Police Reform and Social Responsibility Bill

I need to correct a mistake I made in 1996-97. It was not the only one I made then, but it is the only one I may have a chance to rectify at the present moment. Putting the police under the statutory provisions of the Health and Safety at Work etc. Act was my policy and my responsibility. I was the Police Minister at the time; I was the guilty man. Admittedly, I was aided and abetted by the whole of ACPO, the Police Federation, the Police Superintendents’ Association, the whole police department of the Home Office and all the police authorities. In this House, the late Lord McIntosh of Haringey said that it was his duty to oppose things but that there was nothing in the Bill that he could find to oppose. All the great and the good, and even I, thought this Bill was the right thing to do. It was a jolly good move and put the police on the same basis as other workers, and we thought there would be no problems. In that frantic legislative climate at the end of 1996-97, heading up to the election, the Police (Health and Safety) Bill was given to a Back-Bencher in another place to introduce as there was no time in the government programme—I believe I had led on about 15 Home Office Bills in that last Session. It was bounced through on the nod in another place at 2.30 pm on a Friday, not having received any debate whatever. It then got 45 minutes in Committee, on a Friday. There was no Report or Third Reading. When it got to this House, it had 19 minutes of debate at Second Reading and, since no amendments were moved, it had no Committee stage, no Report stage and no Third Reading stage; and it passed into law. I am not being critical here, because I put through Bills with even less scrutiny. However, this Act received a total of 64 minutes’ scrutiny in both Houses of Parliament. From a total of about 1,400 Members of both Houses, only one Member queried its provisions. So, I pay tribute to Mr Michael Fabricant MP, who at the Committee stage in another place, said: "““The other area that disturbs me is that my right hon. Friend the Minister of State at the Home Office””—" that was me— "““is reported … as telling a seminar: ‘One of the difficulties in moving towards a statutory regime’—such as this—‘has been the fact that policing duties and the environment in which they are carried out are so different from those which generally apply in factories, offices and other static premises’””." Mr Fabricant went on to say, "““that concerns me deeply … That question must be dealt with, however, as it is at the heart of the Bill””." He went on to ask what action officers should take when faced with danger. Do they retreat or intervene? He queried the potential conflict between the operational independence of chief officers and the powers of the health and safety inspectors. He said: "““Those problems have not been properly addressed by the Bill””." For an answer, Mr Fabricant was given the reassuring line to take which I had prepared and approved, having apparently changed my mind in the intervening period since I had addressed the seminar. That answer was: "““A potential conflict remains between the requirements of health and safety and the operational requirements of the police service but it is well understood by all parties. I am optimistic that those conflicts will always be resolved in a sensible manner against the background of the statutory provisions of the Bill””.—[Official Report, Commons, 14/2/97; cols. 578-584.]" Yet, just six years later, two of the finest Metropolitan Police Commissioners who I have ever had the privilege to work with stood in No. 2 dock at the Old Bailey, in the same dock where people are tried for murder and treason, defending themselves against a criminal offence because a brave police officer, PC Kulwant Sidhu, died when pursuing a criminal in the course of his duties and because another police officer had been injured in another incident. I take this opportunity to apologise publicly to the noble Lords, Lord Condon and Lord Stevens, for the injustice that they suffered from a law that I was responsible for and which went through with inadequate scrutiny. That prosecution was outrageous, wrong, misguided, expensive and so lacking in common sense that it convinces me that one cannot leave a provision on the statute book which can be abused by bureaucrats—admittedly, well-meaning bureaucrats. It should be amended. I am not alone in thinking that, thank goodness. Your Lordships will be aware that my noble friend Lord Young of Graffham stated in his report, Common Sense, Common Safety: "““Police officers … should not be at risk of investigation or prosecution under health and safety legislation when engaged in the course of their duties if they have put themselves at risk as a result of committing a heroic act””." The Health and Safety Executive, ACPO and the CPS, my noble friend concluded, "““should consider further guidance to put this into effect””." My noble friend Lord Young is absolutely right in coming to his analysis of the problem and I believe that the principle of what he has enunciated is now government policy. With respect, however, my noble friend has misdirected himself in his last sentence. He has suggested that the Association of Chief Police Officers, the Health and Safety Executive and the Crown Prosecution Service should get together and ensure that police officers should not be prosecuted for a possible breach of the law. That is not the right way to go about it. If it is the law, it should be enforced. What signal does it send if a cosy deal has been done between the CPS, ACPO and the HSE not to prosecute police officers? No—the approach must be: if we do not want to see police officers in the dock and being prosecuted for that sort of breach, we must amend the current law which allows it to happen. I believe that my proposed new clause, while no doubt inadequately drafted and with some technical flaws, attempts to do just that. It seeks to ensure that chief officers are not prosecuted for a health and safety breach while trying to ensure that ordinary police officers are not disadvantaged and receive full employment law protection. At the same time, it does not leave a big black hole with no health and safety guidance whatever, because I want HMIC to promulgate non-statutory guidance. I turn to the specific subsections of the clause. Subsection (1) says that, "““No police and crime commissioner nor chief officer … shall be liable for prosecution under any health and safety enactment””. " Perhaps I should have added, ““Nor any other person holding the rank or office of constable”” because I do not want anyone, of any rank, to be prosecuted by the HSE for a breach of health and safety. On subsection (2), which again I fear with hindsight I have not adequately drafted or properly explained, the Police Federation has got the wrong end of the stick. This subsection says: "““No police and crime commissioner nor chief officer … shall be liable””," to pay, "““damages or compensation for … injuries caused as a result of””," a health and safety breach. I do not intend that to apply to police officers in the course of their duty. Of course, all police officers of whatever rank must receive full damages and compensation