Police Reform and Social Responsibility Bill

Baroness Hamwee Excerpts

Monday 6th June 2011 Lords Chamber

Moved by

[Baroness Hamwee]

91: Clause 14, page 12, line 30, at end insert—
“(c) the local authorities in the area (including parish and town councils),”

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[Baroness Hamwee]

I shall speak to other amendments in the group and refer to their numbering as I come to them.

In the last debate, my noble friend Lord Shipley referred to the tools that police and crime panels need; I would add to that ammunition. From time to time ammunition is needed—although preferably not used—and the knowledge that it is there can sometimes work wonders. My noble friend did not use the term “outward looking”, although it was implicit in what he said. Panels need to relate—I appreciate that I am in part reflecting the previous debate as an introduction to the points that I am about to make—not only to the police and crime commissioner but to everyone else, including the communities involved in, in the jargon, the policing landscape, although one might just say life.

Amendments 91 and 92 deal with obtaining views in connection with the precept. Under the Bill as drafted, the police and crime panels have to obtain residents’ and business’s views; my amendments provide that they should also obtain the views of local authorities and, in London, the London boroughs. Again, this is blindingly obvious. The local authorities are there at the most local level—by definition they are the most grass root—and they send out the bills that incorporate the precept. If the amendment tabled by the noble Lord, Lord Beecham, is agreed, they will send out separate bills with the precept. So my first point is about more extensive consultation.

Amendments 117, 118, 119, 120 and 121 relate to Schedule 5 and concern what I might summarise as the realities of approving or blocking the precept. In our view, if the police and crime panel is to provide the right checks and balances, it needs to be able to do more. I have always thought of the precept as the last point in a discussion about local authority and equivalent budgets. One has to think about what needs to be spent, how it should be spent and what is available to be spent before one comes to the precept. In order to go through those thought processes and apply their logic, the panel needs to be able to bring other issues into the public arena for debate and have tools to deal with more than just the precept—in other words, to deal with the whole budget and the steps on the way to creating it. The budget is essentially the spending to be undertaken using the local funding—the precept—and the central grant. Of course, in the policing world, the central funding is enormously important. It would be a great pity if the panel were taken down the road of thinking that what mattered was what people were charged instead of also looking at the totality of the budget. I know that that attitude is very widespread, but I would always do anything that I could to stop it being perpetuated.

My amendments propose that the panel should have a role in looking at the heads of expenditure within the budget. That may not be the right way of expressing it, but noble Lords will understand what I mean if I refer to “press and PR” as one budget head, and perhaps the “commissioner’s office”. Then there is the “back office”, if one can ever define what the back office is, and things such as sickness rates. My amendments intend to give the panel the opportunity to make a reality check on what is proposed and to block virement between budget heads. Unless the panel can prevent moving around between the different parts of the budget after the totality has been agreed, it is not really able to fulfil the function that it should.

Amendments 146 and 147 would change the majority needed to block or veto the budget from three-quarters to two-thirds, although as this debate has gone on I have become more and more persuaded of the need for that veto to be exercisable on the basis of 50 per cent plus one—not 50 per cent, which is different, but 50 per cent plus one.

I have provided for an iterative process for the panel to give its approval or not, built on the procedure and drafting with which I am familiar from the Greater London Authority but also from other authorities that have directly elected mayors. I do not like the word “iterative”, but noble Lords will understand it.

I think that the two-thirds level is counterintuitive, which is a term that has been very much used—and other noble Lords will have heard this—by our then colleague Bob Neill, who is now a Minister. In criticising the way in which the GLA budget had to be dealt with because of the legislation, he talked often very powerfully about how constituents had spoken to him on the subject of his having a direct electoral mandate but not being able, as a Member of the Assembly, to block the mayor’s budget. Other noble Lords, as Members of the GLA, will have heard about the budget being in a common-sense way defeated when it came to us from the mayor but having to be approved technically because there was not the sufficient majority against it.

