35, line 5, at end insert— ( ) The decision by the chief officer to modify or withdraw the designation or accreditation shall not be subject to appeal or judicial review or found any claim for damages at law or otherwise. The noble Lord said: The aim of the amendment is to ensure that, in the event of a chief officer withdrawing a designation from an individual or a firm, there can be no kickback to him for so doing. That seems a sensible precaution.

The same principle applies to Amendment No. 259, which would leave out the question of liability. It would remove the possibility of the employer of an accredited person being found liable for, shall we say, a misaction by one of his employees when that employee was using police powers.

Both amendments are sensible. Although we covered the points raised in the second amendment earlier to some extent, I hope that the Minister will consider them. They do not seem unreasonable additions to the Bill. I beg to move.

Lord Rooker

Throughout today's debate and a good part of our earlier debates, it has been stressed that we are putting the role into the hands of the chief officers. It is their decision whether to go down this road. They will be able to remove accreditation and it will be their decision to do so.

A code of practice will be issued to chief officers covering the exercise of their powers to modify or withdraw designations and accreditations. Where they are accrediting employees of another employer, it will also include guidance on consultation with that employer to ensure that they are fully informed of any proposal to modify or withdraw. Designated persons will be employees of the police authority. Accredited persons will be employees of the employer who has entered into arrangements with the chief officer. Employment law will apply if designated or accredited persons feel that they have been ill treated in the course of their employment.

Overall, it is probably right that the Bill should not give a right of appeal against removal or modification. That power should lie with the chief officer's discretion. Obviously, it cannot be done unreasonably. There has to be a reason. There will be a code of practice to govern such circumstances.

It may look a little unfair that there is no right of appeal, but the initial designation and accreditation is done not in a prescriptive fashion, but by an enabling power at the police officer's wish and decision and not at that of anybody else. The policing of an area is the responsibility of the chief officer. If they decide to change the rules and remove or modify designation or accreditation, it should be up to them. They will, of course, be subject to other rules, such as the reasonableness test and employment law in other respects, but we should not interfere by putting in a right of appeal as is envisaged.

10.30 p.m.

Lord Dixon-Smith

I am fascinated by the Minister's reply. The amendment specifically states that accreditation shall not be subject to appeal or judicial review or found any claim for damages at law or otherwise". My amendment therefore seems to express the Minister's desire, and there seems to be nothing between us. The Minister even seems inadvertently to have agreed my amendment. It is an interesting situation. I think that, with that happy thought, we shall both go away and study the matter. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 259 to 261 not moved.]

Lord Rooker

moved Amendment No. 262: Page 35, line 20, at end insert— ( ) For the purposes of determining liability for the unlawful conduct of an employee of a Service Authority, conduct by such a member in reliance or purported reliance on a designation under section 33 shall be taken to be conduct in the course of his employment; and, in the case of a tort, the Service Authority shall fall to be treated as a joint tortfeasor accordingly.

On Question, amendment agreed to.

Clause 36, as amended, agreed to.

Clause 37 [Removal of restriction on powers conferred on traffic wardens]:

Clause 37 agreed to.

Earl Attlee

moved Amendment No. 263: After Clause 37, insert the following new clause— "ADDITIONAL POWERS OF TRAFFIC WARDENS: ABNORMAL LOADS In section 96 of the Road Traffic Regulation Act 1984 (c. 27) (additional powers of traffic wardens), after subsection (2)(d), there shall be inserted— (e) any order made under section 1 or 6 of this Act relating to the movement of an abnormal load where "abnormal load" means a load, including the carrying vehicle, whose weights or dimensions—

  1. (i) exceed those within regulations made under section 41 of the Road Traffic Act 1988 (c. 52), or
  2. (ii) are such that regulations made under section 41 of the Road Traffic Act 1988 require movement of the load to be notified to the chief officer of police.""
The noble Earl said: I declare an interest. I am president of the Heavy Transport Association and close to other associations, and I operate my own abnormal load vehicle.

I am a little surprised that we did not debate Clause 37, and I was worried that the Committee might not accept it. Later, I shall move amendments on the escorting of abnormal loads, a task currently undertaken by the police.

Sometimes during the movement of an abnormal load, it is necessary for the operator to request what are termed "special facilities". They entail the police, and only the police, facilitating and authorising the driver to go right at a "keep left" sign, the wrong way up a one-way street, the wrong way around a roundabout, or to drive for a distance on the wrong side of the road. It could well be that, on a 30-mile movement, special facilities are required at only one location, which is often at the start or the end of a journey. Unfortunately, however, a police escort is required for the whole journey. That is clearly not an effective or good use of police resources.

