West Midlands Combined Authority (Transfer of Police and Crime Commissioner Functions) Order 2024

Wednesday 13th March 2024

(4 months, 1 week ago)

Lords Chamber
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Motion to Approve
19:45
Moved by
Lord Sharpe of Epsom Portrait Lord Sharpe of Epsom
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That the draft Order laid before the House on 7 February be approved.

Special attention drawn to the instrument by the Secondary Legislation Scrutiny Committee, 15th Report, 17th Report from the Secondary Legislation Scrutiny Committee.

Lord Sharpe of Epsom Portrait The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom) (Con)
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My Lords, if approved by both Houses, this order will transfer police and crime commissioner—PCC—functions from the West Midlands PCC to the Mayor of the West Midlands. The first mayor to exercise PCC functions in the West Midlands would do so following the next mayoral election, which is scheduled for Thursday 2 May 2024. This maintains the direct democratic accountability for policing and crime in the West Midlands, as the mayor will be elected by the people of the West Midlands on the basis that they are to exercise the functions of the PCC for that area.

The incumbent PCC for the West Midlands will continue to exercise the functions until the end of his elected term of office. The person elected as mayor, from the point of taking office on Tuesday 7 May following the mayoral election, will act as the single, directly elected individual responsible for holding the chief constable and police force to account. The mayor will be accountable to the people of the West Midlands for this responsibility. Their functions would include issuing a police and crime plan; setting the police budget, including the PCC council tax precept requirements; appointing and, if necessary, suspending or dismissing the chief constable; addressing complaints about policing services; providing and commissioning services for victims and vulnerable people; and working in partnership to ensure that the local criminal justice system is efficient and effective.

Part 1 of the Government’s review into the role of PCCs cemented government’s view that bringing public safety functions together under the leadership of a combined authority mayor has the potential to offer wider levers and a more joined-up approach to preventing crime. The Government’s levelling up White Paper, published on 2 February 2022, sets out our aspiration to have combined authority mayors take on the PCC role where feasible. By working in partnership across a range of agencies at local and national level, mayors can ensure that there is a more holistic, unified approach to public safety.

As is required by Section 113 of the Local Democracy, Economic Development and Construction Act 2009, the Home Secretary launched a public consultation on the proposed West Midlands police and crime commissioner functions transfer on 20 December 2023, which ran for six weeks to 31 January. Over 7,000 responses were received to this consultation, and the Home Secretary considered the views gathered when deciding whether to lay this order enabling the transfer of PCC functions to the Mayor of the West Midlands.

It is the Government’s view that incorporating PCC functions into the role of the Mayor of the West Midlands, who is elected to deliver across a range of other functions, will bolster their mandate to bring greater joined-up access across the responsibilities they are accountable for and will help to facilitate a whole-system approach to crime reduction.

Lord Grocott Portrait Lord Grocott (Lab)
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While the Minister is on the consultation, could he conclude it by telling us the number of consultees and the responses that they gave, and can he give us some numerical attachment to that so that we get some idea of how the consultation went?

Lord Sharpe of Epsom Portrait Lord Sharpe of Epsom (Con)
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I can and will do so shortly.

Incorporating the PCC functions into the role of the Mayor of the West Midlands preserves the democratic accountability that underpins the PCC model and at the same time reduces the risk of competing democratic mandates within the West Midlands Combined Authority area, providing greater clarity for the electorate on who is responsible for public service functions in their area.

The exercise of PCC functions by the Mayor of the West Midlands is a significant step to realising our ambition for more combined authority mayors to take on PCC functions, as is already the case in Greater Manchester and West Yorkshire. It will mean that people in the West Midlands will be served by a mayor who will have a range of functions and levers comparable to those of the mayors of Greater Manchester, West Yorkshire and London, and they will be able to hold their mayor to account for this enhanced range of responsibilities.

The Government have also laid a similar order which, if approved by both Houses, would see PCC functions exercised by the Mayor of South Yorkshire, following the rescheduled mayoral election in May.

I turn briefly to the amendment tabled by the noble Lord, Lord Bach. The noble Lord states that the transfer of functions is taking place without the consent of the other relevant local authorities. When PCC functions are transferred to be exercised by an existing combined authority mayor, Section 107F of the Local Democracy, Economic Development and Construction Act 2009 requires the consent of that mayor to enable the making of the order. The Mayor of the West Midlands provided his formal consent to the Home Secretary on 7 February. The consent of any other local leader is not required by statute. This reflects the fact that it is the mayor themselves and not the combined authority or the leaders of the constituent authorities who will exercise the PCC functions, as it is a central tenet of the PCC model that only the individual elected to exercise the PCC functions may do so, whether that individual is a PCC or a mayor.

