Elected Local Policing Bodies (Complaints and Misconduct) Regulations 2011

Lord Henley Excerpts

Wednesday 14th December 2011 Grand Committee

Moved By

[Lord Henley]

That the Grand Committee do report the House that it has considered the Elected Local Policing Bodies (Complaints and Misconduct) Regulations 2011.

Relevant document: 33rd Report from the Joint Committee on Statutory Instruments.

[The Minister of State, Home Office (Lord Henley)]

My Lords, in speaking to the Elected Local Policing Body (Complaints and Misconduct) Regulations 2011, I shall speak also to the Local Policing Bodies (Consequential Amendments) Regulations 2011. The first set of regulations make consequential amendments to various existing statutory instruments arising from the replacement of police authorities by PCCs and the Mayor’s Office for Policing and Crime, and from the fact that chief officers of police will employ police staff in the future. The second set of regulations sets out the way in which complaints against police and crime commissioners, the mayor’s office and their deputies will be handled.

I will come to the regulations in a moment but I want to start by setting the context and talking about PCCs more generally. The Committee will recall that the Government’s plans for police and crime commissioners are set out in the Police Reform and Social Responsibility Act 2011. There will be 41 elected PCCs in England and Wales who will take office on 22 November 2012. Ahead of that we expect to have a live PCC model up and running in London when the Mayor’s Office for Policing and Crime comes into effect in January.

There has been vigorous discussion and full scrutiny of our plan for PCCs. There has been a public consultation and, as the noble Lord will remember, a lengthy debate in Parliament. The Government listened to concerns. We strengthened the checks and balances on PCCs. We have taken every step to ensure that the British model of impartial policing, which we all prize, is preserved, and Parliament has now spoken.

I now turn to the secondary legislation that is needed to bring about these changes and the subject matter of this debate today; namely the 2011 consequential amendments regulations and the complaints and misconduct regulations. I will take them in turn, starting with the consequential amendments regulations. The regulations make consequential amendments to various existing statutory instruments arising from the replacement of police authorities by PCCs and the Mayor’s Office for Policing and Crime, and from the fact that chief officers of police will employ police staff in the future.

The Police Reform and Social Responsibility Act makes significant changes to the governance arrangements for policing in England and Wales, with the exception of the City of London police area. The Act abolishes the police authorities responsible for maintaining police forces outside London and replaces them with directly elected PCCs. The Act also abolishes the Metropolitan Police Authority and replaces it with the Mayor’s Office for Policing and Crime, an office held by the Mayor of London. In the City of London, the Common Council retains its role as the police authority, and the status of the commissioner of the City of London Police remains unchanged. The Act refers to PCCs, the Mayor’s Office for Policing and Crime and the Common Council collectively as “local policing bodies”.

The consequential regulations in question are not intended to change the substantive effect of the various instruments being amended, except for the purposes of reflecting the changes made by the Police Reform and Social Responsibility Act 2011. Specifically, the regulations will amend the Police and Criminal Evidence Act 1984 (Drug Testing of Persons in Police Detention) (Prescribed Persons) Regulations 2001 to ensure that members of police staff continue to be prescribed as persons permitted to take samples from suspects in police detention for the purposes of drug testing. The amendments to the Docking of Working Dogs’ Tails (England) Regulations 2007 allow members of police staff to continue to present police dogs for certification as working dogs for the purposes of the working dogs’ exemption to the prohibition on the docking of dogs’ tails. Finally, the changes to the Local Authorities (Alcohol Disorder Zones) Regulations 2008 allow for costs in relation to members of police staff designated as community support officers to continue to be included in charges levied in relation to alcohol disorder zones. The costs incurred in relation to the staff and police officers that are currently payable to the police authority will be payable to the local policing body.

Section 6(15) of the Animal Welfare Act 2006 requires the Secretary of State to have consulted those persons appearing to her to represent interests with which these regulations are concerned as she considers appropriate. As the amendments made to the Docking of Working Dogs’ Tails (England) Regulations 2007, to which that requirement relates, concern only police dogs, and the only amendments are for the purpose of replacing references to police authorities, the Secretary of State considered it appropriate to consult only the Association of Police Authorities and the Association of Chief Police Officers. These bodies had no comments to make on the instrument.

