Crime and Courts Bill [HL]
Lord Beecham Excerpts(12 years ago)
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Lord Beecham
“( ) The Code shall not come into effect until it has been laid before Parliament, and debated by both Houses.”
Lord Beecham
My Lords, I cannot claim the prophetic prescience of my biblical near-namesake, so it is entirely fortuitous that the three amendments to which I speak will be debated the day after the announcement of what the media have described as a $1.9 billion, or £1.2 billion, fine imposed by the US authorities on HSBC in relation to charges of money laundering and sanctions busting. I observe in parenthesis that the financial penalty on the company, like those imposed on other banks, is in reality a penalty inflicted on its shareholders and, arguably, its customers. Be that as it may, the relevance of yesterday’s news is that the fine was imposed by way of a deferred prosecution agreement, which embodied other terms, including greater scrutiny of the bank’s affairs—and the involvement of a monitor to be appointed to that effect—and restrictions on bonuses for its top executives.
All three amendments touch on issues that relate to how such matters might be dealt with in the UK once this Bill is enacted. I referred before to the need to carry public opinion with us as we embark on this significant change to the legal system and the way that we deal with corporations whose activities attract breaches of the law and the possibility of substantial proceedings. Amendments 116DA and 116DB facilitate that by requiring a code of practice for prosecutors and any amended code, drawn up, as they will be, by the Director of Public Prosecutions and the director of the Serious Fraud Office, to be laid before Parliament and debated by both Houses. Again I stress that I am not proposing, as I did in Committee, that the code should be subject to the affirmative procedure, merely that it should be debated. I agree with the Minister’s assertion in his letter to me of 7 November that:
“The fundamental principle of prosecutorial independence means that it is appropriate for the code to be issued by the DPP and DSFO rather than it being put on a statutory footing in regulations by a government Minister”.
My concern is that Parliament should be able to contribute to the consultation that the directors have undertaken to conduct rather than that the code should be included after the event in the DPP’s annual report to the Attorney-General. Given the scale of the wrongdoing in the HSBC case and the amount of the financial penalty, this seems to be a sensible way forward, since the public will obviously draw comparisons between what is likely to happen in this country and what happened in America. It reinforces the similar suggestion that I made, but did not press to a vote, in relation to the Sentencing Council’s guidelines on financial penalties. It will be interesting to learn in due course whether the approach adopted under this measure is likely to leave open the possibilities of penalties approaching the scale recorded in the HSBC case. Perhaps the Minister will indicate, without pre-empting the role of the Sentencing Council, what his view is. I do not intend to seek a vote on these amendments, but I hope that the Government will give further consideration to this issue, especially in the light of these recent developments.
The third amendment stems directly from the American experience and legal system. I am indebted to my honourable friend Emily Thornberry, the shadow Attorney-General, for the information that she supplied before and after a recent visit about the practice of the US Justice Department. I spent 35 years briefing counsel, and it has been a unique and pleasant experience to have undergone this role reversal.
Amendment 119A seeks to adopt the practice and wording set out in the United States Attorneys’ Manual. It is a probing amendment. The US law on corporate criminal liability enhances the prospects of successful prosecutions for fraud because corporations are deemed to be vicariously liable for offences committed by their employees during the course of their duties. Here, by contrast, the prosecution must prove that, to quote the legal phrase, the “directing mind and will” of the company was guilty of the offence, and the concept of the directing mind would imply that a board member or senior manager was involved in the illegality.
I assume that the noble Lord, Lord Green, in his former role as chairman and chief executive of HSBC would, of course, have never countenanced, let alone been involved in, the activities that were the subject of the deferred prosecution agreement in America. I assume that the same will be true of other directors of the company and its managers. In this country, a criminal prosecution of the company would have been much more difficult to mount and the incentive to reach a DPA correspondingly reduced if that principle of the directing mind had been applied.
For this reason, Jonathan Fisher QC of Policy Exchange stated in an article in the Times following the publication of the Government’s consultation paper that:
“it is crucial that the proposed legislation provides that a company is vicariously liable for the acts of employees where a prosecutor can show there was fault or dishonesty by the employees concerned. Unless the Government addresses this critical point, the DPA initiative will be a damp squib”.
There is a precedent for making exceptions to the directing mind principle in the analogous field of bribery law. The Bribery Act 2010 establishes strict liability on a company whose employees or associated persons commit an offence in order to obtain business or a commercial advantage for the company. The company can plead by way of a defence that it has adequate systems and controls to prevent the bribery. There are, of course, other examples where companies could be held liable for breaches of statutory duty.
I should perhaps add that the American experience reinforces the view propounded by my noble and learned friend Lord Goldsmith, who is not in his place this afternoon, that the deferred prosecution agreement procedure should apply to individuals, although I would remain reluctant to see such an extension initially, otherwise than in cases where this might facilitate the application of DPAs to cases of economic crime and fraud.
The outcome of the HSBC case throws into stark relief the difference between the US system and what the Bill in its present form envisages, let alone the current state of the law. In particular, of course, there is every incentive in the US system for a corporation to come to terms on a deferred prosecution agreement because there is the ultimate sanction of a criminal prosecution on the basis of vicarious liability if it does not take that course. Since we all wish to see a sufficient incentive to facilitate the introduction of this new system, I hope that that will appeal to Ministers.
It is asking too much of the Minister to come back with a considered response either today or in the very limited time available before Third Reading, but I hope that the Government will take the opportunity to review and, if need be, to consult further on this issue during proceedings in the House of Commons. The proposal would extend beyond the realm of economic fraud but, as has been demonstrated in America, it can contribute to the success of the innovation which the Bill seeks to create. I beg to move.
Lord Beecham
My Lords, I find that slightly disappointing. The Minister did not address the issue of incentivising the DPA process, which is precisely what Amendment 119A would achieve. However, as I indicated, this is a probing amendment. The probe does not seem to have gone in very far, but in the circumstances, I prefer to withdraw both it and the amendment.
Crime and Courts Bill [HL]
Lord Beecham Excerpts(12 years, 6 months ago)
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Lord Beecham
My Lords, as many speakers in this very thoughtful debate have implied—notably my noble friend Lady Smith—for all the Bill’s positive features, it is yet another example of the Government’s recidivist tendency to legislate on the hoof. In this case, it is a demonstrably unshod hoof. From the crass failure that my noble friend identified to provide a framework document for Part 1 of the Bill in relation to the National Crime Agency, to the uncertainty about when we will be informed of the outcome of consultation on the community sentencing provisions and the response to that consultation, let alone details of what the Government plan to include the Bill, to the extraordinarily wide powers to amend any enactment contained in Clause 2(4), which deals with counterterrorism, through to the uncertainties about the financial implications of the establishment of the National Crime Agency, the latter’s relationship—touched on by the noble Lord, Lord Ramsbotham—with the police and crime commissioners, the powers of the NCA director, the recurrent issues of accountability not only of the NCA itself but of immigration officers under Part 3, the implications of the abolition of the police improvement authority, the lack of clarity over details of the opposed new offence of drug-driving, which all of us would welcome in principle, and the reliance yet again on regulations as yet unseen instead of primary legislation, the Bill falls lamentably below the standards that your Lordships’ House and the British people are entitled to expect, especially given its importance in relation to our system of justice.