The noble Lord also states that the functions are being transferred without the consent of the people of the West Midlands through a vote, but the incumbent Mayor of the West Midlands was elected to office by the people of the West Midlands in May 2021. Arguably, this means that the mayor has a clear democratic mandate in the region, and, as indicated, he has consented to this order. Should the House pass this order, it will then be directly in the control of the people of the West Midlands to elect the individual they wish to see exercise the functions of the PCC at the May election. The Government are doing nothing to take that ability away from the electorate with this order; we are simply transferring the exercise of policing governance functions from one directly elected role to another.

Finally, the noble Lord has highlighted the Secondary Legislation Scrutiny Committee’s report on this order, and specifically its finding that an initial decision was made by the Home Secretary to transfer the functions before a public consultation had been conducted. It is true that the Home Secretary communicated an initial decision to the mayor and the PCC for the West Midlands on 6 December. The Permanent Secretary’s response to the committee’s letter has addressed this concern, but for the benefit of the noble Lord and the House, I will also address it.

At the time of the Home Secretary’s decision, the requirement of Section 113 of the 2009 Act to conduct a public consultation was not known to him. It had not been the Government’s intention for the levelling-up Act to place a new statutory test and a consultation requirement on the power to transfer PCC functions to combined authority mayors. However, as soon as the Home Secretary was made aware of this requirement, he launched the six-week public consultation on the proposed transfer and agreed to retake his decision only after he had given due regard to the responses to the public consultation and he was satisfied that the statutory requirements of Section 113 had been met. The decision to make this order was taken on 6 February and supersedes the decision that was communicated on 6 December.

If noble Lords will bear with me a second, I will try to find the relevant statistics, as asked for by the noble Lord, Lord Grocott. I know I have them in my winding-up notes—I will find them in a second.

It is unfortunate that the initial decision was made without knowledge of the statutory requirements, but the appropriate steps were taken to ensure that the decision to make this order was not made until the requirements had been met. I am satisfied that the Home Secretary acted well within the legislation as soon as he became aware of this initial oversight. I call on Members of your Lordships’ House to reject the amendment tabled by the noble Lord. I hope that what I have said provides some reassurance and clarity.

I thank the House for its indulgence; I have found the numbers, with thanks to the noble Lord, Lord Gascoigne. The public consultation ran from 20 December 2023 to 31 January 2024. The Government’s response to the consultation was published when this order was laid before Parliament. The total number of responses received was 7,103—a good deal more than those received by other consultations relating to devolution proposals. Of those responses, 46% agreed with the proposal, 50% disagreed and 4% said that they did not know. I beg to move.

Amendment to the Motion

Moved by
Lord Bach Portrait Lord Bach
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At end to insert “but this House regrets that the draft Order entails the transfer of power being completed without the consent of other relevant local authorities; and notes that the Secondary Legislation Scrutiny Committee concluded that the public consultation required by law was not commenced before an initial decision was made.”

Lord Bach Portrait Lord Bach (Lab)
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My Lords, in short, my amendment is based on two separate but interlocked criticisms of the Government and their conduct. First, I argue that the Government, in their desire to see the current Mayor of the West Midlands add the role of police and crime commissioner to his already extensive portfolio, have deliberately subverted the principle that they themselves put into earlier legislation: that there should be real democratic support before such a fundamental change. In other words, proper consent for such a course was considered essential before such a transfer of power could take place. That has not happened here, as a deliberate part of the Government’s strategy.

Secondly—and here the Home Office is the main culprit—the timing of and background to this statutory instrument have been rightly criticised by the Secondary Legislation Scrutiny Committee. In an extremely critical report, the committee points out what can only be described as incompetence by the department. The headline of a release put out by the committee to accompany its 15th report put it like this: “Elections potentially undermined by poor process, says Lords Committee”. The release said that:

“The Committee expressed concern that both Orders have been laid before Parliament close to the intended date of the next election (2 May 2024), less than the minimum six months in advance that is regarded as good practice”.


These two points combined will, I hope, persuade the House to say that this behaviour all round should be deprecated.

I will give a little more detail. In exactly 50 days, on 2 May, there will definitely be an election for the Mayor of the West Midlands. The present incumbent is a Conservative. On the same day, and with the same electorate, covering exactly the same area of Britain, there may be an election for the stand-alone role of the police and crime commissioner for the West Midlands. The present police and crime commissioner, elected some years ago, is Labour.

I put it like that because, yesterday, the Administrative Court heard a judicial review brought by the police and crime commissioner for the West Midlands against the Home Office. At the end of the day, the judge reserved judgment until 18 or 20 March. I am not going to say any more about that court case, which has nothing to do with us—we are Parliament, and it is the judge who will make up his mind—but that is why the matter is not resolved legally yet, and I am here to argue that what has happened in the past means that we should regret this statutory instrument.

