Care Bill [HL]

Debate between Baroness Browning and Lord Beecham

Tuesday 9th July 2013 Lords Chamber

[Lord Beecham]

My Lords, this Bill has the potential to do for social care what Beveridge did for the welfare state and Bevan did for the health service. It is potentially the most significant development in, for example, residential care since the workhouses were replaced by a more civilised form of residential accommodation.

The noble Baroness, Lady Barker, anticipated precisely the point I was going to make, which is that this is not just a matter for local authorities. My principal reservation about these amendments, if I have one, is that it looks as though the entire burden of information and advice is to be placed on local authorities whereas of course, as the noble Baroness rightly said, there are other potential partners who clearly need to be involved. I scribbled on the grid that is helpfully provided by those who support the Front Bench on this side the words “in collaboration with”, and then I thought of a number of potential partners. Of course the health service is one of them, but in addition I would suggest that the Court of Protection needs to be involved. It has a supervisory and supportive responsibility for a particular group of people and, with the development of lasting powers of attorney and so on, their deputies as well. I have to say—I have said it before and I will say it again—that I am not convinced that the Court of Protection is doing a terrific job in this area, but that is another reason why it should be looked at as a potential partner.

There may be other partners. For example, in the case of younger people perhaps with a learning or other disability, there are roles for those involved in further education, the Department for Work and Pensions and the Department for Business, Innovation and Skills. Those bodies might look at their role in terms of what is available by way of education, training and so on. It seems to me that a range of organisations should be involved, certainly as a whole, but more particularly in the provision of information and advice.

On these Benches we support most of the amendments that have been moved and spoken to this afternoon, with the qualification that, where relevant and necessary, a reference to collaboration should be included. For example, in Amendment 82B, the first amendment moved by the noble Baroness, Lady Greengross, one would want to see “in collaboration with” appropriate partners.

We support the amendments, notably moved by my noble friend Lord Lipsey, around the provision of independent financial advice. That seems very important. I have a slight reservation about Amendment 86D, which is about payment of,

“the reasonable costs of a first consultation with an independent financial adviser”,

to be paid for “by the local authority”. If I am ever in need of this kind of advice, I would be able to afford that relatively easily. Given the pressure on budgets, is a universal application of that principle necessary or desirable? That, however, is a detail, that might be looked at later. Given the scale of the potential involvement and the potential conflict of interest referred to by several noble Lords, the independence and proper status of such financial advice are important considerations.

With regard to the amendment in the name of the noble Lord, Lord Sharkey, I will perhaps anticipate the Minister by quibbling over the word “demonstrably”. Frankly, I am not sure that that takes us very far. As the noble Lord admitted, what is demonstrable to some is not necessarily demonstrable to others. I do not think that that part of his amendment is particularly cogent, although I agree with the rest of it.

I have more serious doubt about the amendment of the noble Baroness, Lady Browning. Amendment 86H requires that the information and advice be provided by “social work-qualified staff”. It could be, but I am not sure that it should be a requirement that it should be, given the pressure on the service in dealing with casework as it is. I do not think that the skills of social workers are always consistent with the role of giving information and advice in the sense that is intended by the amendment.

[Baroness Browning]

It is important that qualified social workers are present for the initial assessment. One of the things that might come out of our scrutiny of the existing Mental Capacity Act is the fact that the assessment of capacity requires professionals. Social workers clearly have a part to play in that. Whether the person has capacity, partial capacity or no capacity at all, at that point some advice is given and direction is needed. It seems to me that that is not the role of an amateur.

Police Reform and Social Responsibility Bill

Debate between Baroness Browning and Lord Beecham

Monday 11th July 2011 Lords Chamber

[Baroness Browning]

My Lords, I must confess, for the first time in taking this Bill through the House, that I am genuinely disappointed, because in the government amendments in this group we have tried really hard to address concerns across the House that were raised in Committee about giving more flexibility to achieve balance on the panel. As we know from previous debates, that balance ranges across geography, politics, gender and ethnicity. Of course, among the group of people who the panel can co-opt it is sometimes necessary, because of local circumstances, to co-opt people with particular expertise in an area who will be a useful addition to the panel. By raising the threshold of the panel size to 20, I have gone far in excess of anything suggested in Committee in order to provide those additional co-opted places on the panel so that these matters can be addressed.

Let me establish for the record that paragraph 30(3) of Schedule 6 already places the same duty on a panel to ensure that it represents the political make-up of the force area. This, of course, achieves exactly the same political balance as the current police authority regulations do. Therefore, while there is more scope for these additional nominated or co-opted people to be invited to sit on the panel—there is nothing mandatory about this; the panel can decide whether or not it wishes to go up to that threshold of 20—we have retained political balance based on what already happens in police authorities. The noble Baroness mentioned the attempt by the noble Lord, Lord Howard, to do that. I hope she will accept that we have not departed from that principle in the Bill.

However, I was particularly concerned that noble Lords, in speaking to their amendments, did not seem to be aware that it is not mandatory for co-opted members to come from local authorities. They can, if the panel so chooses, but they need not come from local authorities at all. Later, when I speak to my amendments, I will flesh out a little the fact that where the panel opts to co-opt more people on to the panel to achieve diversity, gender balance and ethnicity balance, the Secretary of State is required to approve these co-options because the panel will, in making that submission to the Secretary of State, be required to demonstrate why these particular people are being co-opted on to the panel. At that point, I would expect there to be a case for balance across a range of gender, ethnicity and expertise—whatever the thinking is behind the panel wanting to make these recommendations. The Secretary of State will then have the opportunity to see that the panel is not filling up those places just with chums—people of a like-minded persuasion or of the same political party. The Secretary of State will want it to be clearly demonstrated that the panel has seriously considered who it needs to add to give a balanced mix to enhance its functioning and to give fairness across the piece.