It is as well, then, that the Bill starts and will finish in your Lordships’ House where, thanks to the presence of so many former senior members of the judiciary, experienced legal practitioners at the highest level—among whom I am not included—and many other Members with a passionate concern for liberty, accountability and due process, it can expect to receive more, and more effective, scrutiny than the whipped procedures of the House of Commons all too frequently allow. I have some sympathy with the noble Lord, Lord Henley. Continuing our Dickensian dialogue—perhaps I should say “monologue”—I rather see him today in the role of Sergeant Buzfuz, briefed not by the plaintiff on a breach of promise action against Mr Pickwick but by the Home Office and the Ministry of Justice, today’s combined equivalent of the Circumlocution Office. We may, however, return to the question of breach of promise—breach of electoral promise—when we come in due course to the Justice and Security Bill.
I now address those issues in the Bill which fall primarily within the responsibilities of the Ministry of Justice. In relation to creating a single county court, my considerable concern is the venue. For most purposes, as we have just heard, this is at present based on one or both parties having a connection with the geographical area of the county court in which proceedings commence. I hope that the Minister can assure us that this will remain the case and, if it is, how that can be secured. To pick up the point raised by the noble Lord, Lord Elystan-Morgan, will he also assure us that we will not see a further rash of closures of county court facilities for the reasons that he gave? No doubt corporate clients would find it very convenient to choose the venue at the expense of the interests of individual claimants.
In passing, it is worth noting that the ministerial statement heralding this change also announced increases in the small-claim limits in the county court below which it is impossible for a successful litigant to obtain his costs: first to £10,000, then to £15,000. This is not in the Bill but it is connected to the question of access to justice and it would be a grave blow to claimants and a boon, no doubt, to the insurance industry, which of course is such a generous donor to the Conservative Party.
On family courts, the Bill carries forward the generally well received recommendations of the Norgrove report. I have one particular concern because the Bill is not clear on this: will a single lay magistrate, who counts as a judge in the Family Court under Schedule 10’s insertion of new Section 31Y in the Matrimonial Proceedings Act, be empowered to determine contested cases? That would perhaps be less than desirable. I raised the matter in discussion with the Bill team and I do not know whether the Minister has yet ascertained whether that would be the case.
Mentioning the magistracy brings me to a slightly different point, one hinted at by the noble Lord, Lord Elystan-Morgan. Last night I was in discussion with the lord-lieutenant in my area, who expressed considerable concern on his part and, as he put it, on behalf of his brother lords-lieutenant, about the position within the magistrates’ court system, where the feeling is that lay magistrates are increasingly being displaced by full-time paid district judges. I confess that I have not appeared in a magistrates’ court for nearly 20 years, and the role of the justices’ clerks—as they used to be called; I am not sure that the appellation is still relevant—seems to have changed. Apparently the clerks are no longer responsible to magistrates’ courts’ committees but, increasingly, seem to be responsible upwards, to the Ministry of Justice. As the magistracy becomes more professionalised, I suppose that that is likely to be increased. There is a concern, which was raised in the debate on the Queen’s Speech by a Member opposite, that local justice might be somewhat imperilled.
In relation to judicial appointments, generally we welcome the steps to promote equality and diversity. It is worth proceeding with the concept of part-time appointments in the higher courts, recognising that there may be a risk, as some of your Lordships have indicated, and practical difficulties. It is not necessary to assume that if things turn out to be less effective than envisaged we are stuck with the system indefinitely. I suggest that it would be a matter to be kept under review, and that could be provided for in the legislation in the first place. However, we are so far behind in promoting equality and diversity that it seems worth while at least to attempt to see whether that particular provision could improve the position.
It was interesting to hear a number of Members of your Lordships’ House—my noble friend Lady Jay, the noble Baronesses, Lady Neuberger and Lady Prashar, and the noble and learned Lord, Lord Woolf—all expressing concerns about the desirability of the Lord Chancellor having a vote in the selection of the president and deputy president of the Supreme Court. I share those concerns. Proceeding in that way may seem questionable, as we may be thought to be bringing the Executive too close to postholders who ultimately may have to sit in judgment on the Executive. I do not mean just the Lord Chancellor as an individual; I mean the Government of whom the Lord Chancellor is obviously a member. It is also not clear to me whether the powers of the Lord Chancellor to prescribe regulations about appointments in consultation with the Lord Chief Justice and others is or should be absolute or whether there is to be any parliamentary scrutiny—not of the appointments but of the regulations that will govern those appointments.
On Clause 22 and the question of filming or recording proceedings, we welcome the proposals for Court of Appeal hearings and remarks on sentencing in Crown Courts to be broadcast, subject always to the decision of the trial judge. I think that there would be a concern, which I would certainly share, if it were envisaged that those two categories should be expanded and other areas of the court’s activity made subject to broadcasting. I endorse Liberty’s suggestion that these two proposals should be embodied in the Bill—possibly with a sunset clause to allow the position to be evaluated after a period—and that in any event any extension of categories should be subject to primary legislation and not implemented through regulation.
On Clause 23, which deals with community sentences, simply giving the Secretary of State the power to make regulations for or in connection with non-custodial sentences is unacceptable, particularly in the light of the paucity of information currently available and the length of time before it will become available, to which I and others have referred. Moreover, there is a question about how the whole clause stands with last week’s White Paper on anti-social behaviour, which we have not yet had an opportunity to debate. That whole set of proposals needs to be thoroughly debated and we need to know exactly what the Government have in mind before we can make a judgment about it.
On the provisions relating to immigration under Part 3, my noble friend Lady Smith indicated a number of concerns that, again, I share. The first relates to the abolition of the right of appeal against refusal of entry clearance to the UK under Clause 24, which undoes the Labour Government’s changes in relation to family visit visas. As Liberty points out, this would create great difficulties in relation to, for example, important family events, weddings or funerals or for visiting the sick. My noble friend Lord Judd quite rightly raised the apparent bypassing of family values on the question of family visit visas.
There is also a potential problem in relation to Clause 25 concerning appeals against a decision to vary a person’s leave to enter or remain in the UK when he or she is outside the jurisdiction when the decision is made. That could make it extremely difficult for the right to be exercised.
Under Clause 26 and Schedule 14, we have the conferment on immigration officers of very wide powers without an evident framework for accountability such as, as in the case of the police, the Independent Police Complaints Commission. Moreover, paragraph 380 of the Explanatory Notes indicates that the clause confers on the border agency’s chief operating officer the power,
“to authorise applications from immigration officers for the purpose of investigating organised immigration crime”,
without defining the latter term. What is “organised immigration crime”? We need to be clear about that. In any event, the powers conferred by Clause 26 do not seem to be limited to those purposes. Again, we have wide-ranging powers without any real boundaries or constraints.