I am sympathetic to Amendment 116ZA in this group, which refers to a link between the money and the objectives. In my mind, that is what I am trying to say when I talk about budget heads.

Finally, I refer to the 13th report of the Delegated Powers and Regulatory Reform Committee. Paragraph 7 is on the regulations regarding precepts in Schedule 5, which the committee says,

“go to the substance of precepts that may be issued in cases where commissioners’ proposals have been vetoed by panels—and, as well as enabling constraints to be imposed on such precepts, the regulations may confer wide discretion on persons not even identified in the Bill”.

The memorandum provided to the committee by the Home Office,

“gives no explanation about the purpose of those powers, how they might be exercised or who (if anyone) might be consulted before … regulations are made. The issue and withholding of precepts are potentially important matters which may affect the operational capability of the police or their perceived independence”—

I stress the words “operational capability” and “perceived independence”. The committee drew this power to the House’s attention to,

“seek further information from the Minister in order to determine whether the negative procedure provides an appropriate level of scrutiny”.

That is what I am asking for with my final amendment. I beg to move.

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[The Minister of State, Home Office (Baroness Browning)]

My Lords, I sense that I have been tempted to enter into something of a Dutch auction. Many figures have been bandied about in terms of the veto. I should say that this is an area where I am genuinely listening, but I think that noble Lords on all sides of the House have colluded this afternoon to try to beat me down to a particular figure. I will promise to look at this, because I realise that there are strong feelings about it. However, I cannot make any promises. If I were able to move, I am sure that I would be unable to move as far as some of the figures that have been suggested. I do not want to raise expectations unnecessarily, but I recognise that in this area there is feeling on all sides of the House. I will genuinely look at this.

The word “accountability” has been mentioned a lot. I must reiterate that police and crime commissioners should be accountable to the public, first and foremost. That is the whole thrust of this legislation and change—I quite accept that it is a big change. We are talking about significant changes to the way in which we organise ourselves at force level. Police and crime commissioners will be elected by the public, and our provisions propose that through elected police and crime commissioners, the plan and the precept—the provisions that these amendments seek to change—were the very tools that would allow commissioners to consult and be measured by the public.

In this debate I am grateful for the constancy from Members of this House on the importance of getting the balance right on the limits on the police and crime commissioners’ powers. Members from across the House have raised this—particularly the noble Baroness, Lady Henig. I can assure her that I will hold a round-table meeting to which I hope she will come, because I want to make sure that we get these checks and balances right—although I doubt that I will be able to satisfy her on everything she asked for.

Noble Lords will remember that in the original Bill, as drafted, the Government intended that panels would have provided a robust overview of police and crime commissioners’ decisions. I must emphasise that we intended for these panels to be constructive and supportive relationships. In this vein, if the first time that the police and crime commissioner discussed the police budget with the panel was the point at which the precept was being agreed, that was not the model we proposed. Members have raised many concerns about heads of budget and other matters to do with the precept. Our intention would be for a series of discussions to be held, not just one blanket meeting at which, for example, the precept or the budget was discussed and a decision taken without the panel having a lot of background information that it would clearly be entitled to ask for. I hope that that will reassure noble Lords that it is not the Government’s intention for there to be one blanket meeting, nor was that the intention of the Bill as originally drafted. Having a veto is a back-stop for when these relationships break down—no more. If the provisions had stood, I would have looked forward to hearing noble Lords’ views on the level at which this could best be achieved but, as we all appreciate, we are now talking about something rather different.

I can promise your Lordships that we will take another look at the figure of three-quarters. I note that many references were made to the figure of two-thirds, although this was in the Bill. I gently remind your Lordships that the figure in the Bill is three-quarters. We seemed to get to a much lower level than that this afternoon, but that is where we are at the moment. I promise to take that away to look at it. Given that, I hope that noble Lords will not press their amendment.