[Lord Beecham]

I welcome what the noble Baroness says, but what if, given the discretion to which she referred, the panel decides not to co-opt? What then?

[Baroness Browning]

I hope that there would be a discussion early on on the panel if there was a debate about the need to co-opt. I hope that would ensure that there was agreement on the need to co-opt. We keep trying to drive down to micromanage the panels. I am concerned to give panels the authority and flexibility to get the balance right, based on their judgment of their local needs, without trying to micromanage through the Bill a lot of situations that may or may not arise. With all due respect, we are talking about adults who—particularly the political nominees to the panel—will be there on behalf of specific local authorities. I should have thought that there would be grown-up discussion.

We have tried to get a balance in the Bill. It is important that the panel has the flexibility to co-opt. Raising that threshold to 20 is far in excess of what anyone asked me to do in Committee and more than generous. I am more than happy to stand here and read out the number for every police force area that will now be able, in the main, to co-opt an extra eight to 10 people. That is a huge number of people to get that balance right.

[Lord Beecham]

In the noble Baroness’s Amendment 128, does not new subsection (2B)(b) impose a condition that “no such resolution” to have a number of co-opted members may be passed unless,

“the Secretary of State agrees that the panel should have that number of co-opted members”.

What is that if not micromanagement?

[Baroness Browning]

That gives the Secretary of State, as I just described, the opportunity to ensure that the panel’s motive is to ensure the overall balance of the panel and to prevent the panel being packed with chums and politically slanted, which noble Lords have been concerned about—we have had a lot of discussion in Committee and on Report about this. Noble Lords have asked whether the members will be of the same political party as the PCC may be seen to have. This gives the Secretary of State the opportunity to look at the motivation of the panel in co-opting people. This is not about the Secretary of State wielding a lot of power in the sense of deciding whether or not the panel co-opts, but about whether the Secretary of State believes that the submissions made have met an objective that the panel has clearly identified.

Police Reform and Social Responsibility Bill

Debate between Baroness Browning and Lord Beecham

Monday 4th July 2011 Lords Chamber

[Lord Beecham]

My Lords, tempted as I am, I shall not withdraw the kind remarks that I made about the noble Baroness—I shall resist the provocation. However, the answer is extremely disappointing. It seems to take little account of what is needed to develop a whole-systems approach to the issues of crime, disorder, crime prevention and community safety. This is not a one-way street. These matters cannot be tackled just by police authorities, under whatever form they take; there has to be a collaborative exercise between the police and the other agencies, especially local authorities.

The Minister is effectively saying that a mayor or council leader can be a member of a scrutiny committee because that is all that the PCP is: it is not an executive body and has no power to commit anything at all. Frankly, I would be very doubtful whether a mayor or council leader of any significant authority would have the time or the inclination to serve as a member of such a body. Moreover, we need the full engagement of the area’s local authorities with the police in order to develop joint approaches and possibly joint programmes. That is not something that can be done at one remove. You do not send someone to a scrutiny panel to negotiate on behalf of your authority, particularly if it is a large unitary or county authority.

[Baroness Browning]

I say for the sake of clarification that I would not in any way expect the police not to have contact with local authorities. We are not talking here about the chief officer’s role and communications with local authorities; we are talking about the gateway which the PCP provides for all local authorities in that force area to be represented on the panel.

[Lord Beecham]

We are indeed. We are also talking about how the commissioner makes those significant strategic decisions, as he would have responsibility for the police’s part of what is not just a policing matter, but a matter which transcends the boundaries between police authorities, however constituted, and local government. This is a two-way street and one way is blocked by the Government’s apparent refusal to recognise that there has to be a partnership arrangement between police authorities and local authorities. I am really at a loss to see why the Minister and particularly her advisers are intent on blocking the way towards a collaborative and potentially fruitful relationship, which cannot be assisted by the way that the Bill is currently drafted. If that is the Government’s position, I am afraid that I must test the opinion of the House.

Police Reform and Social Responsibility Bill

Debate between Baroness Browning and Lord Beecham

Monday 4th July 2011 Lords Chamber

[Baroness Browning]

I have not addressed that question before. I will come back to the noble Baroness. I am probably doing what my officials call “going off piste” here—I do it quite frequently—but I believe the PCC has the authority to build these relationships and if they felt it appropriate for someone, not necessarily a member of the panel, to represent them for a particular purpose, perhaps a particular project or for something that had been identified as a priority, I hope they would have the flexibility and the power to do that. I will write to the noble Baroness before I get into too deep water, but on the face of it I see no reason why the PCC should not nominate someone to do that if it were felt necessary for that to happen, not necessarily on a permanent basis but for a particular local situation where it was necessary to work quickly and rapidly.

I would add that police and crime panels are to be made up of representatives from every local authority in the police area, and each CSP in the police area will continue to benefit from a local authority representative. It seems to me that this negates the need for the PCP to be represented on the CSPs in its own right. The local authority is already represented on the CSP and the PCP so, to go back to my reply to the noble Baroness, if there were special circumstances because of a situation that had arisen, I would hope that the PCC would have the authority to ensure that there was representation to deal with specific issues.

Those representing the local authority are of course responsible for linking up that work. I heard what the noble Lord said about that not always working in practice but, quite frankly, one of the difficulties that we often face is that things do not work because individuals do not communicate as expected. If there were problems in that area, and a lack of joined-up communication, I would expect a rather grown-up approach in that someone, presumably the PCC, would step in and say, “We have a problem here, let us sort this out”; or, from the local government end, if it they felt that there was a problem at their end and they were not getting enough report-back from those who represented them, whom they will have chosen themselves, they would say, “We are not getting enough feedback on this, can we do something about it?”. Sometimes breakdowns in communication actually just need a bit of leadership—it is not rocket science. Of course, leadership is what we expect the PCC to give, and there is certainly plenty of leadership in local authorities to make sure that, if there is a problem, they identify it and do something about it—they do not need that to be in the Bill.

