Police Reform and Social Responsibility Bill

Lord Hunt of Kings Heath Excerpts

Monday 6th June 2011 Lords Chamber

[Lord Hunt of Kings Heath]

My Lords, I have two amendments in this group: Amendments 118A and 122AA. I also support the thrust of the other amendments in this group that we have already heard about this afternoon. We are talking about a considerable sum of money. As my noble friend Lord Beecham said, it is 11 per cent of council tax in England—millions of pounds. We are giving considerable power to two people to spend this budget. We have two corporations sole in the PCC and the chief constable, and one person to set the precept—the police and crime commissioner—again, as a corporation sole. Huge power over resources is being given to two people without any recognisable corporate governance safeguards. It is a most extraordinary proposal—one for which I have yet to hear any persuasive argument at all.

If this Government last their full five-year term, it is clear to me that before the end of that term another police Bill will be introduced to safeguard the public purse as this structure will undoubtedly cause problems with the budget and the way in which the money is spent. I guarantee that the Government will have to come back to this, which is why it is so disappointing that so far we have had little sense that the Government are prepared to listen and introduce amendments to secure the public purse.

First, I very much agree with what my noble friend Lord Beecham said about the need for transparency. Why should the police and crime commissioners hide behind the council tax levied by the relevant local authority? Surely, this matter should be completely transparent. As my noble friend says, there should be two completely separate precepts. Secondly, he referred to the relationship between this Bill and the Localism Bill, the Second Reading of which we are to have tomorrow. It is a very large Bill indeed. Although it is entitled the Localism Bill, it seems to give enormous power to the Secretary of State for Communities and Local Government. The freedom that local authorities are being given seems to me to be freedom to act as the Secretary of State instructs them so to do. However, as my noble friend remarked, there seem to be inconsistencies in the way that issues around the precepts are dealt with. Will the Minister assure me that there has been close understanding and contact between her department and CLG to ensure that the proposals on precepts and local referendums run together? My reading is that there is a conflict between the two Bills on this matter.

I turn to the role of the panel in scrutinising the precept proposal. I very much agree with my noble friend Lady Henig on this. I do not see how the panel can undertake appropriate scrutiny unless it is given full details of the budget which lies behind the precept. We deserve an answer on that. We also need to hear why local authorities are not being properly consulted about the precept. Why should business rate payers be consulted but not local authorities? What is it about local authorities that should exclude them from this process? As we have heard from my noble friend—this comes back to the Localism Bill—11 per cent of council tax is accounted for by the relevant precept. That must have an impact in relation to the total tax raised from local council tax payers. Why on earth are local authorities not to be consulted on this matter?

As regards the veto power, a three-quarters proportion is too high. I can think of very few circumstances where the veto power is likely to be exercised at that level. It is not even a case of 75 per cent of those present and voting, but 75 per cent who are members of the panel, so the bar is set higher than if it were those present and voting. There are a number of suggestions: two-thirds, 50 per cent and 50 per cent plus one. The noble Baroness, Lady Hamwee, has convinced me that 50 per cent plus one is the right figure. I am sure that when we return to the matter on Report, we will have to see which proposal commands the most support. Clearly, if the panels are to have any leverage whatever, they must have the ability to veto, and the bar must be set sufficiently low to make police and crime commissioners understand that it is possible for that veto to be applied. No police and crime commissioner will think that that is the case if the 75 per cent bar stays.

Finally, I come back to the remarks of the noble Lord, Lord Wallace, on the previous group. He moved the argument on. We have understood that the PCP was there to scrutinise the police and crime commissioner. The noble Lord went further today and said that the police and crime commissioner is accountable to the police and crime panel. If that is so, surely we have to give those panels the ability to hold the police and crime commissioner to account. The Bill as it stands does not do that.

[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.

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[Baroness Harris of Richmond]

I support the amendments put forward by the noble Baroness, Lady Henig. If many of us in the Committee are concerned about the unfamiliar concept of corporations sole and giving this status to chief officers, it makes absolute sense to look at alternative approaches. I would support an amendment that allowed a PCC to delegate certain functions for the management of police budgets and related issues to a chief officer.

I have been concerned in the past about the way in which collaboration agreements and arrangements work. I fondly recall putting forward some amendments about exactly that while the House was considering the then Policing and Crime Bill two or three years ago. They suggested that a police authority should be allowed to delegate certain responsibilities for managing collaboration agreements to another police authority, which is currently prevented. I complained at the time that this made managing better collaboration unnecessarily bureaucratic and burdensome. The same argument applies to PCC functions for managing collaboration agreements. I strongly support the amendments.