The mayoral election will be on 2 May but the election period, as far as electoral administrators are concerned, runs not from 2 May but from 21 March—literally eight days’ time. I am advised that electoral administrators in the West Midlands just do not know where they stand, and one can imagine their frustration.

It is obviously beyond argument that all this arises from a deal cooked up some time ago between the Government and the mayor. The mayor wants to be the police and crime commissioner and the Government want it too. Up until the Levelling-up and Regeneration Act, he could have had that role if the local authorities that make up the combined authority, and the other local authorities in the West Midlands region, had given their consent. That is what happened in Greater Manchester and West Yorkshire, and that is what is going to happen in South Yorkshire. In these areas the combined authorities were in favour, as in fact were the police and crime commissioners, but that was not so in the West Midlands. The combined local authorities, on every occasion that they have been asked, have been opposed. So the mayor gets the Government to change the law, in a very short clause in a very large Bill—now Section 62 of the levelling-up Act.

20:00
Forget the general, region-wide consent that was part of the devolution deal when the West Midlands came under the auspices of a mayor; part of that deal was that there should be broad democratic support. Now all that is required is the consent of the mayor—yes, really, the only person who has to consent is the person who wants the job. That is not consent in any real sense; it is the precise opposite—it is Newspeak language. It is not that broad democratic support that the Government once believed in—it is very nice work if you can get it. Many politicians, of the sort that we soundly and gravely criticise in this House, day in and day out, from other countries, would stand up and applaud this achievement; it is what happens in countries where democracy counts for little: it should not be happening here.
As the noble Lord, Lord Kerr of Kinlochard— I am very glad to see him in his place—said on 23 October, when I do not think he was fair on himself:
“I know very little about the politics and governance practices of the West Midlands, but when I lived in America I was privileged to watch at close hand the governance practices of the Deep South and of Mayor Willie Brown’s San Francisco and Mayor Daley’s Chicago. As I listened in both the previous debate and this afternoon to the noble Lord, Lord Bach, explaining what looks to me like a rather unusual practice developing in the West Midlands, I was strongly reminded of the practices of state governments in the Deep South of the United States. I do not think that is a road we should go down”.—[Official Report, 23/10/23; cols. 416-17.]
Why has it taken so long to bring this statutory instrument before Parliament? After all, as the Government Minister said during ping-pong on 23 October:
“Commencement at Royal Assent enables the Government to adhere as closely as they can to the Gould principle of electoral management, whereby any changes to elections should aim to be made with at least six months’ notice”.—[Official Report, 23/10/23; col. 418.]
This section of the new Act came into being immediately on Royal Assent, and the Home Secretary agreed to the mayor’s proposals and publicly said that the statutory instrument would be provided very soon. However, that statutory instrument never emerged: why? Simply because the Government failed to read its own Act of Parliament, which received Royal Assent less than six weeks after it had been passed. They had not noticed that there was a section that made it clear there needed to be a consultation before Section 62 could be implemented. Thus, the Home Secretary’s decision was invalid and had to be scrapped.
That was an extraordinary mistake, particularly for a statutory instrument that was already tight up against the date of the election. Only this morning, our scrutiny committee in this House published an additional short report, following an exchange of letters with Home Office officials and Ministers, and it repeated its description of what had taken place as “extraordinary”. Consultation was rustled up at short notice to last between 20 December and 31 of January—just think of those dates. It started almost as our Christmas holiday began and went right through the New Year break, so it was not surprising—here I disagree with the Minister—that the response was hardly heavy. To add insult to injury, as has been found out this evening, the result was against this change, although of course I do not make too much of that point.
Predictably, the Home Secretary gave permission again for the transfer of power. This statutory instrument followed, and the Government are up against this very tight timetable that is entirely of their own making. Those who have read the scrutiny committee’s report will know there were other issues that concerned it, but the most concerning is that the Act of Parliament was not properly read by the Government, and thus this situation arises.
I agree and argue that the House should regret this statutory instrument on two grounds. I believe the throwing out of democratic norms in order to give your mate a job that he wants is the most grievous ground for the regret amendment. We should regret this statutory instrument both for the liberties it is taking with our democratic arrangements and for the mismanagement that means no one in the West Midlands knows, just 50 days before the election, how many elections there will be and who the candidates are. The House should surely say, “This is just not good enough”. I beg to move.
Lord Shipley Portrait Lord Shipley (LD)
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My Lords, I thank the noble Lord, Lord Bach, for his devastating critique of this draft order. I have spoken many times in this Chamber on the need for combined authorities to have the consent of the public for what they do and for the decisions that they make. This includes appropriate and effective consultation and proper management of scrutiny, audit and risk of those combined authorities. As the noble Lord, Lord Bach, said, this draft order entails the transfer of power being completed without the consent of the other relevant local authorities and notes that the Secondary Legislation Scrutiny Committee concluded that the public consultation required by law was not commenced before an initial decision was made.