The Government are trying to devolve to local areas and to respect the people who serve on these committees, particularly the people at local government level who are elected to carry out those sorts of functions. I am therefore very resistant to going into minutiae of this kind in the Bill. Given that representatives will hold unique and privileged insights into policing and community safety on behalf of the local authority, it is inconceivable that a competent public servant would not ensure that the appropriate links were made and that the local authority would seek to rectify that situation. On that basis, I ask that the amendment not be pressed.

Amendment 49A, tabled by the noble Lord, Lord Beecham, asks us to define local authorities as criminal justice bodies subject to the duty to co-operate. Again, I have some difficulties with this. First, local authorities are not criminal justice bodies. They are, however, concerned with the promotion of community safety. Secondly, Clause 11(1) already provides for PCCs and the responsible authorities that are members of CSPs to co-operate with each other. Local authorities are responsible authorities, so they are covered by the duty to co-operate in Clause 11(1). There is therefore no need to include them in a separate duty to co-operate in Clause 11(2). As I have already outlined, government Amendment 43 in this group strengthens the duty to co-operate in terms of the PCC and responsible bodies having regard to each other’s priorities in exercising their functions. This will apply to local authorities as responsible authorities. I am grateful to the noble Lord for tabling his amendment, but it does not really contradict what I have tabled.

[Lord Beecham]

I have just looked up the clause to which the noble Baroness refers—Clause 11 on co-operative working. She is quite correct to say that Clause 11(1) refers to the “responsible authority”. However, that subsection talks about the co-operation between the elected local policing body and the local authority as a responsible authority; it does not bring the local authority within the family of the other organisations in subsection (4) that are obliged to co-operate, which is why I suggested that they should be included there. In other words, this could be seen as a bilateral relationship instead of a multilateral relationship, which was the defect that my amendment sought to cure. Will the noble Baroness take it away and think about it further?

[Baroness Browning]

Yes, I am very happy to do that. I had rather thought that the noble Lord was seeking to strengthen my own amendment in this matter. I take his point about the difference between bilateral and multilateral relationships. I am very happy to take it away and look at it again, just to be absolutely sure that we have got this right. I had regarded the amendment that he tabled today as rather unnecessary, but I will double-check because I agree with what he is trying to achieve here.

Amendments 53 and 59 seek to increase the panel’s influence over the PCC. Amendment 53 provides that the panel may specify information that it requires the PCC to include in his or her annual report. Amendment 59 provides that the PCC, when carrying out his or her functions, must have regard not only to reports and recommendations made by the panel on the annual report for the previous financial year but to any other ad hoc reports or recommendations issued by the panel. I completely agree that a PCC should be listening to and actively considering the panel’s views and recommendations, and I would fully expect it to do so. This is bound to happen without it being put on a statutory footing. The panel will have the opportunity to scrutinise the PCC, and that will include the PCC’s consideration of any of its advice, reports or recommendations. If the panel believes that information is needed in the public domain, it has the powers to request and publish it itself. Ultimately the public will judge the PCC’s decisions. The Government are clear that we have struck the right balance here, so I ask that the amendments not be pressed to a vote.

Amendments 54A and 56A concern victims and witnesses of crime, and would add witnesses of crime to the list of groups whose views the PCC must seek and have regard to when drafting and issuing the police and crime plan. This is in addition to the present provision that allows for the views of the people in that police area and of victims of crime. This is already covered. I would certainly expect the PCC, in having regard to the views of people in that policing area—particularly, as it says, the views of victims of crime—to consider both the victims and the views of witnesses.

Amendments 40, 46, 55, 56 and 57 add bodies working to combat crime and disorder and assisting the victims of crime to the list of organisations that the PCC and MOPC must consult or have regard to when drafting the police and crime plan. Amendment 58 adds local authorities, including parish and town councils, to that list. There is already provision in the Bill for the PCC to consult victims of crime in the area; by extension, we would expect this to include bodies and services that help to support them. There is no need for this further provision. As for bodies reducing crime and disorder, a PCC will be driven to reduce crime and disorder simply by virtue of his or her position and electoral mandate. This is at the heart of what we expect PCCs to achieve: to reduce crime and antisocial behaviour.

The Government do not seek to tell PCCs how to go about their job in detail where that is unnecessary or disproportionate. Crime and policing strategies must be formulated according to the needs of the local area. It would be a short-sighted PCC indeed who did not consult such groups, including witnesses of crime, or pay attention to local councils within the force area. Amendment 239A seeks to list all PCCs as responsible authorities for the purpose of Section 5 of the Crime and Disorder Act 1998. In effect, it would make a PCC a member of a community safety partnership within each local authority area in his or her force area. To do so would place a requirement on the PCC to agree with each member of a CSP a strategy for the reduction of crime and disorder and a strategy for combating the misuse of drugs.

However, the current provisions in the Bill, as set out in Schedule 11, envisage a different role for PCCs in relation to the CSPs. We are taking a power to make regulations conferring functions on PCCs in relation to CSPs. We intend to make regulations allowing the PCC to bring together community safety partnerships within the force area to address the specifics of crime reduction and drug abuse, as listed in the Crime and Disorder Act 1998. The PCC will not sit on a CSP but will have a commissioning role over its activities, including grant-issuing powers. Therefore, the police service role in delivering those activities will be represented by the chief constable or his or her nominated representative, and ultimately the chief constable will be held to account by the PCC for the force’s role on the CSP. We see the existing provisions as adequate. Therefore, I ask that these particular amendments not be pressed to a vote.