Clause 27 deals with drugs and driving, on which the noble Baroness, Lady Meacher, spoke with such effect during the debate on the Queen’s Speech. Like others, I look forward to hearing from her again in Committee. The Government must address the concerns that she expressed and that have been expressed by Liberty, the British Medical Association and, as we have heard tonight, other noble Lords about the practical implications of a widely drawn offence. It must surely be confined to substances that are likely to affect driving ability and which the user knows, or ought to know, are likely to have such an effect and, as we have heard, can be measured.
Other matters may be raised in the course of the Bill’s progress, and one that may make an appearance is metal theft. That was debated at some length in the very late hours during the passage of the legal aid Act, as some noble Lords will recall, and the Government indicated that measures would be brought forward. I would have thought that the Bill would have provided an opportunity to deal with this matter of considerable concern that affects public safety as well as having considerable financial implications. We may take the opportunity of tabling an amendment to that end.
The Opposition look forward to working with the Government and Members from all parts of the House to improve a Bill that, in some areas, introduces welcome reforms but in others threatens to undermine, to some extent, parliamentary and public accountability and infringe civil liberties. It will be for your Lordships’ House to improve the Bill and send it to the House of Commons in a form that we can only hope will represent an improvement and which will allow us to achieve a consensus on those matters on which, broadly speaking, we share a civilised view but that the Bill does not quite match in the reach of its provisions.
Queen’s Speech
Lord Beecham Excerpts(12 years, 7 months ago)
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Lord Beecham
My Lords, I begin by joining the noble Lord, Lord McNally, in his tribute to my noble friend Lord Bach, who has given 14 years of most distinguished service on both the government and opposition Front Benches. It was a particular pleasure for me to work with him on the Legal Aid Bill—about the only aspect of that which gave me pleasure. Your Lordships will recall the famous declaration of the noble Baroness, Lady Thatcher, that, “Every Prime Minister needs a Willie”—so does the Labour Front Bench. We will miss him enormously. I also pay tribute to my noble friend Lady Thornton, who has done a remarkable job, both in government and in opposition, particularly over the many months during which the Health and Social Care Bill was debated in your Lordships’ House.
Today we have at last moved on from the seemingly interminable debate about Lords reform which has so gripped the popular imagination. However, the Queen’s Speech—though, as ever, gracious—might be thought to suffer by comparison with “The King’s Speech” in terms of both its content and dramatic impact. True, there is at least one feature in common: the leitmotif of “The King’s Speech” is a monarch with a stutter; the background to the Queen’s Speech is a Government in charge of a stuttering economy. The difference is that the King took steps to deal with his problem. The Queen’s Speech betrays little evidence of a Government with the will or capability of doing likewise.
In a recent debate, I briefly entertained the noble Lord, Lord Henley, with a reference to Dickens. As it is Dickens’s bicentenary year, I will draw on him again for it seems to me that this Government increasingly resemble the theatrical troupe in “Nicholas Nickleby”, with the Prime Minister as Vincent Crummles and the Chancellor as the “Infant Phenomenon”.
It is as instructive to consider what is not in the Government’s programme as it is to ponder what is. As several of my noble friends and indeed other noble Lords have pointed out, there is nothing on social care beyond a limited draft Bill. There is nothing likely to make a significant difference to the economy and job creation. The noble Lord, Lord Grade, is wrong if he believes that we are more heavily regulated than our competitors. In the light of his rather reactionary views about these matters, he might consider adding the prefix “retro-” to his surname.
Those are not the only areas in which the Queen’s Speech is lacking. There is nothing to tackle the growing housing problem, forced marriage or media ownership, despite the urgings of the noble Lord, Lord Fowler. The cry there is, “Wait for Leveson”, although his inquiry’s brief does not run that far. I suspect that we might as well be waiting for Godot, and the same goes for legislation on lobbying, much talked about but by no means visible.
What chiefly characterises the Government’s programme, legislative and otherwise, is its underlying ideology, resting as it does on an aversion to public services and an almost unquestioning espousal of the merits of the market, privatisation and, increasingly, payment by results—although I hope for the sake of Ministers that that rule will not apply to them.
Alongside these dogmas, we see also the fragmentation of local government and local accountability, with councils and, for that matter, parents being completely sidelined in education and accountability being directed upwards to the Secretary of State. Talk of freeing schools from council control is specious: it is many years since councils controlled schools. What we are seeing, to the growing dismay of the teaching profession and others, is an unseemly, competitive scramble rather than the co-operation of the whole education service in the interests of the whole community.
Similarly in policing, as my noble friend Lord Mackenzie reminded us, November will witness, at a cost of £70 million, the election of 41 police commissioners controlling 11% of council tax in England but at a remove from local authorities. Turnout in the recent local elections was disappointingly low. How many people will turn out in a cold and damp November to vote for this new and unsought-for position? I note in passing that there will apparently be no turnout of Liberal Democrat candidates, as they profess now to oppose the creation of the posts for which they voted when the legislation was passed.
In the matter of voter participation, how will the Government ensure that, under their electoral registration Bill, the fears of the Electoral Commission about a significant drop in registration are not realised? This is especially important given the pending boundary review and the frequency of future reviews.
Let us at least, however, celebrate the inclusion in the gracious Speech of the worthy Groceries Code Adjudicator Bill, which will be for ever more the talk of Tesco.
In the realm of crime and justice, there are five Bills. Reform of the law of defamation is welcome, as many of your Lordships have commented today, especially since it will bring, one hopes, an end to libel tourism. We need to ensure that access to redress is available to victims of limited means, and we will want to examine what is meant by “serious harm” to reputation, not so much for companies and corporate bodies as for individuals who may feel that they have been defamed. Similarly, moves to reduce reoffending and encourage effective community sentences will also receive our support, though we will wish to ensure that the punitive aspects do not outweigh the constructive.
However, just as the Labour Government might legitimately be held to have laid greater stress on being tough on crime than on the causes of crime, so the Crime and Courts Bill should not stand alone. What is needed is a recognition that early intervention and the involvement of many agencies of government, local and national, will be required if the indicators and predictors of offending, ranging from poor literacy and numeracy skills to early parenthood, unemployment and the high prevalence of mental health problems and personality disorders, are not to continue damaging lives and communities. This requires the kind of whole-system approach advocated by the noble Lord, Lord Smith of Leigh, in relation to health and social care. In addition, it is time to address the problems implicit in the disproportionate number of defendants from black and minority ethnic communities being denied bail or sentenced to imprisonment compared to other defendants tried for comparable offences and with comparable backgrounds.
We will also support proposals—although one listened with care to the noble Baroness, Lady Meacher—to make it an offence to drive under the influence of drugs. That seems a very sensible measure, although what she said today will need to be very carefully considered.