[Baroness Hamwee]

My Lords, I am certainly not setting out to beat the noble Baroness down, up, across the Chamber or in any direction; I am seeking to persuade her. This is not a Dutch auction but to do with what the public would expect. I referred a few minutes ago to it being counterintuitive in the minds of the public when a proposition is, in commonsense terms, defeated by a simple majority but is not actually defeated. Public expectation in all this is very important. If the new model is to be successful, people need to be persuaded to buy into it. They need to be persuaded that it is worthwhile voting for the new commissioners, or whoever we end up with. That philosophy is behind my amendments, along with what the noble Baroness describes—and I agree—as what should be constructive and supportive relationships. I also agree that the arrangements we have been debating should not be the first discussion about the budget, but unless there are formal provisions in the Act—as it will no doubt become—there is no statutory framework to require discussions to be held with the information for which the noble Baroness said the panel would be entitled to ask. We seek to pin that down, together with the attendance at panel meetings by various people who can give the panel the necessary information on which to base its decisions.

[Baroness Browning]

I should clarify something, because I do not want in any way to mislead the House. Although of course it is right that the panel has information and that there are meetings leading up to the decision on the precept and discussion on the budget, nothing in the Bill would allow the budget as a whole to be overridden by the panel. It can override the veto, and regulations will address how that would then be managed. I did not want to lead my noble friend into thinking that I was suggesting that the panel could override the budget as a whole.

[Baroness Hamwee]

No, my Lords, I took that point. The noble Baroness said “override the veto”; I think she meant override the budget.

[Baroness Browning]

Sorry.

[Baroness Hamwee]

A veto on a veto.

This debate has dealt with seeking information about the budget. We have previously discussed amendments about the panel's right to seek information and require attendance to deal with wider issues. I had assumed that, in dealing with those amendments, all noble Lords had the budget in mind as well as other matters, which would make the narrower amendments unnecessary. The noble Baroness has given us welcome news, in the way that she put it, about resisting a Dutch auction but thinking about the merits of the arguments. I hope that, when the points that we have made have settled in people's heads, the merits will be obvious. For this afternoon, I beg leave to withdraw the amendment.

Amendment 91 withdrawn.

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Moved by

[Baroness Hamwee]

93: Clause 14, page 13, line 12, leave out subsection (6)

[Baroness Hamwee]

I shall speak also to Amendments 139, 150 and 226, and shall perhaps mention the other amendments in this group. Amendment 93 is very short. It seeks to understand why subsections (6) to (10) of Section 96 of the Police Act 1996 are to be omitted, although I can see that this is partly consequential. However, subsection (6) deals with the Common Council of the City of London and, as we debated the other day and as the noble Lord, Lord Harris of Haringey, mentioned this afternoon, the City has escaped being affected by this Bill. Subsection (7) is about the duty to review arrangements and subsection (8) gives the Secretary of State powers. I am always happy to see Secretary of State powers going but I wonder why it is happening in this instance.

Amendment 139 relates to Schedule 6 to the Bill. Paragraph 32 of the schedule deals with regulations made by the Secretary of State to modify or exclude the application of enactments. That seems to be a rather extreme way of putting it without a limitation regarding, for example, the modification being only as necessary for the particular requirements of the panels. I put down this amendment to give the Minister an opportunity to give some assurances on that. I tabled it before seeing the report of the Delegated Powers and Regulatory Reform Committee, which deals with this issue at paragraphs 11 and 12 of its report and recommends that regulations under paragraph 36 of the schedule,

“should be subject to the affirmative procedure”.

I overlooked taking the matter to the next stage. If the Minister can give us the assurances that we need, perhaps we will not have to come back to this at the next stage, although we may need to do so.

Amendment 150 would take out paragraph 6 of Schedule 7 to the Bill. The paragraph says that regulations may apply to amend or modify Part 2 of the Police Reform Act 2002—I am abbreviating the wording—and may apply such other enactments,

“as appear to the Secretary of State to be necessary or expedient in connection with, or in consequence of, regulations”.