Police Reform and Social Responsibility Bill

Debate between Baroness Browning and Lord Beecham

Monday 4th July 2011 Lords Chamber

[Baroness Browning]

I do indeed and although we have not been able to agree on everything, I have appreciated the constructive way in which the noble Baroness has brought forward her suggestions, both in Committee and on Report. I know that I have disappointed her in many of my responses, but I hope she will accept that in this change to the Bill I have listened carefully across the House, but particularly to her words. She has chosen her words very carefully, she has had a good point to make and I have tried to encapsulate that in this amendment. Therefore, I propose an amendment to the general provisions in relation to police and crime panels at Clause 29 to reflect the need for the PCP to exercise its powers with a view to supporting the PCC in its duties. The police and crime commissioner will be solely responsible for holding the chief constable to account. However, I accept the noble Lord’s premise that the relationship between the commission and the panel would be one of support as well as challenge.

The noble Baroness, Lady Henig, used the word collaborative to describe the proposed relationship between the commissioner and the panel. My concern with this is that it would ultimately create confusion over who holds the police to account. Therefore, the Government propose to place a duty on the panel to exercise its functions in support of the commissioner. This will mitigate the risk of conflict between the commissioner and the panel without diluting the accountability of the commissioner.

[Lord Beecham]

My Lords, as regards the final point, I can only agree with my noble friend Lord Hunt. Amendment 107 is the absolute embodiment of a platitude. It is wholly unnecessary and almost insulting to prospective members of police and crime panels as it appears to assume that there may be a case where their purpose will not be to support the effective exercise of the functions of the commissioner. In the real world, that cannot be the case.

I am very disappointed with the Minister’s response in relation to how the precept is arrived at, although less so in connection with the question of the separate precept. Perhaps I may say that she has a monocular and wholly unrealistic view of how these processes are likely to work. As she did in the earlier debate, she is viewing it from the perspective that all we are concerned about is the budget of the police authority, however constituted, and its precept, as if that were something discrete, separate and completely detached from what is going on in local government in the area in terms of the service aspect where collaboration is clearly essential, the totality of the expenditure and the cost to the local taxpayer. That simply is not the case. If it were to be the case, it would be very much for the worse in terms of effective policing and local government. That collaboration clearly has to be facilitated and the arrangements in the Bill do not effectively facilitate it.

The noble Baroness says that it will be important to have access to local knowledge through the members of the crime panels. But that local knowledge in the case particularly of district council members in two-tier areas will be confined to relatively small parts of the force area. In those areas, there will be perhaps one or two county members and many more from district councils. That will not give the police commissioner a realistic view of what is necessary to be done for the whole force area. It is also asking too much in the case of metropolitan areas for a single individual or perhaps two to speak for the whole authority, which in Birmingham’s case runs into hundreds of thousands and sometimes to very many more than that. The West Midlands has 2 million to 3 million people. Even the slightly expanded number to be proposed later in a government amendment as regards the constitution of the police power will leave people representing very large areas. They will not have the authority of leaders of councils. Given the pressures on them, leaders of councils or elected mayors—I see that the Government will move an amendment for elected mayors to serve on police authorities—will not have the time to devote to what is effectively a scrutiny exercise for most of the year.

In my experience as leader of Newcastle City Council years ago, the leaders met the police authority to discuss the budget in some detail. We had a proper discussion, and the authority and the back-up to do that, which is what is required under the new dispensation. You will not get that, with the best will in the world, from panel members. They will not have the authority to speak for the whole council. They will probably not get the back-up that will be required particularly in the case, if I may say so, of district councils whose resources can be very stretched. We will simply not have an effective relationship between the local authority in an area and its police force. For the life of me, I cannot see what the Government have to lose by accepting the amendments, at least in respect of this obligation to consult with the authorities, as opposed to a handful of members from those authorities who will not have themselves any authority effectively to speak for the authorities which send them there.

This will be a missed opportunity. It will weaken the effectiveness of the panel and it will therefore weaken the effectiveness of the whole police authority. It is ironic therefore that Amendment 107, that the Minister moved, which talks about supporting the effective exercise of the functions of the police and crime commissioner, in fact, by the attitude that the Government are taking to the amendments, will achieve precisely the opposite. An opportunity is being missed to cement a productive relationship in the interests of the whole area and I urge the Minister to take this back, to talk to her colleagues in the other place and see whether she cannot induce them to see some sense. I beg leave to withdraw.

Police Reform and Social Responsibility Bill

Debate between Baroness Browning and Lord Beecham

Wednesday 29th June 2011 Lords Chamber

[Baroness Browning]

I am grateful to the noble Lord. I shall pick up some of the points just raised before giving a fuller explanation. The appointment, suspension or dismissal of a chief constable, which was raised by the noble Baroness, Lady Henig, cannot be carried out by the deputy; nor can setting the precept, which the noble Baroness specifically asked about. There are proscriptions on what the deputy can do and the delegation of powers to a deputy would be subject to paragraph (b) in Amendment 63. Such powers would be restricted. However, I want to make it absolutely clear that the PCC has ultimate responsibility for whatever he or she delegates to the deputy. Whatever decisions are made in the areas where the deputy is able to act, the PCC is the person who will be answerable. There is no question that the PCC’s responsibility and accountability to the police and crime panel, and ultimately to the general public who elected him or her, is in any way reduced by delegating specific functions or authority to the deputy.

Several questions have been asked. I shall pick up the point which the noble Lord, Lord Beecham, raised about whether the deputy can be a member of the PCC’s staff. As a member of staff, when the deputy exercises a power he or she does so in the name of the PCC. As the PCC will, as I said, retain ultimate responsibility for it, wide powers are being conferred on the deputy. The deputy will be regarded as a member of the PCC’s staff for that purpose, so the checks and balances will apply as much to him or her, as a member of the PCC’s staff, as to anyone else carrying out a function within that office.

[Lord Beecham]

Does that mean that the person appointed will already be a member of the PCC’s staff; or that if he comes from outside and was not already a member of staff, his appointment will make him one? There are two different positions there.