As the noble Lord, Lord Bach, drew our attention to, in the 17th report of the Secondary Legislation Scrutiny Committee, it is very clear that the Government have not understood the implications of their own legislation in the levelling-up Act. Secondly, it is very surprising that, when the consultation was done, the changes were opposed by a majority of residents expressing a view in public consultations and by other prominent figures in the West Midlands. This is simply unacceptable behaviour and, if the noble Lord decides to press his amendment to a vote, this side will support him.

Baroness Butler-Sloss Portrait Baroness Butler-Sloss (CB)
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My Lords, I come entirely fresh to this issue, but I would like to ask the Minister: what on earth is the point of a consultation if the majority says one way and the Government take no notice?

Lord Hunt of Kings Heath Portrait Lord Hunt of Kings Heath (Lab)
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My Lords, the noble and learned Baroness has put an important question to the Minister, and I thank my noble friend Lord Bach for fighting on with this case with such determination for over a year.

I want to make three points. First, the original legislation required that the consent of the local authorities within the combined authority was given for such a move to be made. Mr Street made a number of efforts to persuade the local authorities in the West Midlands to give their consent, but they did not do so. The Government then came along and said, “Oh, we’ll just change the law then”, and determined that if Mr Street wants to do it then they would let him do it.

Of course, the Government have form. At the same time, they also connived with Mr Street to try adding Warwickshire into the boundaries of the West Midlands Combined Authority for the election coming up on 2 May. Mr Street, knowing that he is staring defeat in the face, was desperate to increase the electorate from the shire county. Fortunately, and understandably, opposition within Warwickshire meant that this had to be withdrawn.

But Mr Street is determined to get something out of the wreckage of those proposals. If the Government have their way, he will be the police and crime commissioner. No evidence whatsoever has been given, apart from the holistic approach that the Minister talked about, to support why the police and crime commissioner role should be abolished in the West Midlands—no metrics, no data, no evidence base.

The irony is that the Minister talked about us having greater accountability. That is absolute nonsense. We all know what happens. When a mayor becomes a police and crime commissioner, they appoint a deputy to oversee the policing. The deputy deals with 99% of the policing issues and is accountable only to one person —the mayor—not to the people of the West Midlands. This is what is happening here.

I pay great tribute to the scrutiny committee, chaired by the noble Lord, Lord Hunt of Wirral, for its assiduous work in this area. The committee has given the Government and the Minister’s department one of the most excoriating criticisms that I have seen for how this has been handled. The Government did not even know the implications of their own legislation that they passed only a short time ago, yet the excuse from the Home Office Permanent Secretary—talk about a collective corporate government response—was to blame the local government department. It is extraordinary behaviour, including executive arrogance and executive incompetence. I hope that noble Lords will thoroughly support the amendment moved by my noble friend Lord Bach.

Lord Scriven Portrait Lord Scriven (LD)
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My Lords, the arguments about local democracy being completely ignored have been very professionally made by previous speakers. I follow the noble and learned Baroness, Lady Butler-Sloss, in her assessment. What is the point of consultation if the Government ignore it?

The Government’s argument, in their response to the local consultation, was that

“mayors who exercise PCC functions have wider levers”

to join up delivery in tackling crime and securing public safety. If that were the case, West Yorkshire and Greater Manchester would have lower levels of crime than the West Midlands and those areas without combined mayors and PCCs, but if you look at the figures, it is exactly the opposite. Last year, the average crime rate per 1,000 population in England and Wales was 93.6 crimes per 1,000 population; Greater Manchester’s was 129.7 per 1,000 population, and West Yorkshire’s was even higher at 138.8; the West Midlands was below both of them. Therefore, the Government’s response, that having these roles combined makes places safer with less crime, is shot by the Government’s own statistics. What metrics are the Government using to say that these combined roles create less crime and make people safer?

Baroness Jones of Moulsecoomb Portrait Baroness Jones of Moulsecoomb (GP)
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My Lords, I support the noble Lord, Lord Bach, despite not liking regret amendments, which are a legislative equivalent of saying “tut-tut”. What is the point? I also do not like the police and crime commissioner system. It is not as well overseen as the previous system of local police committees and was yet another government mistake. However, I will vote for the regret amendment.

The Green Party was opposed to police and crime commissioners because we feel that police forces should be supervised and accountable to elected local government. It is more immediate and more responsive with councillors.

However, it could be said of most police and crime commissioners at the moment that, although it is an elected position, as far as politics is concerned, they are semi-skimmed—they are rather thin milk. They are independent—often former police officers, even a priest—and they have used their expertise to serve their communities. Transferring those powers to an elected mayor, especially over such a large, combined pair of authorities will turn these functions into the hands of one single full-fat politician. That is simply too much power in one pair of hands. The move towards directly elected mayors and these mega-authorities is already combining too many powers into one executive who is subject to very little scrutiny. That is one of the really big problems with this.