What is that intended to achieve? Regarding the words,

“in connection with, or in consequence of, regulations”,

I ask: what regulations? It seems a bit circular to me. Therefore, again, I seek information.

I turn, finally, to my Amendment 226. Clause 80 gives the Secretary of State the general duty to exercise powers in a way,

“best calculated to promote the efficiency and effectiveness of the police”.

I heard what the noble Baroness, Lady Henig, said about that phrase in the previous debate. I have proposed substituting the phrase “safety and security” because I think that it goes wider and deeper than, and encompasses, “efficiency and effectiveness”.

We will hear from other noble Lords about their amendments but I think that Amendment 226AA, which will perhaps be dealt with by the noble Lord, Lord Rosser, seeks to retain performance targets for police strategic priorities. I have never been much of a fan of targets but I am a fan of reporting, so I go a little way along the road with him on that. I beg to move.

[Lord Beecham]

My Lords, I break the habit of a brief parliamentary lifetime by suggesting that the Secretary of State retains the two powers which she proposes to dispense with under Clause 82. This amendment would restore the power of the Secretary of State to issue codes of practice for and to secure reports from police authorities. It seems to me that there ought to be a standard code of practice, not necessarily covering everything, but at least covering the basics in the operation of the police force to provide a degree of uniformity across the country or countries—Wales is, of course, included in the provisions of the Bill—rather than different forces operating significantly differently in the way in which they conduct the crucial area of public policy in crime and community safety. It is perfectly reasonable for the Secretary of State to issue such guidance, obviously after the appropriate consultation.

Similarly, accountability is repeatedly averred to be the core of the Bill. At some level the Secretary of State needs to be informed about what is going on nationally in terms of policing so that, in Parliament, she can answer issues that are her responsibility, particularly when they relate to strategic concerns. My noble friend Lord Rosser will be moving an amendment precisely relating to those strategic priorities. There are national and local priorities and it seems to me axiomatic that the Secretary of State should have the information available in the form of reports which she can digest and which Parliament can also read and discuss. This is another aspect in which transparency and accountability can be reinforced, somewhat paradoxically in this case, by restoring to the Secretary of State powers which, at the moment, she is happy to lose. I hope that the Minister will consider this modest accretion to the functions of central government in the wider interests of accountability and transparency in respect of these matters.

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[Lord Wallace of Saltaire]

I think the noble Lord wishes to tempt me down the road back to what his noble colleague, the noble Baroness, Lady Farrington, suggested about detailed and excessive reporting to the Secretary of State. I take the point that he is making in terms of comparison, but this will be available in public. I think it highly unlikely that scrutiny committees in another place, and in this place, will not begin to look at the comparisons. That is part of the process of scrutiny. Perhaps I should say to the noble Lord, Lord Hunt, who challenged me on accountability, that I have always understood that scrutiny is part of the process of accountability. I am afraid that I am not immediately able to quote Professor John Stewart on this question, but I think he would agree with me that scrutiny and accountability are indeed parts of the same process.

Clause 92 ensures that the Secretary of State will retain powers to intervene as a last resort when a police force is failing, but that is a backstop clause for the Secretary of State. In the event of serious or systemic failure of a police force, backstop powers will remain in place so that the Secretary of State can give directions to the police and crime commissioner. These existing powers, currently applicable to police authorities, are applied to police and crime commissioners under this clause.

Where the Secretary of State is satisfied that the police force is failing to discharge its functions in an effective manner, she can direct the police and crime commissioner to take measures to remedy the failure. These measures can include the submission of an action plan. This is important because retaining backstop powers in relation to police performance provides an additional layer of accountability and assurance to the public. But I stress that these are intended to be backstop powers and not to impose detailed reporting requirements on police and crime commissioners throughout all their activities. The intention is to loosen central controls on local policing. For these reasons, I respectfully ask that the amendment is withdrawn.