The justice and security Bill raises serious issues and will need careful scrutiny. The notion of secret trials or inquests, referred to by the noble Baroness, Lady Berridge, or of evidence given without the possibility of rebuttal, would be a major departure from our traditions, not lightly to be undertaken. In the words of the noble and learned Lord, Lord Kerr, in the Supreme Court, to be truly valuable,
“evidence must be capable of withstanding challenge. I go further. Evidence which has been insulated from challenge may positively mislead”.
While the protection of the public is paramount, it is necessary to maintain and, where appropriate, reinforce judicial and independent scrutiny of the security and intelligence services so that the rights of the individual are not impaired without the most thorough scrutiny and the most cogent reasons.
In relation to closed-material procedures, the Government's proposals go further than in any other country surveyed in their Justice and Security Green Paper, including the USA. We understand that part of the rationale for the Government’s proposals lies in fears that the US may be less disposed to share intelligence information without them. The recent experience of the US over the underpants bomber and the dissemination of information—which undoubtedly they wish had not been disclosed, though it had nothing to do with this country—makes that claim worthy of the most careful exploration.
I endorse and welcome the concerns expressed by the noble Lord, Lord Thomas of Gresford, on these matters. I echo his doubts about the proposed national crime agency and there being single court systems. I also agree with the noble Baroness, Lady Seccombe, on the difficulties that may be occasioned in the perception of local justice with the closure of magistrates’ courts. I share her reservations about single lay magistrates sitting and taking decisions.
As ever, the Opposition will do their duty in scrutinising this and other legislation, improving it where possible and opposing it where necessary under the rubric which I have voiced before and make no apology for repeating: “Justice, justice shalt thou pursue”. Of course, we will hold the Government to account for their sins of omission, too. We invite other Members to join us in so doing.
Trusts (Capital and Income) Bill [HL]
Lord Beecham Excerpts(12 years, 8 months ago)
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Lord Beecham
My Lords, I join other noble Lords in congratulating the Minister on the clarity of his exposition of this intrinsically complex area, and in congratulating the Law Commission on producing the report. As the Minister reminded us, the process began eight years ago, so it has not quite reached the proportions of Jarndyce v Jarndyce. The commission has certainly done a thorough job.
My acquaintance with the rules of apportionment began with my law degree and effectively ended with the solicitor’s final examinations to which the noble Lord, Lord Phillips, referred, save that I learnt to take the precaution of ensuring that the rules were excluded from any will I subsequently drafted. Of course, that will now no longer be necessary. It will be a case of opting in rather than opting out, for which the commission and the Government should certainly take credit.
This afternoon I find myself visited by a slight sense of déjà vu. Many years ago I found myself acting in a divorce case and waiting for my case to be called on behalf of my petitioning client. I sat next to the counsel in the preceding case, a delightful if somewhat eccentric individual. For the avoidance of doubt, it was not the Minister on that occasion. At one point counsel turned to me and said, “Mr Beecham, where is the petition?”. I had to reply, “I am not instructing you”, to which he replied, “I know, I know, but where is the petition?”. Around three weeks ago, my noble friend Lord Bach said to me, “You are to be in charge of this Bill”. It was a visitation that was quite unlooked for. Nevertheless, I am here today to represent the Opposition on this matter and to welcome the simplification that the Bill embodies, in relation to both the rules of apportionment and, in particular, the position in respect of charities and the question of total return. I declare an interest as a trustee of the Trusthouse Charitable Foundation, which already operates a total return policy.
The noble Lord, Lord Phillips, referred to the Law Society briefing, for which I am very grateful. The Law Society is a body to which President Kennedy’s memorable injunction is often thought by solicitors to apply: “Ask not what the Law Society can do for you, but what you can do for the Law Society”. On this occasion, the Law Society has done us all a service in a briefing that contains the recommendations that the noble Lord, Lord Phillips, referred to in respect of Clause 3, where it suggests a new subsection and some clarification. I hope that can be shared with the Minister following this Second Reading, if he has not yet seen those proposals. They seem to make sense in exactly the way that the noble Lord, Lord Phillips described.
Other of your Lordships have made points particularly in relation to the position of charities and, in the case of the noble Lord, Lord Hodgson, in respect of cathedrals. Those matters seem to be worth pursuing. I had the same question in my mind as the noble Lord, Lord Higgins, about whether it is necessary to include a reference to existing trusts in the Bill. That is a matter that I am not qualified to make a judgment about, but it might usefully be considered, because if it is not currently possible for existing trusts to modify the rules then it would seem that they ought to be given that opportunity. They would not have to take it but it might be relevant. That is perhaps, again, a matter that we could return to in Committee.
In principle, and so far as the thrust of this short Bill is concerned, we are completely at one with the Government and look forward to concluding this matter rapidly for the benefit of trustees, beneficiaries and charities.
Lord Phillips of Sudbury
My Lords, I should have declared an interest earlier, which I need to do now. I am the founder of, and am still a consultant to, a firm of charity lawyers, Bates Wells & Braithwaite. I should have said that and apologise for not so doing. I will not enumerate the charities of which I am a trustee.
Public Bodies (Abolition of Courts Boards) Order 2012
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The Minister of State, Home Office (Lord Henley)
My Lords, the purpose of this order is to abolish 19 courts boards across England and Wales. The order provides for abolition with no transfer of functions. Before addressing the order I will give some background on courts boards and their proposed abolition.
In 2010, the Government announced a review of all public bodies which aimed to increase transparency and accountability, cut out duplicated activity and discontinue unnecessary activities. In conducting reviews, departments were asked, first, to address the question of whether a body needed to exist at all. In the case of courts boards, the Ministry of Justice considered that the answer was no. This view reflected that of the previous Administration, who announced in March 2010 their intention to close courts boards. The abolition of courts boards was therefore listed in the Public Bodies Bill which received Royal Assent in December 2011.
Courts boards were established in 2003 with a remit relating to the Crown Court, county courts and magistrates’ courts. They do not manage or administer the courts themselves but advise HM Courts and Tribunals Service to improve its service. Courts boards were established partly because there was a fear that magistrates’ voices would be lost within a unified courts system. However, their role has diminished in recent years as other structures are now in place to ensure magistrates’ views are heard. Locally, there are strong relationships with magistrates’ Bench chairs and, nationally, views are represented by the Magistrates’ Association and the National Bench Chairmen’s Forum.
Another function of courts boards is to ensure that the voices of local community court users are heard. However, amalgamations within HM Courts and Tribunals Service areas have reduced courts boards areas from 42 to 19 in recent years, diminishing their ability to represent the whole community. While the Ministry of Justice fully recognises the need to respond to local needs, the Committee should recognise that it is not trying to recreate a like-for-like structure in place of what it is abolishing. One reason for reforming public bodies is to make necessary savings, and this could not be achieved by simply filling the gap with something similar, especially where functions are duplicated. Abolishing courts boards will save the public purse approximately £450,000 per year. Given their reduced role over recent years, retention cannot be justified in the current financial climate.