Can the Minister say whether Clause 37 as drafted provides the necessary powers to authorise special facilities, or is an additional clause—such as the one I propose in Amendment No. 263—required? It would be desirable for traffic wardens to have these powers regardless of whether my later amendments find favour with the Committee. I beg to move.

Lord Rooker

I am sorry that the noble Earl, Lord Attlee, thought that Clause 37 might disappear. However, we have broad sympathy with the intended aim of Amendment No. 263. I understand that he has discussed the matter with my right honourable friend John Denham, who is the Minister of State responsible for the Bill. Like the noble Earl and ACPO, we should like to see a reduction in police involvement in such work. We are actively considering how to ensure that we have the best arrangements for escorting abnormal loads.

I understand that, today, my right honourable friend met ACPO representatives. In the circumstances, therefore, I do not think that the amendment is necessary or the best way of proceeding. It would be inappropriate to specify in detail what regulations must be made with regard to one issue but not others.

I did not address the Question that Clause 37 stand part of the Bill. However, I refer to traffic wardens and the power to authorise drivers of abnormal loads to break traffic rules such as driving round roundabouts the wrong way. In my years of driving I have once or twice observed instances when it was fairly obvious that a heavy load was not going to negotiate a roundabout by going round it the right way. Yet it was fairly obvious that if those loads had taken the wrong way round the roundabout they would have negotiated it easily. However, I was not in a position to summon the police to sort out those situations. Traffic wardens could direct those situations as part of their general power to direct traffic. The powers to direct traffic are contained in Section 35 of the Road Traffic Act 1988 which states that a driver must comply with directions given by a constable. Section 37 of that Act states that pedestrians must comply with directions given by a constable. Those powers are applied to traffic wardens by virtue of the Road Traffic Regulation Act 1984, as amended.

However, I come to the rub. If traffic wardens were to authorise drivers of abnormal loads to break traffic rules on a regular basis, there would be significant implications for additional training requirements and so on. I hope that there is some scope on the matter as regards the discussions that are taking place between the Minister and ACPO. We have general sympathy with the points that the noble Earl has made. I hope that we can arrive at a satisfactory solution to the clear problem which he has identified.

Lord Bradshaw

Before the noble Earl replies, will the Minister tell us in plain English what extra powers traffic wardens get under Section 37? I thought that they had a lot of extra powers to give directions to cyclists and others.

Lord Rooker

I have a note which is about 50 words long. However, the point is that the powers to direct traffic are contained in the Road Traffic Act. Under Section 35 a driver must comply with directions given by a constable. That power was given to traffic wardens under the Road Traffic Regulation Act 1984. Therefore, traffic wardens have the power to give a driver an order with which he must comply. Indeed, they also have the power to give pedestrians an order with which they must comply. To that extent their powers are exactly the same as those of a constable. Traffic wardens can tell a driver to stop, go right, go left or start. I imagine that that power would get most people out of a mess.

Lord Bradshaw

I wish to be clear that the Road Traffic Regulation Act 1984 and the Road Traffic Act 1988 are extended in Clause 37. I simply inquired whether the extension was sufficient to meet the point the noble Earl, Lord Attlee, made or whether further extension was necessary.

Lord Rooker

I shall try to give a little more detail. The powers I have mentioned were given to traffic wardens but in some cases they can be exercised only in certain circumstances. Section 96(3) of the Road Traffic Regulation Act 1984 provides that traffic wardens can exercise general police power to stop vehicles under Section 163 of the Road Traffic Act 1988 only in a limited range of circumstances. That restricts the functions they can carry out. It means that generally police officers must be employed in undertakings where it may be necessary to stop vehicles, even though their powers may not be required.

Clause 37, which we passed, removes that restriction by deleting the reference to Section 163 as one of the enactments under which powers can only be used in certain circumstances. That means that traffic wardens will have the same power to stop vehicles as that currently held by police officers. That removal of an unnecessary bar to the type of powers traffic wardens can undertake will enable their use in a wider range of circumstances as deemed appropriate locally and will thereby reduce demands on the police where the only additional power required is the power to stop. That will free up police officers who currently have to supervise such things as vehicle emission checks. My briefing then states: I beg to move that Clause 37 stand part of the Bill". I think that the noble Earl has got the message from that. I hope that it is a good explanation of his in some ways legitimate desire. I wish that I had spoken to Clause 37 after all.

Earl Attlee

The Minister is not the only one!