--- Later in debate ---

[Lord Beecham]

In the circumstances just outlined by the noble Baroness, there might be a deputy commissioner who would not be eligible to be appointed acting commissioner. However, if the deputy commissioner is a senior member of staff, is it possible that an acting commissioner might be appointed who might be junior in status to that deputy? Would that not create an extremely anomalous position?

[Baroness Browning]

I have said that I will write to the noble Lord on this whole question of staff. Clearly there are different categories of staff and I would like to take some advice on those before I give him a definitive reply. I promise to write to him very quickly on that matter. The point was raised particularly about chief finance officers but, as I have mentioned, they are appointed on merit and are politically restricted. I will look at other categories of staff that he has just raised.

Police Reform and Social Responsibility Bill

Debate between Baroness Browning and Lord Beecham

Wednesday 29th June 2011 Lords Chamber

[Baroness Browning]

My Lords, I understand what the noble Lord is saying, but that is why in other parts of the Bill we have set out clearly what the appropriate standards should be for the chief finance officers: both the chief constable and the PCC will have separate chief finance officers, who should not be combined. If those positions were combined, one could well see that that could lead to the sort of difficulties that the noble Lord, Lord Hunt, has just identified. It is important that, as corporations sole, they are quite separate entities. There is a very clear distance between them in terms of that accountability.

[Lord Beecham]

Although I am a lawyer, I must confess that I struggle with the concept of the corporation sole. In listening to the noble Baroness outlining the position, there appears to be a dualism here: the chief constable acts in his own right and he also functions as the corporation sole. What happens if the chief constable is unable to function? He might be suspended or incapacitated or—heaven forfend—he might die in office. What happens then? Where is the corporation sole?

[Baroness Browning]

My Lords, I will come back to the noble Lord on that point, but my understanding is that the chief constable is the body corporate in the same way as a corporation would be. Although the chief constable or the PCC would be the corporation sole, they carry with them the corporate requirements that would apply in any other situation as far as a corporation was concerned. It is not personal to them; they are not personally legally obliged, for example, to issue contracts in their own name with their own personal liability, so the fact that they may be off the scene for some reason or other, such as the noble Lord has described, does not necessarily destroy the corporation sole as a legal institution. The legal personality—the legal institution—that the corporation sole brings about protects, obviously, the personal liability of the individual concerned, but that would not mean that everything would collapse in the event that the individual was not personally on the scene.

I am looking to see whether the noble Lord perhaps knows where I am coming from on this, but I hope that he does.

[Lord Beecham]

I am not sure. Somebody has to take decisions in the name of the corporation sole, and I am not sure whether that concept extends beyond the individual. Perhaps the noble Baroness could write to me about that—upon taking better legal advice than I can proffer.

[Baroness Browning]

I am sure that that is not the case.

The point is that it is the legal personality that the corporation sole invests in the chief constable and the PCC. For example, if the chief constable was for some reason unable to carry out his or her duties, the legal entity of a corporation sole would still remain, and whoever stepped in to cover the policing operation while that chief constable was indisposed or was waiting to be replaced would automatically have the protection of the corporation sole. It is the personality of the institution, not something that an individual has personal liability for.

I am not quite sure how I can explain this any more clearly. I feel that it is quite clear in my own head.

[Lord Beecham]

You have explained it very well—

[Baroness Browning]

Thank you.

[Lord Beecham]

But I still do not understand it.

[Baroness Browning]

My Lords, I am grateful to the noble Lord. I am not a lawyer, as he knows, but I have in a previous existence been a businesswoman, so I am used to dealing with corporate matters per se. Therefore, I feel that I have a clear understanding of what the provision is trying to do.

The amendments by the noble Lord, Lord Harris, to Clauses 5, 19 and 20 and Schedule 16 would limit the police commissioner’s status as a corporation sole to employment purposes only or, alternatively, remove the corporate status entirely. Instead of a corporation sole, the amendments would allow PCCs to delegate functions to a chief officer, which the Bill currently prohibits.

The noble Lord has asked that Amendment 84 be added to this group. I think that the intention of Amendment 84 is to discuss the ability of the PCC to delegate to the chief constable. I get the point that he is making, to get rid of the status of corporation sole and reintroduce the idea of delegation of functions from the PCC to the chief as is the case with the police authority and the chief. This continues the severe lack of clarity between the bodies that results in poor accountability. As I have just said in the beginning of my remarks, it is important that there is clarity and separation between the two. The amendments to Schedules 4 and 16 would remove the requirement for the commissioner to have a qualified chief finance officer on his or her staff.

I will address the amendments on corporations sole first, but I have to say to the noble Lord, Lord Harris of Haringey, that I do not quite follow his concerns about the medieval basis of this. In this country, we have an understanding of the common law, which is at the heart of our criminal justice system and has been developed over hundreds and hundreds of years. The fact that something has a long history does not necessarily mean that it is not functional. I have to tell the House—and I must admit that I was rather surprised to find this—that I am a corporation sole, as a result of being a Minister of State who is able to sign off public expenditure. I have a particular personal interest now in making sure that I understand every single aspect of this role, so I can assure noble Lords that it is not something that would be regarded as archaic or medieval. I do not see myself in my role as a Minister of State as archaic or medieval. At the same time, we should not denigrate this role, which is widely used—we have already had some examples of it—just because it comes from our ancient history.

The Government are clear on our need to establish chief constables as corporations sole. It is that legal status that allows them to employ staff in their official capacity—a vital function in the context of providing greater autonomy over the day-to-day management of the force.