The proposal to abolish courts boards was included in a public consultation published in October 2011. Of the 23 responses received, seven were in favour of abolition, three were neutral and 13 were against. Arguments against abolition focused on concerns around the loss of a body to oversee Her Majesty’s Courts and Tribunal Service’s performance from a local perspective. As I will discuss, there are other ways in which these local voices can be heard. Those in favour of abolition agreed with the Government’s view that HMCTS is capable of addressing the gaps left by abolition. The department found no compelling argument within this consultation to change its proposal.
The order was laid on 31 January. Orders under the Public Bodies Act have a minimum 40-day scrutiny period, with a committee of either House able to extend this to 60 days by resolution if it feels it necessary. This order been scrutinised by several Select Committees within Parliament: in this House, the Merits of Statutory Instruments Committee; in the other place, the Justice Select Committee; and, collectively, the Joint Committee on Statutory Instruments. None of these triggered the optional 60-day extended scrutiny period.
The Merits of Statutory Instruments Committee reported on this order on 16 February, having requested supplementary information. The committee specifically asked the Minister to address several questions during the debate. On his behalf, I will now take these point by point. First, the report asked that the other avenues that could perform the same functions as courts boards should be more fully articulated, in order to support the assertion that courts boards’ functions are being duplicated. Courts board representatives can have their views heard through structures such as justice issue groups, area judicial fora, local criminal justice boards, victims and witnesses subgroups, and court user groups.
There are also strong local relationships between HMCTS and local magistrates’ Bench chairmen. Additionally to these groups, Section 21 of the of the Courts Act 2003 requires the Lord Chancellor to ascertain the views of magistrates on matters of relevance to them. This will of course continue after courts boards have been abolished. As for engagement with members of the public, courts already use a variety of methods to engage with their local communities, such as open days, open justice week, representation at local community meetings, customer satisfaction surveys and mock trials. These methods provide more direct engagement with local communities than courts boards do. Members of the community may also air their views through direct communication with their courts, writing to the relevant Ministers via their MPs or by responding to consultations.
I turn to the second point that the report requests be addressed specifically, that of giving reassurances about what provision will remain to monitor and influence how court services are tailored to the needs of the local areas. The Ministry of Justice remains committed to preserving the links between courts and local communities. Under the new agency framework, HMCTS regions will be encouraged to explore local options suitable to them, such as making more effective use of court user meetings, to engage the wider community in improving service delivery. This idea is already being developed in one HMCTS area and initial best practice has been circulated to other areas.
Furthermore, delivery directors and jurisdictional leads are working with the judiciary, stakeholders and other agencies to deliver a joined-up justice system that is responsive to the communities it serves. Further plans are being developed that will promote more direct engagement with communities. Neighbourhood justice panels are just one example of this. These panels will, through community volunteers, involve communities in finding restorative and reparative solutions to anti-social behaviour and low-level crime.
The department is also committed to increasing the transparency of the justice system in order to encourage better engagement with the public and enable citizens to hold services to account. This will, among other measures, allow for the release of various data with contextual information to promote public understanding of the justice system. This has already begun. For instance, earlier this year, the department published timeliness data for courts on the open justice system website, allowing users to see how their local court is performing.
The Ministry of Justice has taken on board the views of the Merits Committee and would like to thank it for its thorough reporting. Courts boards are an advisory non-departmental public body whose role has greatly diminished in recent years. Their functions can now be carried out in other ways. The Ministry of Justice remains committed to improving courts’ and tribunals’ performance and to listening to the local community. The department will continue to do this in the future, through the other means I have laid out today.
However, in the current financial climate, it is right that duplicated functions across government should be removed. As I said earlier, abolishing these boards will save around £450,000 per year. I therefore commend this order to the Committee and beg to move.
Lord Beecham
My Lords, again I thank the Minister and congratulate him on his very clear exposition of this order. I indicate at the outset that, as in the House of Commons, the Opposition do not in any sense oppose the proposals.
However, although the Minister has rightly referred to issues raised by the Merits Committee, it should be noted that, as well as raising individual issues, the committee expressed some concerns about how the whole process had taken place. In particular, in relation to the explanatory document, paragraph 13 of the Merits Committee report points out that both the Magistrates’ Association and the Law Society thought that the current system was better than nothing. The Government have made a judgment on that and I do not necessarily quibble with it. The Merits Committee came to this conclusion:
“On balance the low number of consultation responses would seem to support the Government’s view, that Courts Boards are not operating particularly effectively”.
However, it also pointed out that while the,
“Explanatory Document suggests that other existing avenues may perform the same function better”,
that would need to be articulated “more fully in debate”. Up to a point that has happened in another place and here today, but it did not happen unprompted. Similarly, on the impact assessment, the committee pointed out that,
“in order to demonstrate compliance with the statutory tests”—
departments—
“should, as a minimum, include in the ED a clear statement of the factors that have been included in their calculation of net savings”.
They have subsequently done that and, again, there is no issue over that. However, as the Merits Committee indicated, it would be better to have had that in place in the first instance.
The committee made a point about the reassurances over provision to monitor and influence how court services are tailored. Its conclusion was a modest rebuke to the Government, which said:
“In our consideration of future draft Public Bodies Orders, we will expect the Government to present a properly argued case that the tests in the 2011 Act have been satisfied, supported by objective evidence”.
I am sure that the Minister will wish to ensure that that is carried through in the event of any further orders coming from his department. I hope that the Government as a whole will take that point.
One or two issues remain outstanding, which relate partly to the answers that were given by the Minister, Mr Djanogly, in Monday’s debate in the House of Commons and those given by the noble Lord today. These refer to the other structures that are in place, such as justices’ issues groups and the Magistrates’ Association. As the Minister said on Monday, there are other bodies, which mean that,
“court users … can have their views heard through structures such as justices’ issues groups, area judicial forums, local criminal justice boards, victims and witnesses sub-groups, and court user groups”.—[Official Report, Commons, Delegated Legislation Committee, 23/4/12; col. 4.]
That raises the question of the number of bodies that might be involved and suggests rather a more fragmented approach to looking at the issues that arise in an individual area. It is striking that there is no mention of local authorities among those groups. I invite the Minister to consider whether it would be appropriate to encourage HMCTS to promote the involvement of local authorities, which are important partners in community safety and can make a significant contribution to dealing with the problems of crime and disorder, which manifest themselves locally and end up in the courts.
Useful experiments are taking place in different parts of the country in relation to some of these matters. For example, I am currently chairing a scrutiny panel in my own authority dealing with the mental health of offenders. In the course of that we have discovered that there are experiments about providing professionals at court who can assist those who might have mental health problems at a very early stage in proceedings. It is also something that the young offender teams are involved in, closely linked to the local authority services.