I am grateful to the Minister for his comments. The amendment specifically examined the powers of traffic wardens in order to facilitate private escorting. I shall move Amendment No. 333 at a later stage, which will give the Minister an opportunity to give a more informed response as a result of our discussion on this amendment. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 38 [Power to amend Chapter 1]:

[Amendment No. 264 not moved.]

Lord Rooker

moved Amendment No. 265: Page 36, line 4, after "(2)" insert "or (2A)

On Question, amendment agreed to.

On Question, Whether Clause 38 shall stand part of the Bill?

Lord Dixon-Smith

The clause is one of those glorious Henry VIII clauses that we see with monotonous regularity in legislation emanating from the Government. It will give the Secretary of State by order the power to, "modify the provisions or—in this case— Schedule 4 by … amending or repealing any provision of that Schedule". or by, adding powers or duties to the powers and duties specified in that Schedule as applicable by a designation … The Secretary of State may by order modify the provisions of Schedule 5 so as to authorise the conferring or imposition, on an accredited person, of powers and duties in addition to those contained in Schedule 5 … An order under this section may make provision for such modifications of any enactment (whenever passed) as appear to the Secretary of State to be appropriate for the purpose of facilitating the exercise or performance of any power or duty which becomes capable of being conferred or imposed by virtue of an order under this section". That is a glorious mélange of facility to amend primary legislation by regulation. We see that periodically. One could just about record the fact that this is a necessary statutory inclusion and that my objection is a necessary statutory objection.

I accept that when one finally gets to the end of the clause, it states: The Secretary of State shall not make an order containing … any provision authorised by this section unless a draft of that order has been laid before Parliament and approved". That is frightfully kind of the Government! We give the Secretary of State powers—I stress that it is Parliament that authorises that, not the Government—to amend primary legislation with a slip of paper that we more or less whip through on the nod. This may be deemed to be a reasonable procedure—it has been used many times previously. Each time that I have come across it, I have objected to it and will continue to do so. It may be for the administrative and legislative convenience of the Government but I still do not think that it is justified. If there is primary legislation, it should take primary legislation to amend it. That fairly simple point is our objection to the clause.

Lord Rooker

I was rather surprised that the noble Lord did not mention that in its report on the Bill, the Delegated Powers and Regulatory Reform Committee made no comment whatever on the order-making power contained in the clause, other than to confirm that the affirmative resolution procedure was appropriate. I rest my case.

Lord Dixon-Smith

I had to leave the Minister something to say! He is quite right, but that does not mean that one has to accept or agree with the report. I hear what he said and I shall not oppose the Question whether clause stand part.

Clause 38, as amended, agreed to.

10.45 p.m.

Clause 39 [Code of practice relating to chief officers' powers under Chapter 1]:

Lord Rooker moved Amendments Nos. 266 and 267:

Page 36, line 26, after "police" insert "and by Directors General".

Page 36, line 31, after "police" insert "or a Director General".

On Question, amendments agreed to.

On Question, Whether Clause 39, as amended, shall stand part of the Bill?

Lord Bradshaw

I believe that this matter returns to the discussions we had about Part 1 of the Bill. We received assurances from the Minister that he will come back to us on that point. But there are issues in the clause we do not like. We want there to be a requirement to consult the police authorities which will have community support officers, and in future we want that to be a permissive power. I shall not go on at length about that at this time of night, but we wish formally to oppose Clause 39 because we believe that it will be subject to amendment at a later stage.

Lord Carlisle of Bucklow

I hope that at this hour of the evening I shall not be held to be unduly suspiciously minded in asking the Minister what is behind the clause. Rightly, he has told us on many occasions during the course of debate today that the employment, for example, of the community support officers will be completely under the control and in the hands of the chief officer of police of the area concerned. Then we find that Clause 39 suddenly seems to give a great deal of power back to the centre. It states that: The Secretary of State shall issue a code of practice about the exercise and performance by chief officers of police of their powers and duties under this Chapter", and that the police, in discharging any function under this chapter, shall have regard to the code". I ask the Minister whether that means that the Secretary of State may, if he wishes, issue a code of practice which states that the chief officer of police shall exercise his powers and duties under this chapter by the employment, for example, of community policing. We were told that it is clear that it is to be left to the local chief officers and local areas to decide whether that is suitable for their purposes. Yet it seems to me that the clause, as it stands, gives powers to the Secretary of State to make orders which could direct chief officers to employ such people when they may not necessarily wish to do so.

As I said, I am probably being unduly suspicious. But I have a slightly suspicious mind when it comes to this Government appearing, on the one hand, to convey power to other people hut, in fact, bringing more and more power into the centre.