During our Committee debate, the noble Baronesses, Lady Henig and Lady Hamwee, and the noble Lord, Lord Shipley, also tabled amendments to limit the ability of a chief officer to enter into contracts so that it applied to employment matters only. These amendments would have removed the chief officer’s ability to enter into other contracts and agreements unless the chief officer had obtained the PCC’s permission to do so. The Government recognise fears, which have been expressed, that we may have given chief officers too much unfettered power. We agree that the powers that we are giving to chief officers, along with their corporate status, should be subject to appropriate safeguards. We agree that to give chief officers an unfettered power to enter into contracts and agreements, potentially committing the force to multimillion pound deals, does go too far.

In government Amendments 13, 15, 33 and 34, we still believe that in the interests of flexibility, chief constables should be able to enter into contracts other than simply those in relation to the employment of their staff, but we believe that it should be subject to a requirement to obtain the authorisation of the PCC. We believe that there can be flexibility in this; the authorisation could be given in general terms—for example, a PCC could give a general consent for a chief constable to enter into any contract in relation to a particular kind of service, such as provision of forensic services, which are often required as a matter of urgency in an investigation. Or the PCC could give a general consent for the chief constable to enter into any contract with a value less than a specified amount.

--- Later in debate ---

[Baroness Browning]

My Lords, if in practice the PCC discharged his or her duties in respect of coming to a practical and non-bureaucratic agreement with the chief constable, I would expect the panel to talk immediately to the police and crime commissioner about the way they were conducting themselves. When the noble Lord talks about checks and balances, this is exactly the sort of thing where one would expect the panel to call that commissioner to account. It would soon become known to the panel if the arrangement between the PCC and the chief constable over these financial arrangements and budgets was causing such a constraint that it was affecting operational activities.

It is not that this is a completely open situation, where nobody would call the PCC to account. Later in the Bill, we have tabled additional amendments that give far more access for the chief constable to the police and crime panel, which would be a very good thing. I am sure that if the chief constable thought that the financial arrangements with the PCC were affecting operational independence or causing problems, they would soon make that known to the police and crime panel.

[Lord Beecham]

What could the panel do about it?

[Baroness Browning]

My Lords, the whole point is that this is transparent. These are not things done behind closed doors, which nobody else will know about. While the panel is there, doing its job, we expect it to act, if it identifies such a problem, as with any other problem between the chief constable and the PCC that causes operational difficulties on the ground. The panel should then call the PCC to account for an explanation and to resolve the matter.

I do not agree that there is no check or balance on the PCC in this matter if there is a good strong panel. In a way, this reflects what police authorities do today. I understand the point that the noble Lord is making: this is an individual elected person. However, this is not much different from the way in which the police authorities would step in if they perceived a problem in their force area at the moment. I shall move on from this but I am sure that we will come back to it.

The Government’s view is that there need to be clear lines of accountability for the public. That requires the public to know what the respective responsibilities of the PCC and the chief officer are. The current system of delegation does not allow for this. Inspection has shown that sometimes even police authorities are unclear as to where the divide is. HMIC has said in its report on inspections of police authorities:

“It is critical that police authorities maintain clear division between their governance responsibility and the chief constable’s responsibility to lead and manage the organisation”.

Establishing two corporations sole, and prohibiting delegation means that it will always be clear who has which responsibilities. This a positive move forward. However, chief constables should not have unfettered powers, and this is what we have sought to address. Therefore, I hope I can persuade the noble Lord to withdraw his amendment and to support government Amendments 14, 15, 33 and 34.

Police Reform and Social Responsibility Bill

Debate between Baroness Browning and Lord Beecham

Thursday 9th June 2011 Lords Chamber

[Lord Beecham]

I thank the noble Baroness for giving way. It is possible, under the Localism Bill as it stands, for councils to constitute standards committees. It will not be a requirement on them but they could do so. In that event, could a complaint against a councillor member of an authority in respect of his or her service on a police and crime panel be investigated by the standards committee of the council on which he or she serves?

[Baroness Browning]

That is a good question. As I indicated to the Committee, we would expect the police to investigate serious complaints so far as the panel is concerned. As I said, however, we are in discussions with colleagues and will come back to the House with a decision on where would be the appropriate place to make amendments to the Bill.

Police Reform and Social Responsibility Bill

Debate between Baroness Browning and Lord Beecham

Monday 6th June 2011 Lords Chamber

[Baroness Browning]

My Lords, I apologise for the inconvenience caused to the House. I will address the amendments that we have debated. There may be a sense of déjà vu because I have read out a bit of this already. I will begin at the beginning. I will set out how the amendments would affect the Bill, and the Government's position. The overarching effect of the majority of the amendments would be to change the relationship between police and crime commissioners and the police and crime panel, as well as the composition and powers of the panel. This would include provision for the police and crime commissioner to be drawn from the panel membership. The Government's intention remains that police and crime commissioners will be elected by the public to hold chief constables and their forces to account. They will be elected on a mandate that will give the reform the democratic accountability so necessary in policing today. I stress again that this is subject to the Bill returning to your Lordships’ House in a different form to that which we are debating tonight.

The arrangements for the panels set out in the amendments would place a much greater level of prescription on their composition and how they arrive at their membership. Local areas can decide for themselves how to appoint the police and crime panel members in a fair and balanced way. I referred earlier to the importance of balance; we should look at that and I hope that we can make progress. I also fully recognise the importance of ensuring that members of the panel can represent geographically large and diverse communities. It is an important part of the police and crime commissioner’s role to reach out to their communities in order properly to consider and reflect their views in policing and community safety arrangements. The commissioner has a responsibility to understand and represent the electorate in all its diversity.

The panel’s main role is to provide a check and balance for the commissioner by ensuring that each local authority is able to nominate a representative to the panel for its force area and ensure that there is a clear, fair and proportionate process in place that reflects local political structures. Although I appreciate the purpose of all these amendments, I believe that we have created arrangements that are sufficiently flexible to meet local needs while ensuring that police and crime panels are the right size to avoid becoming an expensive and bureaucratic burden.