The point is that it will not be sufficient simply to have different groups of people relating to the HMCTS.
Lord Haskel
I am sorry to interrupt the noble Lord, but a Division has been called and so the Committee stands adjourned for 10 minutes.
Lord Beecham
My Lords, I shall resume my suspended sentence—which is not an inappropriate term in the circumstances. I invite the Minister to explore a couple of aspects, in particular in relation to the role of local government.
First, it would be interesting to know whether the experiment that the noble Lord has referred to includes the relevant local authority, or authorities, in that area; and secondly, whether he would encourage the system to co-operate with any local authority scrutiny committee, because it would of course be open to a local authority to scrutinise what is happening in this area. Also, in relation to monitoring and reporting on what is happening—which can be done locally, and the local authority scrutiny committee may be a suitable vehicle for that—there is the question about whether the department itself would collate information, so that what is happening and what improvements might be made to the system can be seen nationally, rather than simply leaving it at the local level. That was the thrust of the implicit suggestion of the Merits Committee when it inquired as to that.
Finally, I note that some £450,000 will be saved by this process. It is not an inconsiderable amount of money but has to be seen in the light of the £1 billion shortfall in the anticipated savings from the abolition of public bodies of one kind or another. It will be interesting to see how much more is to come in various other regulations or orders that we will no doubt be considering. Not just in the context of this department, but generally, there seems to be a long way to go to meet the Government’s target of £2 billion of savings. However, as I said at the outset, we will not oppose the order and trust that, in the developing system, there will be an adequate exchange of information. There might for example be peer review and, in particular, there should be an annual report by the department or the agency on the progress that is being made.
Lord Henley
My Lords, I thank the noble Lord for those comments and will deal with some of the points he has raised. Starting at the very end, when he talked about the savings that are necessary, he is right—£450,000 is a relatively small amount in the great scheme of things and we will continue to have to look across all departments and the whole of government for further savings to try to get the deficit down and, ultimately, to start reducing the debt that we inherited. The noble Lord knows that full well, and all parts of the Government will continue to do that. However, at this stage, discussing this particular order, he would not expect me to go any further.
I am grateful that he made clear that the Opposition do not oppose these proposals. It would be very odd if they did since they intended to do exactly this and announced it in the Budget in 2010. He then went on to talk about the various concerns that the Merits Committee had had and alleged that it had issued us with a modest rebuke. I appreciate that it was a modest rebuke, which we will take on the chin, but it could have given us a much more severe rebuke—it was open to it to insist on a 60-day period rather than a 40-day period. It is open to the Merits Committee to do even more than that. It is a very effective committee and one that we all, quite rightly, live in fear of and whose considerations we take very carefully. That is why I can give an assurance on behalf of the department that future Explanatory Memorandums will be clearer, with the financial impact fully laid out and the assessment against the various tests fully spelt out. We will make sure that that is the case. There are four further orders due from the MoJ in due course and we will try to make sure that we comply with the wishes of the Merits Committee.
The noble Lord then raised questions about my opening remarks and those of my colleague, Mr Djanogly, in another place, suggesting a fragmented approach and asking about bringing local authorities into consultation on these matters. As an old local authority hand—one with more experience than many people in this area—he is right to talk about local authorities, and we shall certainly look at how we can work with them and involve them. He suggested making use of their scrutiny committees and there are various ways in which we can look at that. Courts and the wider criminal justice system certainly try to work hard and liaise with local authorities and local authority groups, and they will look at how they can improve that in due course.
The noble Lord asked whether we will publish data nationally. Under the transparency agenda we are publishing data on a national basis in relation to the courts programme so that the public can see local and national performance directly. If the noble Lord would like further details about that and how to access it, I am more than happy to write to him in due course.
I hope that has dealt with the noble Lord’s points. If it has, I beg to move.
Children: Secure Children’s Homes
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Lord Beecham
My Lords, I declare an interest, which the Minister may think singularly inappropriate—I am a member of the Out of Trouble advisory group of the Prison Reform Trust—and I congratulate the noble Baroness, Lady Linklater, on introducing the debate.
The background to the debate is that in this country we criminalise children at much too young an age, much younger than in most other jurisdictions. We lock them up five times more on average than similar societies do. For example, to compare ourselves with Finland, we have 2,000 youngsters under 18 in custody, whereas Finland, with one-tenth of our population, has precisely six. Finland has 4,000 adolescent treatment centre places, whereas this country, with 10 times the population, has a mere 1,100. There is also the significant cost, to which the noble Baroness has referred; it costs £51,000 a year to keep a child in a young offender institution and £165,000 in a secure training centre. Of course, we now have cuts of 20 per cent in the YOTs budget—23 per cent, actually, in London—at a time when, as we have heard in the past couple of weeks, reoffending rates in 70 per cent of youth offending team areas are beginning to rise.
The noble Baroness has referred to the background of many of these youngsters. Three times as many suffer from mental health problems as in the general population and 25 per cent of them have special needs, while 23 per cent of them have IQs of less than 70 and 36 per cent have between 70 and 79. That is nearly 60 per cent with IQs of under 80, and 60 per cent have poor communication skills. All too often, they are in custody because of breach of an order, such as an ASBO, and not necessarily for serious offences. In cases of non-violent, less serious offences resulting in custody, about 61 per cent arise from a breach of an order.
The Prison Reform Trust recently published a document on this whole process, pointing out that far too often it is the breach of an order that leads to custodial sentences, and it made eight significant recommendations for improving that situation, including topics that one might have thought would be useful across the whole of the system: involving children in decisions taken about them; improving the quality of intervention in the community; and identifying and meeting welfare needs leading to offences in the first place, dealing with the problem before it translates into a criminal offence. That involves not just the criminal justice system. Clearly it goes much beyond that and involves the health system, children’s services and, arguably, the whole issue of family responsibilities. This issue certainly needs to be progressed.
Other factors also cause concern. In the population of young people in custody, a disproportionate number of children are from black and minority ethnic backgrounds, particularly in remand. They seem to have a significantly higher propensity to be remanded in custody than other children. The position of black and minority ethnic girls receiving custodial sentences is also distinctly out of line with either their male counterparts from those communities or with the non-BME population. If those issues are to be tackled, we need to get to the children well before the problems manifest themselves. In the mean time, we must also look at non-custodial ways in which to deal with these children, including justice reinvestment. Involving young people in community payback and giving them a skill while they are doing that has proved to be effective in reducing reoffending rates. Contrary to the public myth peddled by some of the tabloid press, there is a willingness on the part of the public to accept that custody is not necessarily the best solution and that properly constructed schemes involving young people in community activities and the like can be very effective.
I end by quoting the following passage:
“Just threatening to lock young people up will not break the cycle. Of course criminals need to face penalties for their actions but we desperately need to deal with the reasons why they are committing crime in the first place. Otherwise we move from being ‘tough on crime, tough on the causes of crime’ to being ‘tough on headlines, soft on the causes of the headline’”.