for accidents at work—that is the normal employer's vicarious liability law. I merely intended that subsection to apply to outsiders or, shall we say, third parties. Hypothetically, if a bobby rugby-tackles a burglar who is running away from the scene and the burglar knocks down some other member of the public, the police might be accused of a breach of health and safety there and be sued. I do not want others to get on the back of the health and safety compensation culture and sue the police without valid reason. The third subsection goes to the heart of it: "““A police officer in the execution of the officer’s duty who believes that””," he or she has to take a certain action, "““to prevent crime … to prevent risk to the health and welfare of others, or … to save the lives of others, shall not be prevented from taking that action or actions by the intervention of any … public official, of whatever rank””," who says, ““You can’t do that, Guv. It's health and safety, you know””. That could deal with some of the reports coming out of the 7/7 inquiry on the Aldgate bombing, where evidence was given that police officers were deterred from going underground because some official said that the area was not yet clear. I believe the learned judge's report said that even if the officers had got in instantly, it was unlikely that they could have done anything to save the victims there. Nevertheless, if a police officer thinks, ““There’s something happening and I have to take action on it””, that officer should not be deterred by another official who says, ““You can’t risk your life there. You cannot take that risk because I am making a decision that you, as a police officer, are not fit to take that decision for yourself””. That is wrong and my amendment tries to change it. In subsection (4), I say that it will therefore be an offence for a public official, of whatever rank, to try and obstruct a police officer who wants to take that action, "““to prevent crime … to prevent risk to the health and welfare of others, or … to save … lives””." In subsection (5), I have put that once the officer makes that decision that he or she is going to take a risk, he or she cannot compel someone else to join them. I am not being critical of police sergeants, who are wonderful people, but let us say that a sergeant decides, ““I am going to rush into that burning building and you lot are going to join me””. This would prevent him compelling other officers to take the voluntary risk that he or she wished to take, and that is right. If someone wishes to step outside what may be the normally regarded health and safety ambit and risk their life to save a member of the public, that person should not have the power to compel others to make that judgment. Subsection (6) repeals certain sections of the Police (Health and Safety) Act 1997. I have left in Section 3 of that Act, on the right of a police officer, "““not to suffer detriment in health and safety cases””," and Section 4: "““Right of police not to be dismissed on certain grounds relating to health and safety””." That was my attempt, which I accept may be inadequate legally, to ensure that ordinary police officers who suffer an injury are not disadvantaged or sacked and told, ““You can't get damages or compensation””. If it is inadequate in its purposes to do that, I am quite happy to have my noble friend the Minister’s expert draftsmen make sure that it covers it. Subsection (7) gives a responsibility to Her Majesty’s Inspectorate of Constabulary to, "““issue general guidance on health and safety””," because we do not want to leave a black hole of no health and safety cover at all. All I am suggesting in this amendment is that the police should not be subject to a statutory requirement to comply with the 1974 Act, but they will of course wish to. Every single chief officer in the land will wish to make sure that all the officers under his or her command are as safe as is humanly possible and able to do their duty. I have read a comment from a member of the Police Federation who said, ““If this proposal of Blencathra’s goes through, we will be back to the bad old days of policemen having to grab dustbin lids to defend themselves””. I say to your Lordships that if this went through, I cannot imagine any chief constable deciding that he was going to downgrade the safety equipment of police officers. When I had the privilege of being a Minister and when the noble Lord, Lord Condon, was police commissioner—this must have been in 1993—he came in to brief me on all the work that the Met was doing on try to find stab-proof vests, because they already had quite good bullet-resistant vests. He was desperate to find vests that would stop knives penetrating them; they are actually more difficult to find than bullet-resistant vests. They had of course developed all the other protective measures, such as shields, and were looking at the ASP side-handle baton. All around the country at that time—and not just when I was Minister, but in the 1980s and 1990s—chief officers were trying to find the best ways of protecting their people. That was long before we introduced a statutory requirement for them to do so. If the statutory requirement is taken away, it will be nonsense to suggest that there will be any serious diminution in the practical health, safety and welfare of police officers. This is a good task for HMIC. The police service is awash with health and safety guidelines and codes of practice. We should give HMIC the job to promulgate these, add new ones and ensure that there is a consistent, coherent system. Finally, subsections (8) and (9) of the proposed new clause make it clear that if HMIC were promulgating this guidance, it would not then have the force of law and people could not sue and say, ““You didn’t follow the guidance, therefore I want compensation””, or ““You didn’t follow the guidance, therefore we are going to prosecute you for not following informal guidance””. That is a catch-all. I am sorry that I have taken so long to describe my amendment, but I think that this is a very important issue. One thing that worries me is the growth of the health and safety culture. In his report, my noble friend Lord Young pointed out that half the stories one hears in the press are not true, such as that of the policeman who could not jump into the paddling pool to rescue a child because of health and safety rules. A lot of those are untrue and a lot are exaggerated. I know that one has to exaggerate things for form—I have done it millions of times. But there is no doubt that police feel held back by health and safety. If they do not all feel that they are held back in some way, there is certainly a view in the press and the media that the police are not responding fully in the way you expect a bobby to do because health and safety requirements are tying their hands. That is damaging to the whole police service. I believe that this significant gesture—not just in terms of preventing good officers appearing in the Old Bailey on ridiculous charges—of removing the legal framework while keeping a practical working framework of health and safety would do a tremendous amount to reverse the health and safety culture which is perceived to be in the police service. I beg to move.