Sections 15 to 20 of the Violent Crime Reduction Act 2006, under which the Local Authorities (Alcohol Disorder Zones) Regulations 2008 were made, are repealed by Section 140 of the Police Reform and Social Responsibility Act 2011. However, the Government do not intend to bring Section 140 into force until later in 2012.

As the amendments made to existing instruments are limited, the Home Secretary has no intention to issue guidance or review the impact of these changes. The intention is that these regulations will come into force in January 2012 in the Metropolitan Police Service area of London and in the following November for the rest of the country.

I now turn to the Elected Local Policing Body (Complaints and Misconduct) Regulations. It is expected that PCCs and their deputies will uphold the highest standards of public office. However, in the event that there is a complaint or an allegation against one of them, it is important that this is handled effectively to ensure that public confidence in policing is maintained. The Police Reform and Social Responsibility Act 2011 therefore provides for regulations to set out the way in which complaints or conduct matters about elected local policing bodies will be handled. The Act requires the regulations to provide for allegations of criminal behaviour to be referred to the Independent Police Complaints Commission, and allegations of non-criminal behaviour to be resolved informally by police and crime panels.

The reason for requiring criminal allegations to be referred to the IPCC is that otherwise the office holder may be, or may be perceived to be, at an advantage in relation to the police investigation because of his or her responsibilities for holding their police force to account. The IPCC has extensive experience of handling sensitive, complex and high profile cases and will provide independent scrutiny of the handling and investigation of allegations of criminal behaviour in this context. The regulations set out that criminal allegations will have to be passed to the IPCC quickly and give the IPCC a call-in power—a power to require that allegations against the office holder are referred to it. The regulations also give the IPCC strong powers to investigate criminal allegations which are similar to those for investigating police forces, and require the IPCC to publish a report following its investigation.

Where a complaint is not serious enough to require investigation by or under the management of the IPCC, the regulations provide for it to be resolved informally by police and crime panels. The arrangements for PCP resolution of non-criminal allegations are intended to be light touch and locally determined, although it is intended that the Home Secretary will give some guidance in this area. Panels will be able to delegate the initial handling but not the resolution of complaints to the IPCC’s monitoring officer. We expect that the officer will wish to keep abreast of the handling of complaints through regular reports. The regulations allow non-criminal complaints against the mayor, as the Mayor’s Office for Policing and Crime, or the deputy mayor for policing and crime, if he or she is a member of the London Assembly, to be dealt with in the same way as complaints about the Mayor of London or the London Assembly. This is intended to avoid any potential confusion arising from the MOPC being subject to two different standards of procedures.

The regulations have been developed by the Home Office with some of the main delivery partners who will be affected by the proposals, as set out in the regulations. There has also been a public consultation process which received 31 responses. The Government have considered those responses very carefully and have made some important changes as a result. The main changes that we have made are designed to improve co-ordination of the handling of complaints at local level and to keep any bureaucracy associated with administering the system to an absolute minimum. The intention is that these regulations will come into force in January and will have effect from that date in the Metropolitan Police Service area. They will have effect from November 2012 in the rest of England and Wales when the first PCCs take office.

I said at the beginning that Parliament has now spoken in relation to the PCC model, and the Government’s focus is now on making this model a reality. The regulations before the Committee are an important part of the legislative jigsaw that will make this happen and I commend them to the House. I beg to move.

[Lord Hunt of Kings Heath]

My Lords, I am sure that we are all very grateful to the noble Lord, Lord Henley, for his explanation of the two statutory instruments that we are debating together this afternoon. As he rightly said, it is only a few weeks ago since we finished proceedings on the Government’s misguided proposals to establish elected police commissioners, but the Opposition will take a constructive approach to these regulations and the many others that are due to come to your Lordships’ House over the next few weeks and months.

