Policing Protocol Order 2012

Lord Henley Excerpts

Wednesday 25th January 2012 Lords Chamber

I, too, wrote down “plain English campaign” in thinking about the approach of the protocol; it can be useful in this incarnation and in future ones, but I do not take the point about lack of consultation.

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

My Lords, I appreciate that the motivation of the noble Lord, Lord Hunt, may be a fear of the democratic mandate that the PCC will have but, having said that, I am grateful to him for giving us the opportunity both to have a break from the Welfare Reform Bill and, far more seriously, to consider the finer details of the policing protocol which, last summer and autumn, this House argued was a necessity to secure the operational independence of the police service.

I pay tribute to my noble friend Lady Browning, who took the Bill through this House. We are all grateful for everything that she did then. May I say how grateful I am for the chance to hear her today and how much I wish it were she who was still standing at the Dispatch Box to argue this case? Still, I shall do my best to live up to her standards in dealing with the various questions.

I echo the words of the noble Lord, Lord Imbert, when he said that—I hope that I have his words down correctly—we must do all we can to maintain the worldwide reputation of the British police. Yes, that is our aim and it is what was behind the Act as it went through Parliament, which is why the protocol is so important and why we are grateful to the noble Lord, Lord Hunt, for offering us the opportunity to debate it on this occasion.

The noble Lord put a number of questions to me. I counted up to seven; I might have got that wrong, but he will no doubt intervene if I do not deal with all the points that he made. First, he echoed the Merits Committee’s complaints about a lack of consultation, and I will get to that in due course. I noticed those wonderful words from the noble Lord, Lord Dear: it was with “the greatest respect” that he disagreed with the Merits Committee. I have a great deal of respect for that committee—we created it in the run-up to the 1997 election, it is a great committee and we always take its views with great respect—but I also note that when someone says that they disagree “with the greatest respect”, they are disagreeing in pretty strong terms, and I am grateful to him for that.

I also note what the noble Lord, Lord Hunt, had to say about the Merits Committee’s view about the ambiguity of some of the wording, and I will get to that on his sixth point, which was about the protocol not being drafted in legal language and whether it will stand up in court. Again, I was grateful for what my noble friend Lady Browning said about how grateful she was that it had been put in plain English. I assure the noble Lord that the courts are pretty good at interpreting things when they are in legal language, but I am sure that if necessary they are equally good at interpreting things when they are in plain English.

On that small point, I assure my noble friend Lady Hamwee about her interpretation of which came first—the statute or the protocol—that the courts would always have to take the statute first, should there be any disagreement between the statute and the protocol. As my noble friend pointed out, though, there will be no problem.

The noble Lord, Lord Hunt, talked about problems with the turnout for November elections. As he will remember, one of the reasons why they are happening is the delays, possibly those caused in this House, that meant that we had to push back that date, but I am sure that we will still have a very good turnout in due course.

The noble Lord spoke of the fear of undermining the operational independence of chief constables—again, that is something that I will get to as I deal with these matters—and about the fear of greater insecurity for chief constables. The noble Lord’s seventh point was again on the question of whether it would be appropriate to have a review in due course, and I hope that I will deal with that in my remarks.

I shall start with what was probably the noble Lord’s fourth point: operational independence. We have always been clear about our commitment to the absolute preservation of operational independence. As my right honourable friend made clear in the debate in another place, that is not something that can be defined in law but it is a cornerstone of policing in this country. That commitment has been made both here and in another place on a number of occasions.

I turn to the consultation process itself, which seemed to cause concern to the noble Lord, Lord Hunt, although, as the noble Lord, Lord Dear, put it, it did not seem to cause concern in another place, nor does it seem to have caused concern to anyone else here other than the Merits Committee. Again, though, with the greatest respect I suggest that the committee is wrong; as my noble friend Lady Hamwee put it, it has been consulted almost to death.