Lord Elton

I associate myself with those remarks, which chime very closely with what I said during debate on an earlier amendment about exercising power from the centre by means of direction. This is being done by means of guidance. It is the same wolf in a different sheep's clothing.

Lord Tope

In our earlier debates on parts of the Bill the Minister was emollient—I believe that that was the word often used—about consultation with the APA and ACPO. Should this clause be agreed to, and should the Secretary of State be empowered to issue a code of practice, there is nothing in the clause that requires him to consult in any way the APA or ACPO. Can the Minister show that he is still emollient and assure us that, if the clause remains, he will return with a requirement that the Secretary of State will consult the ACPO and the APA before issuing the code of practice?

Lord Rooker

I am a naturally suspicious person, but I can say to the noble Lord, Lord Carlisle, that the code of practice would not allow the Secretary of State in effect to order chief officers to operate the community support officers scheme. That would be contrary to provisions on the face of the Bill in previous clauses. The code of practice, which I referred to in passing on one or two other amendments, cannot be used to do that. It contains, for example, advice on protective clothing and equipment and on making a criminal record check before persons are designated. That is the meat of the code of practice. Its purpose is not to undermine or overturn what is in the earlier part of the Bill. The criteria to satisfy the test in Clauses 33 and 35 concern the capability of persons to carry out certain functions and standards of training.

The purpose of the code is to make the scheme operational, not to make the whole country the same. I suppose that the code will have to state that the badge for accredited officers must be of a certain size and colour. The purpose of the code is not to reverse fundamentally what we have discussed.

I have no problem with consultation, and shall take that away for consideration. It seems to me inconceivable that my right honourable friend would issue a code of practice without consulting with ACPO or the police authorities. However, we shall take that away for consideration.

Lord Carlisle of Bucklow

I thank the Minister for giving me the assurance that he did on the way in which the code of practice will operate. I accept his account of what he says he will do. I have nothing further to add on the clause.

Clause 39, as amended, agreed to.

Clause 40 [Offences against designated and accredited persons etc.]:

Lord Dixon-Smith

moved Amendment No. 268: Page 36, line 33, leave out subsection (1). The noble Lord said: We were fascinated by this part of the law. I can well understand that if one assaults an accredited person, one is committing an offence. However, one wonders why one needs to create yet another offence of assault. My legal eagles tell me that there is a well- established criminal law against assault enacted in the Offences Against the Person Act 1861. I have difficulty in understanding why that would not apply if someone committed an assault against an accredited person. This is a neat, probing amendment to see why we need to have yet another specific assault law when assault is already well covered. I beg to move.

Lord Rooker

I am not sure that this issue is covered. I believe that we need this part of Clause 40 and it would be a mistake to remove it. Everyone acting in an official capacity within the police service should be able to do so without fear for their own safety. Where they are exercising police powers, however high or low such powers may be, they are right to have a reasonable expectation that an attack on them would be treated with the same seriousness as an attack on a police officer. That is why we do not want to accept Amendment No. 268. It follows, therefore, that this clause is an important part of the Bill.

Aside from the offence of assaulting designated or accredited persons, the clause sets out various other offences relating to obstructing or impersonating such persons. That is not an unimportant point. There will be more uniformed people on the streets of this country at community level. It is important that people with other purposes in mind do not abuse that. We must ensure that impersonating designated or accredited persons is an offence. That parallels the provisions for assaulting, obstructing or impersonating police officers contained in Sections 89 and 90 of the Police Act 1996. Not only should there be protection for support staff; there must be appropriate penalties where others seek to deceive by suggesting that they are designated or accredited persons. There is also an important safeguard for the public in that it is also an offence for a designated or accredited person to make any statement or to act in any way that falsely suggests that he has powers over and above those that he has. That itself is not unimportant, given that we have said throughout that chief officers have a menu from which to choose.

Chief officers will choose which powers accredited persons and community support officers will operate. They will vary in different areas. It would be wrong and an offence for accredited and designated persons who feel that they should have powers not given them by the chief constable to claim that they have those powers. I ask the noble Lord to think twice before pressing his amendment.

Lord Dixon-Smith

The Minister seems to assume that the amendment relates to Clause 40 standing part of the Bill. In fact, Amendment No. 268 simply deals with assaults on accredited persons. I am surprised if we are not creating specific offences to deal with assaults—as earlier police Acts have done in respect of police officers. The reason is almost certainly that each time that was done, it raised the level of penalty. In light of the Minister's explanation, which I shall study, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 40 agreed to.

Clause 41 agreed to.

Lord McIntosh of Haringey

I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.