Amendment 123B would require the police and crime panels to appoint an audit committee. Several Members of the Committee were concerned about this. Police and crime panels are free to establish sub-committees that would help to carry out their functions most effectively. It is up to individual panels to decide which areas of business should be covered by such sub-committees, but we would not want to prescribe that in legislation.

On Amendments 125, 125A, 126, 128 and 138F, I also recognise the need to ensure that the Secretary of State’s powers to appoint panel members are necessary and effective. The Secretary of State’s power to appoint police and crime panels will be applicable in England as a backstop power, should all the local authorities in a police area be unable or unwilling to appoint. These are in extremis situations, but that power is there. This backstop power is considered necessary, as police and crime panels will be a vital part of the new landscape.

I have already mentioned Wales, which is the subject of Amendments 132A, 132B and 132C.

[Lord Beecham]

Perhaps I may draw the Minister's attention to Part 2 of Schedule 6. Paragraph 4(1) talks about the composition of the police and crime panel and prescribes a number of persons “properly appointed” and,

“two members co-opted by the panel”.

There is not, is there, much flexibility in that? That is one of the issues to which the amendments are addressed—namely to increase the proportion of co-opted members. It does not seem to be allowed for in the Bill as it stands.

[Baroness Browning]

The noble Lord is right: the co-option is limited to two. However, the intention is to get the balance and to consider the overall numbers on a panel. I shall take away the issue to ensure that we have the formula right in terms not only of geography but, as I said earlier, of gender balance, ethnicity and, as noble Lords have said, political balance as well. I am very happy to take a look at that.

I have mentioned Wales, and at the last Committee sitting I gave quite a full explanation of the background to the issue. It is a difficult situation. I say to noble Lords with a particular interest in the part of the legislation affecting Wales that if they would like to come and have a chat, I am happy to talk to them on a one-to-one basis.

Amendments 135A and 135B would allow the police and crime commissioner to be a member of the police and crime panel. This goes against the fundamental principle of this reform, which is to have a directly elected individual accountable to the public for policing, with scrutiny being carried out by the police and crime panel. The amendment seeks to create a police authority by another name. I see from noble Lords’ expressions around the Chamber that they probably know that this is what the amendment would do, and I know that they are trying keep the police authority structure in the Bill if they can. This is where we get the tension between the Bill's philosophical aims and those who perhaps do not share the aim of making the democratically elected police and crime commissioner the accountable person.

The effect of Amendment 136 on the Bill as introduced to the Lords would be to prevent a directly elected mayor being co-opted as a member of the police and crime panel for that force area, as was mentioned earlier. It is intended that directly elected mayors will be required to be an elected member of the panel. This provision was in the Bill as introduced in another place but due to a drafting error it was omitted when the Bill was amended by the substitution of a new Schedule 6. It is intended that the provision will be reinstated by government amendment.

Amendments have been tabled that would block the appointment of a mayor on the panel as either a full panel member or a co-optee. We believe that as a directly elected representative and leader of their community, they should have a role on the panel, and we will be amending the Bill accordingly.

Police Reform and Social Responsibility Bill

Debate between Baroness Browning and Lord Beecham

Monday 6th June 2011 Lords Chamber

[Baroness Browning]

Certainly, they would have to stand down at the point at which they put themselves forward for selection or they would have to give notice at that point. Once the period of the election for the police and crime commissioner begins, they could not have an interest in being a Member of Parliament. The point is that there simply is not time to do both demanding jobs. This is not about what other people do, how other people take on public appointments or how they perceive the time factors. The fact is that the role of the PCC is full time.

I should correct something that I have just said. Apparently, an MP would not have to resign and trigger the by-election until elected. If they were an unsuccessful candidate, they would not have to trigger a by-election. I apologise to your Lordships’ House. In a way, that is almost digressing from the point that I hope I will be able to make between now and 3 o’clock in the morning.

[Lord Beecham]

Some of us are anxious that matters should not proceed for very much longer but for just a little longer. Perhaps the Minister, who is obviously adept at multitasking, could consider the implications of the Localism Bill, on which we are to embark tomorrow, and particularly the position of elected mayors. Is it the Government’s view—perhaps the Minister will need to take advice on this—that elected mayors should be full time? Surely it would be her view, and that of the Government, that the position of elected mayors in the 12 authorities that might confirm the mayoral system in a referendum next year and will thereafter have to combine the position of elected mayor with head of paid services would be a full-time job. Will she also confirm that there is nothing in this Bill to prevent such an elected mayor, even one combining the position with that of head of paid services in an authority, from serving as a Member of this House? In that event, what is the difference when it comes to the elected police commissioners?

Furthermore, it is not so long ago that eminent judges sat in your Lordships’ House as Law Lords. As I understand it, there was some controversy over whether they should continue to do so. They no longer do so but it can hardly be argued that theirs was not a full-time responsibility of the highest order. That did not appear on that basis to cause any problems. The problem of the position of the Law Lords was that they were both making laws and then interpreting and adjudicating on those laws. That is not a comparable situation with that of police commissioners. Is there not an inconsistency in the approach that suggests that, even if the job were deemed to be full time, about which some of us would have reservations, that should disqualify anyone from sitting in this place and being a commissioner?

[Baroness Farrington of Ribbleton]

My Lords, will the Minister also confirm that in the register of interests for your Lordships’ House, none of us is required to signify whether we are in full-time or part-time employment outside this House? I would consider that, in choosing and voting for someone to be a commissioner, were this Bill to become an Act, they could not serve in Lancashire and be a Member of your Lordships’ House, although Surrey may be possible as a combination. It would be no more difficult than being in charge of running a bank or a huge business and being a Member of this House. The Government are not being logical, and that surprises and shocks me.