20:15
As the noble Lord, Lord Hunt, mentioned, there will be a diluted focus on the police and what they get up to because we will almost certainly have a deputy mayor who has no public mandate at all and might not have the relevant skills. The policy is rubbish, the process is even worse and the timing is—I nearly swore —pretty rubbish as well. The Government are rushing through legislation.
This should force your Lordships’ House to think about our role. What other things might this Government force through? If your Lordships’ House and, in particular, the Official Opposition, decide not to stop any legislation from the Government, at what point could we say that while we might be unelected we are the only people left who can actually defend democracy?
Lord Snape Portrait Lord Snape (Lab)
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My Lords, as a resident of Birmingham, a few weeks ago a publication called the Birmingham Champion came through my front door. My noble friend Lord Bach referred to the Mayor of the West Midlands as a Conservative. He and I know that he is a Conservative because we take an interest in these matters. The Birmingham Champion is all about the mayor. The one word that is missing from it is “Conservative”, except for one mention—I must be frank about this. With my best spectacles on and under a bright light, I find that the printer’s imprint says, “On behalf of the West Midlands Conservative Association”, but there is no other mention of the Conservative Party. There are no less than seven pictures of the mayor and six stories where he claims the credit for saving the European championship, a training revolution with 100,000 new jobs, bus passenger numbers rising and routes protected. I used to be chairman of the bus company. I had not realised that the mayor had so much power.

Lord Gascoigne Portrait Lord Gascoigne (Con)
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I hate to have to do this, but I ask the noble Lord to pay attention to what is in the Companion about the use of props when giving speeches. It is not advised. With respect, can he please give his speech—

None Portrait Noble Lords
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Oh!

Lord Gascoigne Portrait Lord Gascoigne (Con)
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Order. I am quoting what is in the Companion.

Lord Snape Portrait Lord Snape (Lab)
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I need no lectures from the party opposite about propriety. I have been in this Chamber for a lot longer than the noble Lord. Can he sit down and hear me?

Lord Gascoigne Portrait Lord Gascoigne (Con)
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With respect, order. I am not giving a lecture from the Conservative Party Benches but about what is in this book—which is not written by the Conservative Party. Please, bear with me. In chapter 4 of the Companion, which is not written by any political party, paragraph 4.19 says:

“Members should not bring into the Chamber … books and newspapers”.


I do not mind the noble Lord making his points but, with respect, please do not do this.

Lord Snape Portrait Lord Snape (Lab)
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The noble Lord has wasted quite a few minutes telling me that. It is not a newspaper; it is a publication on behalf of the Conservative Party, but I will cite it from memory: seven different pictures of the mayor and six stories for which he claims credit —over which the mayor has little power, but that has not stopped him. Now he wants to take on the police and crime commissioner’s role. I ask noble Lords how he can fit that role in given all his other duties.

I remind the party opposite, particularly the Minister, that the Labour police and crime commissioner was elected in a democratic election in 2021. The proposals from the Government to merge the two jobs are typical of their attitude towards democracy. When it comes to national elections, the Government insist, with no evidence to back it up, that identification must be provided. When it comes to elections in this city, they change the system. They cannot win in a PR system, so they insist on first past the post. This, in the West Midlands, is just another example of their cavalier behaviour regarding democracy.

I repeat that I do not believe that the mayor and the crime commissioner are roles that should be combined. The mayor insists that the West Midlands Police being in special measures is somehow the fault of the police and crime commissioner. Both sides of this House know full well that the police and crime commissioner has no operational control over the police force. That the police force is in special measures is in no way related to the capabilities of the police and crime commissioner anyway.

What worries me about this power grab on behalf of the Conservative Party is where we will go as far as the West Midlands is concerned if the jobs are combined and the police and crime commissioner finds that he does not have the time or space to do the mayoral role as well. Obviously, given that the Government have already overthrown—or intend to overthrow—the result of an election, the answer is not very far.

I have a vision of the future so far as the West Midlands is concerned. I do not know whether the West Midlands Police band is still in existence, but given the propensity for publicity of the outgoing mayor, I can imagine that band, if it exists, marching down Broad Street in Birmingham, led by the mayor and police and crime commissioner in his best uniform banging a big drum to a patriotic tune—“Lillibullero” perhaps—and blowing his own trumpet in the way that only he can.

This is a power grab; it ought to be resisted, and I will be supporting my noble friend’s amendment. I am grateful for the reference to the Companion from the noble Lord opposite. When he has been here a few more years, he might know better.

