I beg to move amendment No. 12, in

clause 4, page 4, line 19, after 'out', insert 'with the authority of an officer with the rank of superintendent or above'.

With this it will be convenient to take amendment No. 30, in

clause 4, page 4, line 20, leave out 'with' and insert 'between an officer of at least the rank of inspector and'.

The amendment would make an important and sensible change. The intention behind the clause was clear to me when I first read it, but became much less clear when I started to consider what was already in the Police and Criminal Evidence Act 1984, and when I read the explanatory notes. I may have completely misunderstood what is intended, in which case the Minister will put me right.

The explanatory notes state that the provision

''enables reviews of the continuing need for detention without charge . . . to be conducted over the telephone rather than in person at the police station'',

as is currently the case. However, under section 40 of the 1984 Act, provision is made for review when a person has been arrested and not charged. Section 40(1)(b) states that a review must be carried out

''in the case of a person who has been arrested but not charged, by an officer of at least the rank of inspector who has not been directly involved in the investigation.''

Section 40A(1) states:

''This section applies, notwithstanding anything in section 40 above, where in the case of a person who has been arrested but not charged . . . it is not reasonably practicable for an officer of at least the rank of inspector to be present in the police station where that person is held to carry out any review of that person's detention that is required by subsection (1)(b) of that section''.

The review is not a conferencing review. Section 40A(2) continues:

''The review may be carried out by an officer of at least the rank of inspector who has access to a means of communication by telephone to persons in the police station where the arrested person is held.''

The Minister and I may be on common ground, but under the current rules it is possible to carry out reviews of detention of a person who has not been charged by telephone. To that extent, the explanatory notes are misleading or I have not understood something important about them. What is the consequence of the clause as it stands?

The new subsection seems to remove the need for the involvement of any police officer at inspector rank. It states:

''A review under section 40(1)(b) may be carried out by means of a discussion, conducted by telephone, with one or more persons at the police station where the arrested person is held.''

The new subsection does not specify who is supposed to carry out the necessary discussion. It is a wondrously nebulous concept that to carry out a review one has only to pick up a telephone and talk to some unspecified disembodied individual at the other end. What is the intention behind this provision? I detect that the need for the inspector's presence at the other end of the telephone has been removed.

The hon. Gentleman has ''Archbold'' there, so can he tell us who is required to carry out a review under the existing section 40(1)(b) of PACE?

Yes. Under that section, when a person is arrested but not charged, the work must be done by an officer of at least the rank of inspector who has not been directly involved in the investigation. The new section 40A appears to add the rider that if the inspector is not present at the police station, he can communicate over the telephone with those who are. It is perfectly comprehensible.

It is noteworthy that new section 40A does not specify that the inspector should not be the one who is engaged in the investigation. That follows logically because he is not at the police station at the time. I understand the present rules, but not what the new rules are intended to achieve. As I told the Minister, something is missing from the explanatory notes, which I do not understand, so the purpose of the amendments is to probe the position. Until I can

understand what the Minister intends, it is difficult to know how best to amend the provisions.

I find it particularly difficult to understand why the need for a police officer of at least inspector rank should be removed from the process entirely. Is that the intention? At this stage, the best thing would be for me to sit down and listen to what the Minister has to say. I shall then exercise my right of reply if I am dissatisfied with his explanation.

I shall speak in support of the hon. Gentleman. I have been round this course before when we debated the Anti-Terrorism, Crime and Security Bill a year ago. On another previous Bill, too, we discussed changing the rank of police officer—bringing it down a peg from inspector to superintendent—appropriate to authorise detention powers. We also debated the perfectly reasonable proposition of enabling some form of checking from afar in order to avoid making police officers run around different police stations.

Two questions follow from the two amendments. The first is, what is the justification in practical terms for moving down a peg in seniority in these cases? Logically, the more it becomes possible to review from a distance, the less the need for a low-ranked officer. Understandably, if someone had to be in the station, it would have to be a superintendent, because an inspector could not get to the station every six or nine hours. However, if it were someone from afar, they would not need to be of a lower rank, because inspectors are available across a police force area very easily down a telephone. The proposal is for a twin-track change, to reduce the seniority of the officer and to allow them to conduct reviews from a distance. The Minister must justify both the parts to which I have referred.

Secondly, with regard to the amendment and the clause as a whole, it is not clear quite what the line of communication will be, as the hon. Member for Beaconsfield said. I have a proposition to test that for the Minister. If a person and their legal representative accept from the beginning that the person is likely to be detained for a long time for various reasons, there will be no great concern periodically. Everyone will almost have signed up in advance to the fact that the six-hour or nine-hour check will happen. If there is consent, a video link from afar may be used—even, arguably, with a less senior officer.