That is a quote from the report from the Centre for Social Justice, produced by Iain Duncan Smith’s working party.
Police Reform and Social Responsibility Bill
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Lord Beecham
My Lords, it is a pleasure to follow my noble friend Lady Henig who, along with my noble friend Lord Harris, are astounding examples of the work, service and commitment of non-directly elected former chairs of a police authority. They are not the only such members in this House, of course; the noble Baroness, Lady Harris, also held such a position. They illustrate very vividly the capacity of elected councillors to serve in that role.
In his thoughtful and reasoned speech, the noble Lord, Lord Condon, referred—as others have done—to recent events, effectively confirming the wisdom of avoiding the intrusion of politics into policing. We saw some of those dangers when the Prime Minister and the Home Secretary claimed to have instructed the police to increase the number of police on the streets. In fairness, those claims were subsequently withdrawn, but they illustrate starkly the risk of political interference. The Prime Minister and the Home Secretary did not cross the boundary but who is to say that less experienced, less statesmanlike figures would not succumb to the temptation? It is a very real risk.
In the debate in the other place two days ago, the Police Minister, Nick Herbert, said:
“The coalition agreement pledged the introduction of directly elected individuals, subject to strict checks and balances, by locally elected representatives”.
In opening, the Minister made exactly the same comment. However, the reality is that those checks and balances are insufficient. What is surprising is that the Minister in the other place went on to claim:
“The Lords amendments do not try to increase the local accountability of the police. They do not even try to ensure that there are adequate checks and balances”.—[Official Report, Commons, 12/9/11; col. 780.]
Only the word “effrontery” can describe that statement. If the checks and balances are not sufficiently strict, it is because the Government ensured in your Lordships’ House that they were not put in place. They were moved from various parts of the House and they were rejected.
The proposals for police commissioners owe much to the partial—although no doubt not the only—begetter of the Bill, the noble Lord, Lord Wasserman, who in these matters is a sort of ermine-clad Mephistopheles to the Prime Minister’s Faustus. He is an enthusiast for American-style policing, of which he has experience. I defer to his knowledge of it. He is also an enthusiast for Bill Bratton. Indeed, if the noble Lord had his way, I hazard that we would have congratulated Mr Bratton on his appointment as Commissioner of the Metropolitan Police today, instead of the gentleman whose appointment we have commented on and to whom we all send our congratulations. However, as has been pointed out by my noble friend Lord Hunt, Mr Bratton is vehemently opposed to the concept of directly elected police commissioners. The Prime Minister’s chosen adviser on policing, brought from across the Atlantic at no doubt considerable expense, is to be listened to in all respects save this rather crucial one—the direct election of police commissioners.
I support the Motion tabled by the noble Lord, Lord Condon. I bear in mind the observations of the Electoral Commission, which have not yet been mentioned. It has reported that it has concerns about the date of 15 November. It refers to problems with the registration of voters, which will be taking place at that time. It refers to the seasonal issues—the short period of daylight and its impact on turnout—and to cost. They are very strong arguments. The Minister says that an election in November will allow the new commissioner time to get involved in the budget. My noble friend Lord Harris has demolished that argument comprehensively. However, if the election takes place in November, there are other people who will be involved in the consideration of the budget. They will be—with whatever limitations, which will be substantial—the police and crime panel. Its members will presumably not be in place by November 2012. Therefore, there will be much less opportunity for the panel to perform the kind of scrutiny, limited as it is, that the Bill prescribes and for which the Government take credit.
However, if those appointments were to take place in May, of any year, both the commissioner and the panel would have an opportunity to be fully involved from an early stage in the process. It should be borne in mind that commissioners will come into an entirely new field, unless they have been involved as members of a police authority. Who is to say whether that will happen? They will have only a matter of weeks to absorb all that complexity and difficulty before passing a budget. They will surely not be capable of producing a police and crime plan, which you would have thought would shape and provide context for such a budget, in that time. It seems quite impossible.
Noting the reactions of the colleagues of the noble Baroness, Lady Harris, in another place, I am irresistibly reminded of the Grand Old Duke of York, who marched his army to the top of the hill, only for them to be led down—in this case on the basis of an offer of only six months’ deferment of the election. The noble Baroness is of course a resident of the great county of Yorkshire. I hope she will not find herself in the position of—forgive me—a grand old duchess of York, leading her troops to the top of a hill, only to find herself abandoned by the self-same troops as they slide silently downhill. I fear from the speech of the noble Baroness, Lady Hamwee, that that may indeed be her fate, which would be unfortunate.
The noble Baroness, Lady Hamwee, also referred to independent members. The Bill provides for very little in the way of independent members of the police and crime panels—many fewer than currently serve on police committees. Therefore, the independence argument hardly persuades one.
The amendments tabled by the noble Lord, Lord Condon, are sensible and practical. They ought not to be voted down on the basis of a rather cheap deal whereby Liberal Democrats are bought off with, as I say, a temporary deferment of elections as part of an arrangement in another place. My noble friend Lord Hunt’s proposal for a commission clearly makes sense. The very powerful arguments advanced by the noble Lord, Lord Imbert, should certainly carry weight in this House. I hope that the noble Baroness will, even at this late stage, see the logic of these positions and acknowledge that your Lordships have made substantial arguments, which should remain as the Bill goes back to another place.
Baroness Farrington of Ribbleton
My Lords, I understood the noble Baroness, Lady Hamwee, to say that our duty was to amend legislation where practicable. I did not hear her say that our other duty is to consider the need for that legislation, although I understood that she was not convinced of the need for this legislation. It is my view that our first job in any piece of legislation is to see whether the case for it has been made.
There has been much attack on members of existing police authorities. They are not high-profile; people do not know who or where they are. I have spent time looking at all the issues that were raised with me and would be considered by a single populist candidate. I raised none of them in public. I raised them with my noble friend who was chair of the police authority, the chief constable, divisional officers and community police officers over a long period. To say that police authorities are ineffective because they are not in the press every week and the newspapers do not know who they are is, frankly, not borne out by my experience. The issues included car crime and many other things. The real issue facing policing by consent and our police service is that of those for whom the system is broken. They do not give consent; they are not part of the consent. Those are the issues, referred to by the noble Lord, Lord Condon, that need to be looked at by a royal commission and the groups that are studying this. That is where the system is breaking down—not with the chief constable, police officers or members of the existing police authorities.
I suggest that the Minister should be awfully careful in using the argument that we ultimately have no right to intervene because the other place is democratically accountable. That does not appear to sit with her Government’s policy that, were we to be democratically accountable, we would still have to be quiet on issues that we did not agree with.