The order was not drafted in isolation. It relied heavily on the active engagement of the Association of Police Authority Chief Executives, the Association of Police Authorities and the Association of Chief Police Officers, the former Deputy Commissioner of the Metropolitan Police Service, and the deputy mayor for policing and crime and his chief executive in their former capacities as chair and chief executive of the Metropolitan Police Authority and the Greater London Authority itself. I have no doubt that once police and crime commissioners are elected, there will be a need to seek their views on the protocol, but I stress that this document was issued by my right honourable friend the Home Secretary and it therefore reflects her interpretation in the context of the Police and Social Responsibility Act of how the policing landscape should operate effectively. The protocol that we have now had the opportunity to debate and consider is the result of determined negotiations between all those stakeholders, who have a broad range of robust views on operational independence. It is obvious to me that such a range of opinions also extends to debates in another place and to those in your Lordships’ House.

I appreciate that the noble Lord—I think this was his seventh point—would like to see a further review of that protocol before the end of 2013. My right honourable friend in another place gave no firm commitment about a review date, but he said that the Government would consult the PCCs although, as the noble Lord, Lord Dear, made clear, we cannot do so until they exist. However, he also stressed that the protocol, issued by the Home Secretary and setting out her expectations of the formal landscape, will enable the public to understand the respective roles and responsibilities of all parties. That process is obviously open to review in the future but no firm date can be given.

Thinking again about the wording of the Motion in the name of the noble Lord, Lord Hunt, who talks about the lack of a “robust consultation process”, I would also make it clear that this process has not been rushed in any way. We placed in the Library of the House a draft protocol, in which my noble friend Lady Browning invited Members from all sides of the House, whom she later met, to discuss the text. She then acted on the comments that she received. That engagement with Members of the House would not have been possible without the open—at times frank—approach that she took in reaching out to all sides on a matter in which I know she is considered to be above her colleagues. My ministerial colleagues in the Home Office and I are very grateful to her for continuing that process.

I think these numbers relate to the fourth and fifth questions about undermining operational independence and fears of greater job insecurity. I shall say just a little more about that matter for the benefit of the noble Lord, Lord Hunt. As he reminded us, further orders will come before this House so there might be opportunities for other debates on the affirmative Motions and, no doubt, on some of the negative Motions that the noble Lord will seek to find means of debating as well. One of the key themes that has run through the numerous debates that we have had so far on the matter of operational independence and the safeguarding of the officers responsible is the fact that it is very difficult, as my right honourable friend made clear in another place, to define what operational independence is.

Primary legislation and common law provide some clarity on the legal principles that underpin the operational independence of the office of chief constable. For example, Section 29 of and Schedule 4 to the Police Act 1996 require members of police forces to be attested as constables on appointment and set out the wording of the declaration that they must make. Case law sets out the important principles that constables act as officers of the Crown in carrying out their duties, but are not to be regarded as servants of any executive authority, and exercise their powers independently at their own discretion. If the noble Lord wanted, I could cite case law going back to 1611 on that issue. I see that he shakes his head and does not require it at this moment. It also sets out the duty on chief constables to secure the preservation of the peace and uphold the law in their areas in the way that they see fit.

Therefore, striking the right balance in setting some clear boundaries within which we expect the day-to-day relationships between the key parties—that is, the PCCs and chief constables—to operate has been a key point of negotiation. I was grateful for the remarks of the noble Lord, Lord Dear, when he talked about there being possible tension on those occasions but that tension not necessarily being a bad thing. I think my noble friend Lady Hamwee described it as a creative tension. I forget the precise wording that the noble Lord, Lord Dear, used; I think it was “constructive tension”. However, I think we would all agree that tension can exist without being a bad thing on those points.

I hope that such assurances, including those of people such as the former Commissioner of the Metropolitan Police and his deputy, who endorsed the protocol alongside ACPO, the Association of Police Authorities and the Association of Police Authority Chief Executives, will be sufficient to remind the noble Lord that we have got the boundaries right. The protocol is written in plain English, which seems to disturb him, but perhaps I will hear on another occasion that he prefers them to be written in another manner. I am certainly satisfied that, in setting those boundaries, there remains enough flexibility in the protocol for it to be the starting point for a much more detailed and public-focused discussion of how to reduce crime and how to make sure that we get the policing service that we want and one that, as the noble Lord, Lord Imbert, put it, maintains its reputation of being one of the best in the world.

I hope I have dealt with all the points put by the noble Lord, Lord Hunt, and those raised by other noble Lords. If I have not, I will write to noble Lords in due course.