I also congratulate the noble Baroness on her amendments to the interpretation part. They are exactly the sort of thing that is required to give force to the more collaborative approach to police governance that I intended by my amendment creating police commissions. Amendments in the name of the noble Baroness, Lady Hamwee, and the noble Lord, Lord Shipley, suggest that a PCC and a panel should share responsibility for handling of force complaints and conduct matters. I support that, but the amendment in the name of the noble Baroness, Lady Henig, goes just that little bit further.

I am also happy to support the other amendments in this group to which the noble Baroness has spoken. However, as many of them relate to ACPO-rank appointments and complaints, and a later grouping deals with these matters, I shall speak in more detail at that stage.

[Lord Hunt of Kings Heath]

My Lords, I am indebted to my noble friend Lady Henig for her amendments. As she said, some are consequential and some help with interpretation, particularly in relation to the vote on day one in Committee. I also share her concern about the corporation sole concept and delegation to chief officers and I welcome her proposal to streamline collaborative processes.

My amendment in this group, Amendment 211ZB, returns us to a matter that I have raised a couple of times before. It relates to one of the most bizarre provisions in legislation that I have ever seen before your Lordships’ House. Clause 62(2) states:

“The police and crime panel may appoint a person as acting commissioner only if the person is a member of the police and crime commissioner’s staff at the time of the appointment”.

Clause 62(1) states that the police and crime panel must appoint a person as an acting commissioner if,

“no person holds the office of police and crime commissioner … the police and crime commissioner for that area is incapacitated, or … the police and crime commissioner for that area is suspended in accordance with section 30”.

If we track back to Clause 30, we find the circumstances in which a police and crime panel may suspend the relevant police and crime commissioner. They relate mainly to whether a commissioner has been charged with an offence that carries a maximum term of imprisonment exceeding two years. We shall come back to the issue of whether two years should be reduced to six months, which it ought to be.

In essence, in circumstances where the commissioner is either incapacitated in one way or another or has been charged under the provisions of Clause 30, the panel is to appoint an acting commissioner who will be a member of the staff of that commissioner. This is extraordinary. Who will the people appointed be? I do not want to repeat what I said on our last day in Committee, but who will they be? Who will the commissioners appoint? They will be media people, because the commissioners will want to be re-elected and so a great deal of their focus will be on communications. We should look at the staffing. There is no control over the police and crime commissioners. There is no corporate governance and there are no non-executives; it is solely up to the commissioners whom they appoint. Clearly they are going to appoint people who will help them in their political endeavours—and yet it is suggested that, if the police and crime commissioner is no longer able to carry on in the job, a member of their staff will be appointed.

What would happen if a police and crime commissioner was charged with corruption and the sentence carried more than two years? What would happen if the senior members of the commissioner’s staff were also charged with corruption? Who then would the panel turn to? Even if it was only the police and crime commissioner who was charged with corruption—and, as we are giving so much power to one individual, with very few checks and balances, it is not impossible that one of the PCCs may find themselves in that situation—are we saying that the public would have confidence if a member of the staff of the person so charged were then to become the police and crime commissioner?

So far, apart from the issue of the memorandum of understanding and the clear hint that the Government are prepared to reduce the veto requirement on the precepts from 75 per cent to two-thirds, we have had very little give from them about recognising some of the serious concerns being put forward. On this one, surely the Government must think again.

[Lord Shipley]

I can speak briefly on Amendments 234T onwards because they are all broadly the same. They are consequential amendments that relate to the fact that the description “police authority” has been changed to “local policing body”, obviously because that is the basis of the Bill. The difficulty with this is that a police authority has a number of members whereas a local policing body will have many fewer members. There is a major issue of principle, both about the centralisation of power in one person and about how the scrutiny, representation and consultation are all undertaken. We think it is clear that it is essential that the policing body should operate in conjunction with the police and crime panel. That gives it a more democratic legitimacy, but also enables it to make better decisions, because it enables the views of the panel to be fed in as part of scrutiny at an earlier stage than that at which a decision might get made.

Finally, there is an important issue of public perception and confidence in the new structure, which goes right to the heart of what the Government are trying to do. The public would expect a police and crime panel to be at the heart of decision-making before decisions are made. This is in conflict with what the Government are intending, but communication and consultation is central to making good decisions. That is why the set of amendments to this schedule, Amendments 234T to the end of the group, stand in my name and that of my noble friend Lady Hamwee.

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[Lord Wallace of Saltaire]

My Lords, I am very sorry that the noble Lord, Lord Hunt, feels that the Government are not willing to listen. The Government have indeed just sent out a number of invitations to meetings in between Committee and Report. I understand that he is unable to come to the consultations to which he has been invited.