[Baroness Hamwee]

My Lords, I am sure that my noble friend’s time on his allotment was well spent and he should not fret about that. I agree with him that scrutiny and accountability are closely related. This is one of those replies when one needs to read the detail, which I will of course do, rather than attempt an off-the-cuff response.

However, I shall mention one thing that is not apposite but I cannot resist it. When Section 36, “General duty of Secretary of State”, of the Police Act 1996 was enacted, the Secretary of State was a man. Therefore, it reads:

“The Secretary of State shall exercise his powers … to such extent as appears to him to be best calculated”,

and so on. The drafter of this Bill finds it difficult to accept that the Secretary of State might not be a man. Although the word “her” appears sometimes, the wording is not precisely the same and does not change “him” to “her”. It changes “him” to “the Secretary of State”, which is rather sad. I beg leave to withdraw the amendment.

Amendment 93 withdrawn.

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[Lord Harris of Haringey]

I certainly know why that is. We start from the basis that London is the greatest city in the world and that Birmingham and Manchester pale into insignificance. To be very serious about this, under the current arrangements, the 32 boroughs in London feel that they are not directly involved, which is one reason why we have had amendments in Committee on the importance of consultation and involvement with local authorities. It is all part of a package, and I hope that in looking at the issue outside London the implications inside London will be reflected on. Part of the solution will be to build in robust relationships between, in London's case, the Mayor's Office for Policing and Crime and, outside London, police and crime commissioners and commissions or panels, or whatever else we have, and the elected local authorities in each area, both in providing scrutiny and in developing plans for policing in those districts.

[Baroness Hamwee]

I realise that I have not spoken in this debate yet, but following the point raised by the noble Lord, Lord Harris of Haringey, perhaps the Minister would also consider the position of the current London Assembly. It appears not to be too concerned about most of the functions of the panel; it will be restricted to a number of the members of the London Assembly, but not all of them. On the noble Lord’s point, only a selection will do the job, not all 25 members, so the position there is exacerbated.

[Baroness Browning]

I promise my noble friend and the noble Lord, Lord Harris, that I will look at that, but I cannot make any promises. Speaking of my disappointments, I say to the noble Lord, Lord Hunt, that I do not accept that there is no corporate governance in the Bill. We are looking at matters that have been raised by this Committee. I refer him to Clause 28, which deals with independent members; to Schedule 1, which deals with the requirement of chief executives; to Schedule 16, which deals with external audits; and to Clause 11, which deals with the duty to provide information. Those might be imperfect and noble Lords might not agree with them, but it is just not right to say that there is no corporate governance in the Bill. I am very happy to look at that in the light of remarks that have been made in previous debates. I think the noble Lord overegged the situation a little this evening.

Perhaps I can turn to the amendments; there have been a lot of them. I shall begin with Amendments 123AB, 139A, 148C, 148D, 149B, 149C and 149D. Those amendments envisage an entirely different approach to handling complaints against the police and crime commissioner. They would mean that a code of conduct for a PCC would be drawn up centrally and that police and crime panels would hold PCCs to account against it. It would even allow a police and crime panel to go as far as removing a directly elected person with a public mandate from their office and to suspend the PCC indefinitely while the allegation was investigated.

I cannot support the amendments because they would enable the police and crime commissioner to be removed from office without recourse to the public who elected him or her. A PCC will be elected by the public in their force area and will be accountable directly to that public for the decisions that it makes. Of course, that is if the Bill returns in a different form from the one that is before your Lordships tonight. I add that caveat. The commissioner cannot be removed by the police and crime panel for a perceived breach of a centrally defined code of conduct. If the PCC makes the wrong decisions, the panel will ensure that the public are informed, and the public will remove them at the ballot box. That is at the heart of the matter, and something on which probably we will not agree.