Lord Kerr of Kinlochard Portrait Lord Kerr of Kinlochard (CB)
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My Lords, I was alerted to this strange case by the noble Lord, Lord Bach, when he raised it in our debates in October. I still know very little about it that I have not learned from his speeches, and from the excellent report by the Secondary Legislation Scrutiny Committee under the noble Lord, Lord Hunt of Wirral. It is a very strange story and I worry that I am beginning to think I am getting cynical in my old age.

The Home Office tells us that the purpose of the exercise is to create a joined-up approach. I do not think this is about joining up; it is about stitching up. It seems to me that the purpose of the exercise is to connive at the hostile takeover that the mayor wants to conduct. I am not sure that we should be conniving.

There is another issue as well, which is the role of the Home Office. Thanks to the Secondary Legislation Scrutiny Committee’s pursuit of the matter, we have a marvellous “Sir Humphrey” letter from the Permanent Secretary in the Home Office—this is an area in which I do have expertise. It is a wonderful letter that reveals that in the Home Office—how should they know?—they were completely unaware of the requirement for a consultation. They were totally in the dark, because those rotters down the road at the levelling up department failed to tell them—shocking. Did they not read the speech given by the noble Lord, Lord Bach, on 23 October? We voted on the matter, and he spoke particularly on this case—this was the case he drew to our attention. Do they not read Hansard in the Home Office?

I think this consultation was a sham. I think that the Home Secretary did not care what it revealed, because as soon as he got the answer and the answer was, on the whole, “No, we’d rather not—forget it”, he immediately proceeded to approve the hostile take- over. He just picked up his decision from December and, within days of receiving the outcome of the consultation, he said, “Well, I don’t really care what you think; we’re going to go ahead and do this”. He was conniving at a stitch-up; I do not think that we should connive at a stitch-up, so I shall support the noble Lord’s amendment.

Lord Sahota Portrait Lord Sahota (Lab)
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My Lords, most of my points have been made, but I will make just one or two. First, when a PCC election happened in 2021, the PCC said clearly in his manifesto that there should be a free-standing PCC and that the PCC should not be taken over by the mayor. He supported that position, but his opponent said that he disagreed and that the role should be taken over by the mayor. He made it quite clear during the last election that this is what he supported.

My second point—most of it has been made—is that, during the public consultation last January, the present PCC asked the mayor for a public debate on this issue, but the mayor chickened out. He would not come out and debate with the present PCC on it.

Thirdly, this decision by the Home Secretary is contrary to the good principle of the Electoral Commission that before any changes to the election system there should be at least six months’ notice—that is not there. Those are my points, and I will support the amendment put forward by the noble Lord, Lord Bach.

Lord Lexden Portrait Lord Lexden (Con)
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My Lords, I came slightly late to the debate—for which I apologise—and, because of that, I shall be extremely brief. I have listened to all that has been said. I have looked very carefully at the excellent report by our all-party Select Committee with the noble Lord, Lord Hunt of Wirral, in the chair, and I find it quite impossible to suppress feelings of deep disquiet and concern about the way the Home Office has conducted itself in this matter.

Baroness Pinnock Portrait Baroness Pinnock (LD)
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My Lords, I am very pleased that the noble Lord, Lord Bach, has again brought the attention of this House to this difficult issue.

I want to emphasise just three points. First, in this country, we have a noble approach to policing, which is policing by consent. It seems to me that policing by consent should also include policing by consent of our elected local representatives. In this case, that is clearly not there. All the constituent authorities agreed to oppose this merger—this amalgamation—of the two roles.

My second point is about local accountability. We know that the police service in the West Midlands spends a great deal of local public money, and there ought to be local accountability. I live in West Yorkshire, so I know how this will operate. The elected Mayor of West Yorkshire has also taken over the role of the police and crime commissioner and has appointed an unelected person to fulfil the role of what was formerly an elected police and crime commissioner, at a considerable salary.

The only way that local people can call to account the policing of their area is through the police and crime panel, which, as the Minister read out, has some quite limited powers to do so, including looking at the policing plan, which is drawn together by the police and crime commissioner or the mayor and the chief constable, and checking whether they are fulfilling it. That is inadequate, when those people are seeking to reduce crime and safeguard the lives of local people. Policing by consent has failed in this instance and accountability is totally inadequate.