Police Reform and Social Responsibility Bill
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Lord Dear
My Lords, I think that one should reflect on the fact that policing can be a very lonely business. It is undoubtedly lonely for a police constable who is alone outside a club as it is turning out at 2 o’clock in the morning and everything seems to be going out of control—some of us have been there. It is equally lonely to be in the office at midday as a chief officer of police when the world is clamouring for a press conference and you are not too sure how to handle it. In the past I have found useful Polonius’s advice to his fast-departing son in Hamlet—a long list of things that one should or should not do—which concludes:
“to thine own self be true,
And it must follow, as the night the day,
Thou canst not then be false to any man”.
Of course, that begs the question, which Shakespeare did not address, of what yardsticks you are going to use when you are being true to yourself.
To address the loneliness of policing on some occasions one should turn to the oath of office that one takes as a constable, and which binds you all the way through to the most senior of ranks. You swear or affirm that you will exercise your duties as a constable at all levels without favour, affection, malice or ill will. That is a binding principle and is a useful one to remember. I am sure that the majority of police officers remember it whenever the going is tough. The answer to the question of how you should react is that you react without favour, affection, malice or ill will. That really means impartiality.
I do not quarrel at all with the wording of the amendment. Upholding the integrity and impartiality of the office is, of course, critical. It is critical today because it is in the public focus; it is always critical at 2 am and 12 pm, as I have just said. I support the amendment in the name of the noble Baroness, Lady Browning, which refers to,
“the effective exercise of the functions of the police”.
From my point of view, the effective exercise of functions embodies, among other things, the fact that you will act impartially and according to the oath of office which binds you when you are in the police.
I suppose what I am saying, in an effort to be helpful, is that I do not quarrel at all with the wording of Amendment 3, but I have spoken on several occasions in your Lordships' House in Committee and on Report about the risk of being overprescriptive. I do not think this is overprescriptive; it spells out in greater detail what the words “effective exercise of functions” mean. For my money, I am happy to stick with the amendment tabled by the noble Baroness, Lady Browning, because, as I have said—I will not repeat myself at length—it encompasses not only the words of Polonius to his son, but, much more importantly, the wording of the oath of office. As I say, I do not quarrel with the amendment of the noble Lord, Lord Hunt, the wording of which is admirable, but I think that it is encompassed by the wording of the amendment tabled by the noble Baroness, Lady Browning.
Lord Beecham
My Lords, the problem with the proposition advanced by the noble Lord, Lord Dear, is that the government amendment is strictly related to the person and role of a single individual—the police commissioner. It seems to imply that it is necessary to direct the panel to support the police commissioner in the exercise of his functions as if that was an overriding consideration whereas, of course, the overriding consideration is the functioning of the police service. That is what is encompassed in the amendment of my noble friend Lord Hunt. I am surprised that the Government felt it necessary to produce the amendment in the terms that they have. It seems to see the role of the police and crime panel as the police and crime commissioner’s little helpers who are there to support him in the exercise of his functions.
Given that this is a political role, the implications around supporting the commissioner in the exercise of those functions—for example, in the run-up to an election for a police commissioner—are rather disturbing. Are we to see the police and crime panel accompanying a future Mayor of London on another occasion when the police make an early-morning arrest? Are we to have a latter-day repetition of the siege of Sidney Street, not just with an individual—the Home Secretary was involved in the Sidney Street affair—but with a police commissioner, accompanied by the police and crime panel effectively supporting him in the exercise of his functions? It is rather concerning.
My noble friend referred to the position of the chief constable in these circumstances. Surely he is also entitled, and the police force is entitled, to the support of the police and crime panel in the exercise of its functions, not simply those of the commissioner. Given that it is possible to envisage circumstances in which, in an election for a police and crime commissioner, one of the platforms of a candidate might be a wholesale criticism of the existing chief constable and an implicit threat that he might be replaced, what is the position then of the police and crime panel as regards that person being elected? The Government need to reconsider this provision very carefully. My noble friend’s amendment pitches the support where it is needed—for the police force as a whole, not for an individual, be it either the chief constable or the police and crime commissioner. That seems much the preferable course. There is an implicit danger in the Government’s amendment. I hope that on reflection they will accept that my noble friend’s amendment achieves what is probably the Government’s intention, but which might be frustrated in practice given the politicisation of the role which is being created.
Police Reform and Social Responsibility Bill
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Lord Shipley
My Lords, I add my voice to those who support this amendment because I see it as a critical part of the necessary checks and balances on the powers of the commissioner. I say that for two reasons. First, the acting commissioner could be in post for eight to nine months—that is, for up to six months as permitted in the Bill, together with the period during which a replacement is elected. Frankly, to have an unelected acting commissioner for that length of time is unacceptable as they will set the budget and the precept. Although there is a veto on the precept, nevertheless they will be responsible for making the proposal on the precept and they will make a decision about the budget. All those functions should be undertaken by people who have been elected as opposed to people who have not been elected.
Secondly, the commissioner will have appointed the staff member to their substantial post. The only power that the panel will have is over which staff member is nominated, although they have to bear in mind the advice given to them by the commissioner who is incapacitated. I regard this as an absolutely fundamental issue. The panel must be able to appoint from among its own members. Between now and the next stages of the Bill, I very much hope that my noble friend the Minister will make clear to colleagues in the other place that this matter is of fundamental concern to a large number of Members of your Lordships' House.
Lord Beecham
My Lords, I correct my noble friend Lord Hunt, who has underestimated the extent of the precept as a percentage of the local council tax, which would fall potentially to the acting commissioner to levy. It is 11 per cent in England and 15.5 per cent in Wales—even greater than my noble friend indicated. I respectfully suggest that there is potentially an equal underestimate in relation to the period of vacancy. As I read the Bill, the six-month period after which a vacancy would have to be declared and a new election take place, which would add to the length of time in any event, arises in connection with incapacity. However, there are other grounds on which a vacancy might arise. In particular, there is the possibility of a police and crime commissioner being suspended. That could conceivably take an even longer period to resolve, so there is the potential for this position to be filled by a second-hand appointee, as it were, for a long period. Of course, the whole rationale of the proposal for police commissioners—flawed in the opinion of many, certainly on this side of the House—is that it is necessary to have somebody who is elected and who has a direct mandate for the purposes of exercising the functions that the Bill confers on the holder of the office.
There will be no such democratic element in the event that the procedure currently in the Bill is enacted. There would be no democratic mandate of any kind—direct or indirect. It is intolerable that that should be the case when within the police and crime panel, there will be people with a mandate—not the complete mandate—that will be claimed for the police and crime commissioner in as much as he or she will be elected for the whole force area. There will at least be some democratic mandate for those elected local councillors who will constitute the majority of members of the police and crime panel. In those circumstances I can see no argument for allowing—indeed requiring—the appointment of somebody who has no mandate when there are those available within the structure who would have at least some mandate.
I hope that the Government will think again. The noble Baroness was unlike her old self, if I may say so, at the beginning of this debate when her rather surprisingly peremptory statements were made. I would like to see her return to what your Lordships might think is the much more acceptable Browning version.
Police Reform and Social Responsibility Bill
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Lord Beecham