As the noble Lord suggested, the regulations under consideration have been developed to a very tight timetable to enable London to transfer early from the current Metropolitan Police Authority to the new Mayor’s Office for Policing and Crime. The problem is that, because of the rush, we are not being allowed sufficient time or opportunity to explore the implications of the regulations for the rest of England and Wales before we deal with the issue in London. Can the noble Lord give me some idea of the timetable for all the other regulations that will be produced? There is some hint that there is a less than cohesive approach to doing this. For instance, while a shadow strategic policing requirement and protocol have been laid, the finance code has not—unless that has been done very recently. That makes it difficult to understand the balance of powers between the chief officer, the PCC and the panel because we do not have a complete picture.

Similarly the regulations on PCC complaints have been laid but the regulations on panels have not. Again, that makes it difficult to understand how the complaints process will work, for instance, in relation to the powers of the panel to suspend PCCs. It would be helpful if the noble Lord, either here or perhaps in correspondence, could set out the programme that the department is working to so that Parliament can consider the many statutory instruments that will have to be laid.

There are three matters missing from the regulations that I wish to put to the noble Lord. The first is the absence of any code of conduct or other means of defining what acceptable behaviour is and is not in non-criminal complaints that are subject to informal resolution. The second is the absence of any sanctions or similar powers for the panel in dealing with PCCs that misbehaved. The third is the absence of any provisions dealing with powers of the panel to suspend PCCs or the process that it should follow. I should be grateful if the noble Lord would comment on that.

I have, of course, discussed this with the Association of Police Authorities, which is worried about the lack of clarity with regard to both acceptable standards of behaviour and the panel’s power in relation to informal resolution. That might result in complainants believing that it is better to frame their complaints in criminal terms in order to ensure that they are dealt with satisfactorily. The example that has been given to me is rude behaviour by the PCC, and we have to reflect that this is a political officeholder. Rude behaviour is not unknown from such political office holders—not, of course, the noble Lord himself, who is always an example of chivalry, gentleness and kindness, but there are politicians who do not have the noble Lord’s high standards.

Taking the example of rude behaviour, the risk for the APA is that this might be framed as harassment, conflict of interest or fraud in order to ensure that it is dealt with by the IPCC, whose role is much clearer under these regulations, and that there is a proper resolution with meaningful sanctions, in contrast to it being dealt with under informal resolution. This is an important point on which the noble Lord might be able to reassure me. Clearly, however dubious I am about the elected police commissioners, one does not want a lot of complaints being made in an unscrupulous way, which would actually inhibit the police and crime commissioners in the course of their duty. I would certainly be worried if there was a temptation by complainants to, in a sense, upgrade their complaint in order for it to be dealt with by the IPCC because there is a lack of clarity about how the informal resolution process might work.

We then come to the issue of what, if anything, a panel can do under the informal resolution proposal to ensure that a PCC makes reparation for bad behaviour. If the panel has no powers in that respect, what happens when a police and crime commissioner rejects a means of reparation that the panel has suggested? What recourse does a complainant then have to ensure that the matter is resolved to his or her satisfaction? Again, I put it to the noble Lord that, if the complainant is dissatisfied, one of their options might be to have recourse to the media. The risk of that, I suppose, is that publicity will have an adverse impact on public trust in policing.

The noble Lord will be aware that one of my concerns about the whole notion of elected police commissioners is that it will reduce public confidence. Clearly we can argue about that, and I am very tempted to invite the noble Lord to have another debate about the principle, but I will not do that. However, Parliament having enacted the legislation, it is important that we work together to make it as effective as possible. I am concerned that, if the public do not have confidence in the informal resolution process, as I have said, either they will upgrade complaints in the future or the process will be discredited, and you may well find that the position of the PCC is also discredited. So I think that this is worth looking at.

Some other, rather more technical issues have been raised. Is there not a need for regulations to state explicitly that a force cannot be asked to undertake the investigation of a PCC if he or she is the PCC for that force or connected to that force through collaboration, agreement or close association? It is probably implicit in paragraph 19(3)(b) but would there be argument over how “impartially” should be interpreted?