Perhaps I may refer to my folder, which I have left on the Bench. I apologise; I put my papers down in the wrong order. They are now on their way. I will set out how the amendments would affect the Bill, and the Government's position. The overarching effect of the majority of the amendments would be to change the relationship between the police and crime commissioners and the police and crime panel, as well as the composition and powers of the panel. This would include provision for the police and crime commission to be drawn from the panel membership. The Government's intention remains that police and crime commissioners will be elected by the public to hold chief constables and their forces to account, subject to—

[Baroness Hamwee]

My Lords, I was trying to attract the attention of other Members on the Front Bench. I think that the noble Baroness has gone on to the next group of amendments. I wonder whether I am the only one who is confused; other noble Lords are listening obediently. Of course, it may be very useful to have the answers before we move the amendments.

[Baroness Browning]

I apologise to the House and hope that noble Lords will forgive a new girl for getting her homework mixed up. Perhaps we might pause—I do not know the procedure—while I make sure that the right notes are in front of me.

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[Baroness Hamwee]

My Lords, I, too, have amendments in this large group—I am afraid that it is another nine. Like other noble Lords, I apologise to Members of the House who are waiting to speak in the next debate. They are sharing something of the pain that has been experienced during the past few Committee days.

My Amendment 148 deals with the suspension of a PCC who is charged with an offence. The Bill provides that the suspension will kick in if the charge is of an offence which carries a term of two years’ or more imprisonment. The noble Lord, Lord Hunt, has pitched that at six months; I have brought it right down to any imprisonable offence.

The commissioner will be a man—almost certainly—to whom the chief constable, and hence the force, is accountable. It is important that the credibility of the person right at the top is not under threat. I recognise that this is harsh, because we are talking about a charge and not a conviction. There may be a balance to be struck by looking at the type of offence and at whether the salary should continue to be payable. In most situations where somebody is suspended, salary, allowances and so on continue to be paid. The penalty in this case is that the salary is not paid for the period of suspension, which could do with some examination.

Amendment 148AA would provide for the suspension of the commissioner who

“is the subject of an allegation of a serious complaint or … conduct matter”—

I have picked up definitions from elsewhere in the Bill—extending beyond a criminal offence to “other corrupt behaviour”. Other noble Lords have talked of their experiences of dealing with corruption and have seen the fallout at close quarters. I am not sure that “corrupt behaviour” is the right expression, but I am sure that conduct matters are too central to the model—any model—to be left to regulations. We need provisions in the Bill. Nor is it proper to put matters which may affect the whole attitude of the force and individual careers into secondary legislation.

Notwithstanding that, my Amendment 149B would give a regulation-making power to the Secretary of State on the setting of standards to be observed by the commissioner. It would do so not because I think that that is necessarily the right way to go about it but because I want to draw attention to and probe how the Government intend to deal with the setting of standards.

Amendment 149D would add to Schedule 7 a new paragraph providing for the panel to monitor and review complaints and conduct matters and their handling. It would give the panel a wider role in order for it to be able to consider not just individual problems but the overall picture. I stress “monitor”, “review” and “handling”.

Amendment 172 takes us to the veto of the appointment of a chief constable, which should be a meaningful power. I shall not repeat the arguments advanced for three-quarters, two-thirds or 50 per cent plus one, but noble Lords know where I have been going on this issue.

Amendments 173, 174 and 175 would remove certain powers of the Secretary of State. Schedule 8 provides that the Secretary of State may make regulations about next steps if there is a veto of the appointment, including, as I read it, allowing them to insist on the appointment of a candidate who has been rejected. Secondly, the schedule provides for regulations on limits on who may be considered for appointment, including limits not only on but to—in other words including—a previously unsuccessful candidate; and then confers functions on the Secretary of State or “any other person”. That raises a lot of questions.

Finally, Amendment 216A is an add on to the disqualification from election for or being in office as a commissioner—that is, being the subject of an investigation by or on behalf of the IPCC resulting in a recommendation for qualification.

The group covers an enormous amount of ground because there is an enormous amount of ground still to be covered.