Let us imagine, however, that the case is controversial. It could involve a young adult who had come under the remit of the Youth Justice Board, which has made clear its views about the sort of detention that we are discussing. That would involve wholly different considerations. One might want to insist that a more senior officer be in the cell at the police station to see what is going on, in order to satisfy everyone, not least the young adult, that their interests are being looked after.

I am anxious that we should know much more clearly the two justifications that we have probed with the amendments, and the linked justification for the

much less clear line of communication proposed by the clause.

May I just say how much I welcome the clause? It will certainly be extremely valuable to the Nottinghamshire constabulary.

As I understand it, inspectors will still be the officers responsible; I am sure that the Minister will correct me if I am wrong. The review after six, nine and 24 hours is an incredibly onerous burden on an independent inspector, who is not associated with the case. In my area, it involves officers who are trying to serve at the Bridewell in Nottingham, which I think is the busiest prison handling centre in Europe, regularly dashing from there to various locations throughout Nottinghamshire.

The measure will be well received. I do not know the whole history of PACE, but I imagine that when it was introduced, perhaps as a reaction to some of the things that the police service should not have been doing at the time, things may have gone a little too far in the other direction. This measure rebalances in a common-sense way the rights of the person who is held and the right of the police service to get on and do its job.

It may help if I draw attention to paragraphs 104 to 106 of the explanatory memorandum. The hon. Member for Beaconsfield read from the overview, which is at the beginning, but there is a more detailed explanation on page 22. In addition, the section 40A that he quoted is not yet in force. I am advised that it was inserted by the Criminal Justice and Police Act 2001.

Currently, as paragraph 104 states, telephone reviews are allowed only

''where it is not reasonably practicable for the reviewing officer to be present at the police station.''

The clause simply broadens that. My hon. Friend the Member for Nottingham, North is absolutely right. For the avoidance of doubt and to show that amendment No. 30 is unnecessary, I point out that all reviews of detention without charge, including telephone reviews, must be carried out by an officer of at least the rank of inspector. That is unchanged.

I now understand the Minister more clearly, but if that is the case, why are we tinkering with the provision? If it has been amended by the 2001 Act, which provides the same power but in much clearer terms, why are we amending a piece of legislation that was passed only last year? The clarity does not appear. This wording is in a much shorter form than last year's legislation.

The answer is that it is in the interests of greater flexibility. A number of these changes to PACE are intended to help the police to operate their powers. We believe that telephone reviews are generally a satisfactory alternative to reviews conducted in person. The considerations to be taken into account when deciding whether to carry out a review by telephone will need to be covered in further guidance. However, we do not think that such reviews should be considered so exceptional as to require a

senior officer's authority. That is why I would also ask the Committee to resist amendment No. 12. Indeed, if such authority were required the police would lose a lot of the flexibility that the clause is intended to provide.

So the Minister is saying that the difference between the clause before us and section 40A brought in by the CJPA 2001 is that the CJPA 2001 had a reasonable practicability test and this clause does not even require that. It simply puts it on a routine footing.

That is exactly what the clause is about.

It still leaves the question that was not really answered by the Minister. We are trying to make law making sensible. Surely these matters are reviewed and changed once every five years, or once every three years; but to do it pretty well every year suggests that someone has not thought very far ahead.

I am not sure that I agree with the hon. Gentleman. There is nothing wrong with reflecting upon experience. If it is found that a further change would give the police greater flexibility and support in doing their job, I do not see the problem. No one argues about providing this greater flexibility, subject to the safeguards that I have pointed out. I therefore resist the two amendments, but I hope that our useful discussion has clarified the matter raised by the hon. Member for Beaconsfield.

I certainly will not press these amendments to the vote. It is either take clause 4 or resist it in its totality. To that extent, amending it seems unnecessary, particularly in the light of the existence of section 40A, which could presumably be brought into effect at the stroke of a ministerial pen. It is on the statute book just waiting to be brought into force.

I am not altogether happy with this development. I accept that measures taken to make police officers' life easier and enable them to focus on other things are important. I can see that there are good grounds for doing that if it frees up police officers to be operational. Nevertheless, the decision as to whether someone's detention without charge should be extended is important. It touches on their civil liberties and it should not be taken lightly. It is one thing to enable something to be brought into being by a police officer speaking over the telephone where it is not reasonably practicable for the inspector to be present, but if, as I fear, it simply becomes routine practice for the matter to be dealt with over the telephone by an unknown police officer who has little grasp of the issues in the case, or of the background, I am worried that the proposal will be a facilitator to people being detained for too long and without good reason. The next group of amendments, which relate to legal advice, may deal with that problem; I am not certain how it will marry with the present section 40A, which is not in force, but I shall return to that matter in a moment.