I understand the logic of appointing the PCC’s chief executive as monitoring officer to the panel—covered in paragraph 7—to achieve national consistency, particularly in Wales where panels will not be part of local government and so will not have automatic access to monitoring officers in local authorities. Is there a risk of putting that chief executive in a difficult situation? Remember the concept of corporate sole means that the employer of the chief executive is the PCC himself or herself against whom a complaint is being made. Is there not a risk that the monitoring officer will not be able to effectively carry out that duty?

The panels will be asked to judge whether a complaint is serious or not. I assume that means that they will look to the monitoring officer for advice. Again, I point out to the noble Lord that there will be a delicate relationship between the role of the monitoring officer’s chief executive and the PCC who is their direct and only sole employer. It is rather different in corporate set-ups where the company secretary or board secretary would probably carry out that role. It is rather different if it is the chief executive. Might the Government be prepared to look at that, in terms of advice on how it might work in practice?

Paragraph 15(3)(a) raises some concerns. Complaints brought by employees to the PCC cannot be dealt with through these regulations where they concern a PCC’s conduct only towards his or her staff. I well understand that there needs to be provision within employment procedures for handling much of this through established grievance procedures but might there be a possibility that that will not address the situation where an employee is accusing, say, a PCC of a criminal complaint such as harassment? What, for instance, would happen in the case of alleged harassment?

What about joint complaints to the chief constable and deputy or assistant chief constable? With the chief constable becoming the appropriate authority for chief officer complaints, there is concern among chief authorities about the potential situation where a joint complaint has been made against the chief constable and someone in the chief officer team. This could result in a chief constable effectively investigating their own complaint. That might strike at public confidence. The question here is whether that should then give the PCC locus in relation to any less senior officer. I would be grateful for some clarification on that.

Are there enough checks and balances around the PCC’s ability to dismiss the chief officer? Of course, we have discussed this in our debate on the Bill. It is worth making the point that PCCs will have to take account of general law considerations when exercising their powers to dismiss a chief constable. It is not a matter for the regulations but it might be one for the guidance that I hope will be given to PCCs on this matter. Indeed, I would strongly advise the Minister’s department to look seriously at the advice and training or development to be given to PCCs on these matters. On that, I assume that there will be some development programmes for the newly elected PCCs. I would certainly put that proposal forward to be considered.

Turning to the fees regulations, these look straightforward. The opportunity to debate the issue of working dogs’ tails with the noble Lord, with his vast experience of such matters, and with his fellow Defra Ministers from past years would be invigorating, but I shall desist. However, I want to ask him about the financial code. A draft code has clearly been circulated round the usual bodies that comment on police matters. My understanding is that a final agreed version is not yet available, but that the work on the drafting has identified a number of challenges. The real issue here is the introduction of two corporates sole, the chief constable and the police and crime commissioner. The audit and all financial matters are unduly and unnecessarily complicated because of that structure. If there is any information that the noble Lord could give me, I would be grateful.

[Baroness Hamwee]

Like the noble Lord, Lord Hunt, I resist entering into a debate on working dogs’ tails, although it was the very point that I marked when I first read the regulations. I will not repeat questions that he asked that arise from concerns expressed by the Association of Police Authorities, save about a couple of matters, one of which is to ask about updated information on what I would describe as interlocking regulations; they may not formally interlock, but in practical terms they will.

The noble Lord, Lord Hunt, talked about politics being played with in complaints. It is not always the subject of a complaint who has played politics; quite often the complainant uses procedures to play politics.

It is not directly a subject of the statutory instruments, but closely related is the proposed funding of police and crime panels. I have heard concerns that the funding will be very low indeed, only enough for one member of staff and perhaps four meetings a year. These regulations are, one hopes, only a small part of the remit of the police and crime panels, which need to be funded—not extravagantly, but adequately and appropriately. The legislation gives them a wider remit than just complaints.