20:30
My third point is about process. I am not a great one for process and I admire people who follow it closely. This report from the Secondary Legislation Scrutiny Committee is the most excoriating report that I can remember reading. At every stage of this process, the committee has condemned what happened in the politest way that it can, but we can read between the lines. We know it is saying that it is inadequate that due process has failed. If we are to have a Government on whom we can rely to follow the rules, they have failed. If they have failed and have been found out, which they have, they need to put their hands up, say they are sorry and that they failed, and withdraw this decision to amalgamate the PCC with the elected Mayor of the West Midlands.
All of us on these Benches will support the noble Lord, Lord Bach, if he wishes to test the opinion of the House on this matter, but I urge the Government to listen carefully to what has been said on every side of the House about how this decision has been made and resolve to go back to the Home Office to say, “This will not do; we will have to think again”.
Lord Ponsonby of Shulbrede Portrait Lord Ponsonby of Shulbrede (Lab)
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My Lords, we on this side of the House consistently support directly elected mayors. We also support them having police and crime powers when boundaries make this appropriate. However, it is not a remarkable point to make that we also believe that, first, the Government should act within the rules set out for them and by them; secondly, that local leaders should be brought along with any proposed changes; and, thirdly, that due and democratic processes should be respected and that consultations should be entered into in good faith, with the intention of listening and reporting back to Parliament in a transparent manner.

It is right that the Government explain not only the initial oversight in terms of the statutory duty but the manner in which the consultation took place. I request that the Government outline how they plan to make this right with local leaders in the region to make it clear to everyone where they now stand, and what will happen to regain the confidence of the people of the West Midlands. Will the Minister commit to further consultation? More widely, and with more regulations to come, I ask the Minister to outline how he will ensure that this approach will not be repeated.

Proper devolution demands that the Government work with local communities and bring on widespread support to produce outcomes that are right for their areas. It also demands that government acts effectively across departments when issues cross Whitehall boundaries. How will the Government ensure that this is done in future?

Of course, we will support my noble friend. He gave a devastating speech when he introduced his amendment. I look forward to the Minister’s response.

Lord Sharpe of Epsom Portrait Lord Sharpe of Epsom (Con)
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My Lords, I thank all noble Lords for their contributions. I will do my best to address as many of the points that have been raised as possible.

It is worth recognising the support from the Government and the Opposition in the other place for the policy of enabling more directly elected mayors to exercise PCC functions, as the noble Lord, Lord Ponsonby, just noted. As I outlined in my opening remarks, the exercise of PCC functions by the Mayor of the West Midlands will be a significant step forward to realising the Government’s ambitions, as set out in the levelling up White Paper, for more combined authority mayors to take on PCC functions, as is already the case in Greater Manchester and West Yorkshire, and will be the case in York and North Yorkshire from this May. We have also introduced a draft order to achieve this outcome in South Yorkshire.

It is the Government’s view that bringing public safety functions under the leadership of a combined authority mayor, where it is possible to do so, has the potential to offer wider levers and a more joined-up approach to preventing crime. It places the PCC model and functions at the heart of a wider set of responsibilities for improving public services, exercised by an individual who will be directly answerable to the community that will elect them. It not only preserves the democratic accountability that underpins the PCC model but with an expanded role for the mayor comes a higher public profile, increased visibility and a greater ability to bring about local change.

The fundamental aim of the order is to incorporate the PCC model within the role of the mayor, maintaining the core principles of governance and accountability. The Government want to seize the opportunity to bring together in one elected role the responsibility for public safety and local regeneration for the people of the West Midlands.

In areas where there is a PCC and a mayor, both elected separately by the same constituency, it can confuse democratic mandates and create barriers to joined-up delivery across a range of public services for those communities. The statistics the noble Lord, Lord Scriven, cited do not take into account local circumstances and, therefore, comparisons have limited utility. None of this means that the West Midlands could not still be safer and have less crime under the new proposed system. Incorporating the PCC functions in the office of mayor creates an opportunity to clarify and enhance the mandate of that elected individual to make a greater impact across a range of public services.

As I set out in my introductory speech, the Home Office ran a public consultation on the proposal to transfer the PCC functions. The purpose of the consultation was to provide the Home Secretary with information to help his decision on whether to proceed with the legislation before us now. While the numbers for and against the transfer were taken into account by the Home Secretary, the most helpful aspect of the consultation, for the purposes of making the decision, was the information provided in the responses. The Home Secretary’s decision was informed, but not bound by, the responses to the consultation. In making his decision, the Home Secretary also had regard to information concerning the statutory tests and duties relevant to his decision. Ultimately, the Home Secretary is satisfied that the making of this order meets the statutory tests required of him. I say to the noble and learned Baroness, Lady Butler-Sloss, that this was not a referendum. He took note of all the information and made his decision; the information is not binding.

The Levelling-up and Regeneration Act 2023, specifically Section 62, has come up. That amended the consent requirements for the transfer of PCC functions to existing combined authority mayors and, instead of the previously required consent of the mayor, the constituent authorities and the combined authority, only the consent of the existing mayor is required to make an order enabling the transfer of the functions. This was decided by Parliament.