Police Reform and Social Responsibility Bill

Debate between Baroness Browning and Lord Beecham

Tuesday 24th May 2011 Lords Chamber

[Baroness Browning]

My Lords, I am grateful to noble Lords for raising the potential implications of the protocol or memorandum of understanding for the non-geographic police forces within England and Wales. Of course, the Bill does not change the governance structures of these bodies. With the exception of the Serious Organised Crime Agency, they are not answerable to the Home Secretary, who is to issue the protocol. The protocol will not vary the interaction between the Home Office and non-geographical forces. That is why in the Bill we have safeguarded the direction and control of chief officers. Through that, their operational interaction with, for example, the British Transport Police and others remains unaffected.

There are also questions about how the protocol, as it is currently conceived, would apply to these bodies, which differ from the geographical police forces significantly in terms of their functions. The Committee has touched on some of these this evening. The governance arrangements and relationship with the public, although overlapping, are often quite different. However, I appreciate that at least some of those forces may benefit from such a protocol being in place. I genuinely welcome further discussion on the merits of widening the protocol's scope.

However, this has not been the immediate focus of the protocol as drafted and we would be keen to discuss that further, including of course detailed discussions with the bodies concerned. I reiterate that Members of the Committee who have expressed an interest in the protocol as currently drafted will receive an invitation to discuss it in more detail with me. Those letters should go out in the next 24 hours. I hope that after the recess we can have a more detailed discussion about that protocol.

The Government expect police and crime commissioners, community safety partnerships and other criminal justice bodies to co-operate in order to deliver the best service to local communities across the force area. Their priority should be tackling crime and disorder for the benefit of the local people. Therefore, they should work together to overcome any particular issues. Clause 10 sets out in legislation a reciprocal duty to co-operate for police and crime commissioners and authorities comprising community safety partnerships. It also requires police and crime commissioners and other criminal justice agencies within their force area such as the probation, prison and court services to make local arrangements to work effectively together.

We want to establish a framework that enables commissioners to develop strong relationships with these key local partners. Those relationships will be critical to commissioners in order to make the most sustainable impact on crime and community safety. The clause sets the foundations for that framework and we expect commissioners and local partners to build on that through strategic engagement and dialogue. They will work together to provide the most effective and efficient response to the needs of their local communities. It is important to see Clause 10 in the context of other measures to advance joint working in the Bill, such as grant-making powers, provisions to elevate crime and disorder strategies to a force-wide level and to commission reports to examine any element of those strategies.

The noble Baroness, Lady Henig, asked specifically about payment by results. I hope that she will find it agreeable for me to write to her on that issue. I know that she focused on Clause 10.

I do not think it necessary to further labour the duty with a memorandum of understanding which has the potential to become burdensome on the professional and experienced services that certain amendments within this group are seeking to bind in law. We have agreed a way forward with the protocol and I hope that noble Lords will avail themselves of making their views on specific issues known to me. However, I want to keep that light touch because there is a danger if too much detail is set into the protocol it will become a burden. That is not what we want it to do.

The noble Lord, Lord Beecham, was concerned that an individual would carry the power and responsibility. But I gently remind the noble Lord that if they are elected by the public, that person, whatever badge they had when they stood for election, would have had to present themselves to the public and convince them that they were able to do the job. They would have to carry out those important functions not just in an honourable way but in a competent way. Therefore, they would have to gain the trust of the public.

This is often the cause of debate. We say that we trust the public, but do we really? I do and I believe that our democratic process is such that if we give the public an opportunity to elect somebody to an important and responsible role such as this—as we do in other areas of our democratic process—we should trust them. The police and crime commissioners will of course have the scrutiny of the panel behind them which will hold them to account and who will be an important check and balance on the way in which they carry out their duties.

[Lord Beecham]

Does the Minister not see that, in all the partnerships that arise, there will be only one person—the elected police commissioner—who stands alone? In no other case will he be engaged with a single individual. He will be dealing with a properly constituted body, whether that is the Lord Chancellor's Department—he will not have a direct relationship with the Lord Chancellor—the Prison Service, the National Offender Management Service or the youth offending teams.

We will have a situation where an individual, elected as the noble Baroness said, deals effectively with a number of corporate bodies. Does that relationship not look odd constitutionally? My noble friend Lord Harris pointed that out. Is there not a danger that, with their having been invested with that elected authority, there may be a temptation, which may be difficult to resist, for an unprecedented—in our system—degree of pressure on other parts of the criminal justice system?

[Baroness Browning]

The Mayor of London might well be described as having similar power as constituted already and already elected. I was not aware at the time that that was an argument brought forward to oppose the powers of the Mayor of London. I do not know whether I am reading the noble Lord correctly. I understand why he is concerned but he has not yet persuaded me. I am sorry to tell him that.

--- Later in debate ---

[Baroness Browning]

I am very grateful to the noble Baroness, but a thought has just occurred to me. There is always the danger with salaries, particularly with someone who is elected, that a Dutch auction ensues of who will do it for least. We want to get value for money in setting the salaries, but we want the salary to be fair. With elected positions, there is a danger in how the candidate might canvass the electorate in trying to bid themselves down. That will give an advantage to people with a lot of personal wealth or a lot of money behind their campaign. I think that the Home Secretary, with SSRB recommendations, is a much more stand-apart arrangement and would mean that we would not go down that route.

[Lord Beecham]

Does the noble Baroness’s statement that we should trust the electorate to choose not extend to their capacity to distinguish the cases to which she referred?

[Baroness Browning]

The noble Lord is quite right to chide me. In fact, as I was saying it, I remembered my words to him earlier; they were ringing in the back of my mind. This is not about the electorate; this is about the motivations of the candidate who is not as worthy as we would like to apply for these positions. If the salary has been set by a body such as the SSRB, through the Home Secretary, it is complete and divorced from anything that a candidate might say in seeking to put themselves forward or any questions a candidate may be asked during their selection.