Thinking about that made me wonder whether that was why, in the consultation process, it was proposed that the police and crime panel should be able to delegate to the chief executive of the police and crime commissioner; the noble Lord, Lord Hunt, has already referred to that. I am a bit uneasy, not because of the point about impartiality or objectivity which the APA has raised, but because it seems to confuse the roles of the two entities.

Nor am I immediately convinced about using the local code of conduct in the case of the Mayor’s Office for Policing and Crime and the deputy if the deputy is an Assembly Member, because of their own role in creating that local code. That raises some quite interesting issues. We do not really know where we are with codes and local government yet. I asked one of my colleagues who is still a councillor, and he says that a lot of consultation is going on, but of course these are to be local decisions, even if local authorities adopt the same or a similar standard.

I also want to ask about Regulation 26(4) of the complaints and misconduct regulations; this is a detail, I know.

I was interested that the IPCC will be able to take a view as to whether what is a possible criminal offence is “appropriate”—that is the word—to be considered by the Director of Public Prosecutions. I am sorry that I gave the Minister so very little notice of this matter. As I have said to him, I only managed to look at these regulations at lunchtime. But it seems rather odd to put that power in the hands of the IPCC.

I am interested that the regulations modify Section 22 of the 2002 Act. They seem to do little more than substitute the dramatis personae. As now, the Secretary of State’s approval will be required for commission guidance but, as far as I can see, the power for the Secretary of State herself to issue guidance is new. It may be that the 2011 Act has allowed for this. I would just pause on regulations adding that right for the Secretary of State—not that you could ever stop a Secretary of State issuing guidance—but it might affect the status of the guidance. I do not know whether the Minister will be able to answer my question, which, in effect, is: is there a substantive change brought about in this by the regulations?

[Lord Henley]

My Lords, I am grateful to both noble Lords for making clear that they do not want me to go any further on working dogs’ tails and we will leave that for another day. Perhaps I may start by making a brief reference to my noble friend Lady Browning who, after all, took the Police Reform and Social Responsibility Act through Parliament. She completed that before she stood down, at which point I moved to the Home Office, and we are very grateful to her for all that she did. I think that the noble Lord, Lord Hunt, is mistaken in describing that Act, which is now on the statute book, as being misguided. As I have made clear, it is now a done deal and Parliament, as I have said, has spoken.

The noble Lord also complained about the rush that is taking place. I do not believe that there is a rush. Obviously, things are marginally tighter for London where things happen faster than in the rest of the country, but the rest of the country has until 22 November 2012. I am sure that it—and the Met—will cope. Certainly, we have had no expressions of concern from the Met about that.

The noble Lord also asked about training programmes and what we are going to do to get the PCCs into the right position for when they are set up, which is obviously of very great concern to my right honourable friend, Nick Herbert, the Minister with responsibility for policing and crime. He chairs a transition board, which includes all the key parties, including the chief executives of police authorities. I assure the noble Lord that everyone involved will be included. My right honourable friend has got the message and he is making sure that something effective will be set up and that we have an efficient transition.

The noble Lord was also worried about the number of further instruments that will be needed to set up these regulations. I referred to a jigsaw and this is just a part of it. Not all of what is coming through will be statutory instruments that will need to go through this House, although some will be. In order to get the detail right, it would probably be best if I wrote to the noble Lord to give him a timetable to assist him in this matter.

He also spoke about the absence of any code of conduct, which was also raised by my noble friend Lady Hamwee. I must make absolutely clear that these bodies will be subject, as elected bodies, to all the noble principles by which we abide. That was clearly set out in the protocol. It is also obvious that they will possibly wish to establish certain locally designed meaningful codes of conduct which they think are appropriate for them. Again, that deals with one of the concerns of my noble friend.

The noble Lord was worried about the absence of any sanctions for dealing with police and crime commissioners. What he must remember is that they are democratically elected bodies. Ultimately, that is the sanction. That is why we brought them in and why we think they will do a good job. They will conduct their business in public, so transparency will be a key tool in how the public view them. I think that this will be a great improvement on the system we have at the moment.