I am worried about the proposal because, on the whole, the person taking the decision should be able to form an independent judgment and it is vastly

preferable that it should be the inspector at the police station rather than on the telephone. I am happy for that facility to be provided when an inspector is not available, which section 40A of the Criminal Justice and Police Act 2001 sets out to do, but I am concerned about the bald terms in which it is being put into clause 4.

Does the hon. Gentleman share my view that there is a link between the officer's seniority and his ability to be present? Does he have a view on whether, if lower-rank officers regularly do the job, there should be some justification other than the simple argument that more people could do the job because there are more superintendents than there are inspectors?

I agree with the hon. Gentleman. We may be in danger of taking an unnecessary short cut that sends out a bad signal about the issue. In the next group of amendments I shall reflect on the Minister's response to another of my amendments, which may or may not be necessary, because it depends on what is currently in force. In the meantime, I am not persuaded that this measure is better than what is proposed in section 40A of the CJPA 2001, which appears to meet all the hon. Member for Nottingham, North's requirements without the mischief that might flow from it.

I shall make one last effort to persuade the hon. Gentleman that the proposal is more reasonable than that. Is not it a good argument for greater flexibility if it allows the inspector to spend more time on patrol with his or her officers because he is freed from the requirement to pace up and down police station corridors carrying out the reviews in person?

I disagree with the hon. Gentleman that that is what will happen. If, under the section 40A introduced by the CJPA 2001, the officer is out on patrol, it must follow that it is not reasonably practicable for him to be at the police station. Therefore, I do not see the problem. However, I do see that the careful wording of section 40A of the C JPA has been short-circuited and I am not persuaded that that is an advantage.

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

I beg to move amendment No.13, in

clause 4, page 4, line 21, at end insert

'and the person arrested shall have the right to the presence during the review of his legal representative and shall be advised of that right'.

With this we may take amendment No.77, in

clause 4, page 4, line 26, at end add—

'(3) It shall be the duty of the police to carry out by discussion by telephone or using videoconferencing facilities, if this is practicable, on the request of the person under detention, or any solicitor representing him, or, in the case of a person under 18, the appropriate adult who is accompanying him.'.

The amendment raises the next question: in the circumstances of the clause, will the person arrested have the right to the presence during a review of his legal representative, and will he be advised of that right? Clause 4 as drafted amends section 40A(1) and (2) of the 1984 Act and mentions

''use of telephone for review under s.40''.

If I understand the Minister correctly, the provision that we want to amend is currently not in force. That is why I was confused: I naturally assumed that it was in force. Perhaps the ''Archbold'' in front of me is wrong, but in my copy, section 40A is the provision introduced by the CJPA. We must clarify the position before we can continue. I fail to understand how we can amend a section of PACE that is not in force.

Furthermore, section 40A, as intended, provides an opportunity to make representations, which is ideal, but it does not appear in the clause. One possibility—perhaps the answer to the problem—is that the Minister intends to marry clause 4 with parts of section 40A, including parts of section 40A(3).

Yes.

This is just about the worst piece of drafting that I have ever encountered. We are debating a clause that is not yet in force and it is being partially amended by the Minister for implementation. It is a complete drafting nightmare and we must try to do better. It is most unsatisfactory. If he is about to reassure us on a right to representation, it removes part of my concern without removing my general anxiety about the clause.

First, for the avoidance of doubt, inspectors currently review and will continue to review under the new arrangements. Any suggestion of a downgrading is incorrect. I am advised that it is perfectly in order to amend legislation that already been passed but not yet brought into force. [Interruption.] It is perfectly in order.

Ludicrous.

No, it is not ludicrous. As the hon. Gentleman read through section 40A(1), as passed by Parliament, but not yet in force, he realised that clause 4 would amend sections 40A(1) and 40A(2), leaving sections 40A(3), which is about legal representation, and 40A(4) intact. All the rights of representation and access that currently apply to reviews undertaken in person will in future apply to reviews undertaken by telephone. I hope that that satisfies the Committee on that point.

The Minister is right to say that it is possible, legal and legitimate to amend provisions that may not have been implemented. If the Home Secretary's wishes are to be followed—that we consolidate the criminal law and make the penal code easier to understand—this is not the best way to go about it. Seriously, attempting to keep up with the law is difficult. It is moderately difficult for those such as police officers, MPs and Ministers who are paid to do it, but for citizens who are not paid, but want to know their rights, it is impossible. The provisions do

not serve the interest of making the law clearer for people to understand.