The Government have been clear that the PCC functions may transfer to a mayor only at the point of a mayoral election; this ensures that mayors are elected on the basis that they will be exercising PCC functions, maintaining the democratic principles of the PCC model. If this legislation is approved by both Houses, both the incumbent mayor and the PCC would complete their existing terms of office, and on 2 May the West Midlands electorate will select a mayor on the basis of them exercising PCC functions, providing them with a democratic mandate. The noble Lord, Lord Hunt of Kings Heath, asserted that Mr Street will be the PCC, and I sincerely hope the noble Lord is right, but he will have to make his case to the electorate and they will determine “who is mates with who”, to quote—I forget who.

It may already be known to this House—I think the noble Lord, Lord Bach, referred to it—that the judicial review launched by the West Midlands Police and Crime Commissioner on the public consultation and subsequent decision to transfer the PCC functions to the mayor was heard by the courts yesterday. Judgment will be reserved until next week, so I cannot prejudice those ongoing proceedings, but the Government strongly defended the claim made by the PCC. We are confident that the public consultation was robust and the Home Secretary’s decision to enable the transfer was lawful.

Regarding the extent to which this transfer upholds democracy, the Government have always been clear that PCC functions can transfer to a mayor only at the point of the mayoral elections, as I have just said. The way this order enables the transfer is no different; the first mayor to exercise the functions will not do so until the May 2024 elections have taken place and they have taken office—I believe on 7 May. The West Midlands electorate still has the ability to decide who they wish to see exercise these PCC functions. The Mayor of the West Midlands will be elected in May on the basis of exercising those.

A number of noble Lords raised concerns that a mayor may—I use the word “may” carefully—appoint a deputy mayor to support them in the exercise of the PCC functions. It was argued that this might be a dilution of the mandate and accountability of the role. At this point, I note that the current PCC has appointed two assistant PCCs. Mayors who exercise PCC functions can appoint a deputy mayor for policing and crime, but this is something that PCCs may also do, as I have just said. The ability to appoint a deputy does not shield mayors from scrutiny at the ballot box; the mayor will be held to account for the performance of a deputy they may appoint to support them. Also, not all PCC functions can be delegated to the deputy PCC; by statute, certain key strategic functions, such as the issuing of the police and crime plan, the appointment and suspension of a chief constable, and calculation of a budget requirement, may exercised only by the mayor themself.

All noble Lords noted the Secondary Legislation Scrutiny Committee report on this order, and the concerns raised in that report. I know the committee has written to the Policing Minister and the Permanent Secretary to express its concerns. I understand that both the Minister and Permanent Secretary have responded to those letters. The committee raised concerns about what it considered to be the “selective reporting” within the Explanatory Memorandum that accompanies this order, and I know that the Policing Minister has responded to address these concerns directly. But I would like to make it clear that the Explanatory Memorandum did not deliberately withhold information in any sort of attempt to selectively report the responses to the consultation and the views of stakeholders. As is best practice, the documents clearly outline the views raised as part of the consultation process, both in support of the transfer and those that raised concerns. The document also signposts readers to the Government’s response to the consultation, which has been published on GOV.UK. It goes into further detail on the concerns raised by respondents to the consultation and the Government’s response to those concerns.

As regards to the timing of the order, raised by the noble Lords, Lord Bach and Lord Sahota, I would like to address those points, particularly in relation to the Gould principle of electoral management, as referred to by the noble Lord, Lord Sahota. Where possible, government aims to ensure that any legislative changes to elections are introduced at least six months in advance of those elections, to give all those involved appropriate notice. In the case of the West Midlands, government was not able to lay the order six months in advance of the May 2024 elections. Every step has been taken to lay as early as possible, and I know officials have been closely engaged with partners in the West Midlands Combined Authority and the office of the PCC throughout the process, to keep them informed as much as possible. I hope noble Lords will support the order, so we can get one step closer to providing clarity to the local area, and enable it to deliver orderly elections in May. As the noble Lord, Lord Bach, noted, as long as that is done by 21 March, all is in order.

A question has been raised about why the Home Secretary took the original decision to proceed with the transfer before the statutory requirements were met. As soon as the Home Secretary became aware of the statutory requirements of the 2023 Act, he launched a public consultation and made it clear that he would retake his decision after he had had due regard to the responses and after he had considered whether the making of the order would meet the statutory tests. The order was therefore not laid before Parliament until the Home Secretary was satisfied that the statutory requirements of the 2023 Act had been met. I hope I have dealt with the key points that have been raised. Again, I thank all those who participated. I beg to move.

Lord Bach Portrait Lord Bach (Lab)
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My Lords, I thank all noble Lords who have taken part in this lively and interesting debate. I am very conscious of the time. I particularly thank the Minister, who had a difficult case to put and did it with politeness and good humour. I also thank Members of the House who have been present, as well as those who have spoken. I will not reply to the comments as I think the case has been made. I wish to test the opinion of the House.

20:45

Division 2

Ayes: 137

Noes: 54

Motion, as amended, agreed.