[Lord Hunt of Kings Heath]

I am grateful to the noble Lord and I fully understand the point. Indeed, I remember that when the standards board came in in relation to local government, I thought that some of its earlier judgments were actually inhibiting the democratic process. In no way would I want, if you like, to encourage a bureaucratic process that interferes with the relationship between the elected police and crime commissioner and the electorate. The problem I have is that if the public think the informal resolution process is not very effective, they will be tempted to over-egg the pudding and go for a complaint that will have to be considered by the IPCC. If that happens, I worry that many police and crime commissioners are going to be held back because they could get a plethora of complaints like that. It suggests that there is a need to get the balance right and that we must ensure that the informal process has at least some potential for dealing with these matters effectively in order to prevent a kind of upgrading of complaints.

[Lord Henley]

I am glad that the noble Lord used the word “balance” because obviously that is the thing we have to get right. We believe that we have got it right and it is important that we ensure that the processes are in place. There is transparency and the democratic process which I think will be sufficient. If I am wrong in that and if, as the noble Lord puts it, there is a plethora of complaints, we would have to think again. However, I do not believe that that will be the case.

Perhaps I may move on to some of the other queries of the noble Lord. Having listened to the Association of Police Authorities, he worried about rude behaviour on the part of police and crime commissioners themselves, something he said was not unknown among elected politicians. However, I suppose that I am only a partially elected politician and the noble Lord is an appointed politician. We both know that this can and does happen occasionally, but I hope that it does not happen too often. Moreover, I am grateful to the noble Lord for his kind remarks. The important point to remember is that if any rude behaviour went so far as to be illegal, it would be something that the IPCC would have to deal with. If not, it would be something that quite rightly would go back to the police and crime panel itself.

I turn now to some of the more detailed points made by the noble Lord in relation to conflict of interest. I have to make it clear that we would leave it to the IPCC itself to decide if it was appropriate for the home force or another force to deal with the issue. Again, the IPCC is the right body to deal with this. The noble Lord went on to ask whether a police and crime commissioner’s monitoring officer would have a conflict of interest if he was handling a complaint against the PCC. I do not think that there is necessarily a conflict of interest. The police and crime panel can choose to delegate the handling of complaints to the PCC’s monitoring officer, but it does not have to do so.

The monitoring officer will only be responsible for the initial handling of complaints, not for their resolution. In many ways the arrangement reflects current police authority practice, where police authority staff handle complaints against members of staff.

The noble Lord then asked a fairly detailed question about staff complaints under paragraph 15(3)(a), I believe. I refer him to paragraph 15(3)(b). It does not take a complaint by a member of the PCC staff outside the scope of the regulations, and it allows but does not require the PCC to set aside the regulations. The PCC could decide that it would be proper to continue to deal with the complaint—for example, of bullying by the PCC. So that is something that they would be able to deal with.

Then there was the important question from my noble friend Lady Hamwee as to whether the level of resources would be adequate; my noble friend was very worried that they would not be. I can give her an assurance that I believe that they will be both adequate and appropriate. Police and crime panels will be resourced to perform their vital scrutiny function in relation to the PCC—including work and relation complaints. They will also be able to delegate the initial handling of complaints to the PCC’s monitoring officer, which I hope will minimise the administrative burden involved. They will retain responsibility for the informal resolution of complaints but will be able to delegate that task, where necessary, to a single panellist and a subgroup of the panel or any other individual and return matters to the full panel only where required.

Lastly, the noble Lord asked about the financial code. I can give him an assurance that it is being drafted with partners. We are confident that we have worked through the issues and that it will be produced at an appropriate stage. I cannot give a precise date at this point, so I will just say soon, which seems to encompass a vast range of time on this occasion.

I appreciate that I probably will not have dealt with all the more detailed questions, and I am certainly more than happy to write to both my noble friend and the noble Lord in due course to pick up some of those points. I do not believe that these are highly controversial regulations, so at this stage I hope that noble Lords are satisfied.

Motion agreed.