The Home Office, the worst offender, should have some self-denying ordinances affirming that once something is on the statute book, it should be given a chance to be implemented. Eventually, it can be reviewed by the Home Affairs Committee or the Joint Committee on Human Rights, and updated if necessary. No wonder Bills are so long when we amend laws, some of which have not even been implemented. Last year, during consideration of the Nationality, Immigration and Asylum Bill, we got rid of a proposal that the Government had not even introduced, having paved the way for it as their best suggestion only a couple of years before. That does not set a good example.

I shall not press amendment No. 77 to the vote.

It is an extraordinary state of affairs. We try to do our best to move business quickly through the Committee. Amending legislation passed only last year strikes me as profoundly unsatisfactory. However, I will withdraw the amendment, because I have now made up my mind about the proper approach to the proposals. If we can move rapidly to clause stand part, it may not have to be debated. I intend to vote against the clause.

Does the hon. Gentleman wish to withdraw the amendment.

Yes, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

My hon. Friend the Member for Somerton and Frome and I will also vote against the clause, for a medley of reasons: it amends something that has not been established; it raises issues that relate to another important civil liberty—the right of the state, or police officers in executing the law, to detain a person; as a protest against this way of making law; and the need for people to be assured that there is a proper review system.

I completely accept the idea that we have a 24-hour detention power, although I shall resist any attempt to extend it, as we will debate shortly. I believe that that power should be reviewed regularly. I am not against the idea that there should be occasional reviews from a distance. I am modern enough to believe that it is possible in many circumstances to carry out such a review by video-conferencing, where it exists. I have specifically lobbied Home Office Ministers for the quickest and most available extension of video-recording facilities for all police stations. A year or so ago at a Northern Ireland debate, we learned that such facilities are more advanced there, and that all interviews are taped and can be recorded on video. The Minister said that it was the intention for that to happen also throughout England and Wales.

Before the end of the sitting, the Minister may be able to explain the safeguards that will be put in place, especially those that meet the Youth Justice Board's

concerns about young people and provide satisfactory protection of their interests. It has made representation, which colleagues have seen.

In conclusion, I want to correct something that I said earlier. The Conservative Whip on the Committee pointed out that I transposed inspectors and superintendents, for which I apologise. There are clearly more inspectors than superintendents, as they are a grade lower. However, the point is made: we need to know at what level it is appropriate for such checking to be done. The Youth Justice Board must be satisfied that the interests of those that it seeks to provide for are adequately safeguarded.

As a Conservative, I am obliged to address clause 4 with some trepidation, as I understand from the history of the Labour party that that clause number has a certain resonance.

The point must be made that what the Minister is doing is technically in order, but that does not necessarily mean that it is best practice, which follows on from the point made by my hon. Friend the Member for Beaconsfield. I offer the Minister a maxim from the military world, in which I once served. Non-commissioned officers talk about order, counter-order and disorder. That is a wise maxim for him to remember, because if the Home Office constantly wants to be a serial legislator, and is so often going to change something that it enacted only recently by passing yet another Act of Parliament on top of it, it is in danger of creating great confusion, both in the police service and among the wider public.

I say this now merely to put down a marker, because I suspect that this will not be the first time that we come across the problem as we go through the Bill. Ministers should be careful as they ram more and more Home Office legislation down Parliament's throat. They should think out more carefully what they are legislating for in the first instance, to avoid the problem arising again.

The hon. Member for Southwark, North and Bermondsey made a fair point about juveniles. The issues that arise in the circumstances that he described will need to be covered in guidance.

I hear what is said about amending legislation that has only just been passed, but in all sincerity I do not agree. If, on reflection and following reviews and the garnering of experience, the view is reached that a change is sensible, the fact that the previous change was made only recently should not be a bar. There may be wider arguments about the burden of legislation that emanates from the Home Office, but today is not the day to have them.

In relation to the change that we are discussing, the Committee is divided among those who object to the change in principle, those who are sympathetic to it and those who combine to say that, notwithstanding their respective views, they do not like a change being made so quickly after the previous one. I think that it is a sensible change, which is why I hope that the Committee will vote for the clause.

Question put, That the clause stand part of the Bill:—

The Committee divided: Ayes 13, Noes 7.

NOES

Clause 4 ordered to stand part of the Bill.

Further consideration adjourned.—[Mr. Heppell.]

Adjourned accordingly at seven minutes past Seven o'clock till Thursday 19 December at ten minutes past Nine o'clock.