[Lord Hunt of Kings Heath]

It is true that I cannot attend, but I understood that the invitation was to give us the memorandum of understanding between the elected police commissioner and the chief constable. That is very welcome, but if the Government are putting all their eggs into the basket of a memorandum of understanding and reducing the veto on the precept from three-quarters to two-thirds, they are not going far enough.

[Lord Wallace of Saltaire]

We are not putting all our eggs into that basket. Let us continue with some of those discussions. I shall also dig out my dog-eared lecture notes and see whether I can find some further quotes from Professor Stewart so that we can continue those discussions.

[Lord Hunt of Kings Heath]

Of course, I can see that if you are holding someone to account, clearly you are part of holding a person or body to account as you scrutinise their performance. I fully understand that, but we have been presented with the proposition that we are to have single individual elected politicians, accountable to the public through the ballot box, for the performance of the police, with the panel providing some kind of scrutiny in addition or as some kind of safeguard. The noble Lord took the argument a bit further forward today by emphasising the accountability of the police commissioner to the police and crime panel. I rather welcome that if the panel is to be given proper powers to hold the PCC to account. The problem is that it is very difficult to see how on earth the PCC can hold the commissioner to account because it has only two levers—one on the precept and the other on the appointment of the chief constable—and very little else.

[Lord Wallace of Saltaire]

This is precisely the question of how the process of scrutiny holds people to account. Public meetings are absolutely part of that, but we clearly need to continue that discussion. It is indeed the purpose and design of this Bill that ultimate accountability for the key tenets of this reform agenda remain with the elected individual. That is, after all, the Bill’s underlying objective. It is also why the Government resist the proposals that a PCC could delegate to his or her operationally independent chief constable, or to others, the task of justifying the political decisions of the office of police and crime commissioner. We accept that there are instances where a PCC will be required to work with others to achieve their political and strategic intents, but we suggest that this should be through collaboration rather than simple delegation. We recognise, of course, that there is a clear need for effective checks and balances. I have already undertaken to the House to ensure that these are properly considered and will be further discussed.

On Amendment 211ZB, on which a number of noble Lords have intervened, the Government’s original proposition for the case in which an elected PCC was incapacitated was to secure an assurance that their plan and strategy would be impartially delivered while they were not in a position to provide the necessary oversight. Much as the Civil Service provide to the Government of the day, it was this Government’s intention to secure a similar degree of impartiality by looking to the head of paid staff to act as a day-to-day caretaker for the police and crime commissioner of their plan, while the police and crime panel would be utilised to provide effective and constructive support and scrutiny of the delivery of that plan.

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[Lord Hunt of Kings Heath]

I shall speak to my Amendments 126BA and 127A, but first I shall comment on the debate so far. One thing that has become absolutely clear is the risk of politicisation of our police forces. On the one hand, we will have party-political police and crime commissioners and, as noble Lords have suggested, the risk is that we will have panels dominated by either political supporters or opponents of the police and crime commissioner. It is clear that the morale of police officers will plummet if they see themselves becoming meat in the sandwich in debate and potential conflict between the politicians on the police and crime panel and the politician who is the police and crime commissioner.

The architecture seems designed to politicise the police force and, as my noble friends have suggested, to lead to circumstances in which, because of the lack of any corporate governance surrounding either the chief constable or the police and crime commissioner, there are bound to be real issues about probity and the use of resources. That is why the amendment tabled by my noble friend Lord Beecham on an audit committee, and the support given to it by my noble friend Lord Harris, is so important.

The debate about ensuring political balance is also very important. Whether it is done using the LGA model or, as the noble Lord, Lord Shipley, suggested, using votes cast at the previous general election, is open for discussion. I should have thought that one would want to strive for some kind of political balance.

I also very much support the amendment that suggests that some independent members be appointed. I am very confused about the Government's position. In almost every other department, when public bodies are being discussed and created, the importance of independent members is without question. The fascinating debate about FIFA and the Football Association recalls the comments of the Ministers at DCMS, who are urging the Football Association to appoint independent members. In the health service—I declare my interest as the chair of an NHS trust and as a trainer and consultant in the NHS—the role of non-executives, independent members, is regarded as critical. Yet in a service in which one wishes the public to have confidence and to believe in political impartiality, we have none of that. We are simply piling in party-political politicians. I despair of the Bill. It is so wrong. It will run into so much trouble if it is enacted. I am very tempted to move an amendment giving Henry VIII powers to the Home Secretary to correct the architecture as problems arise, because if not, I am convinced that the noble Baroness will be here in two years’ time with a police reform Bill mark 2, seeking to introduce the protections that noble Lords around the House clearly think are necessary.

On my two amendments, I hasten to say that the first one, Amendment 126BA, which would delete the ability of mayors to sit on the panel, is probing. I was very glad that my noble friend Lord Beecham and the noble Lord, Lord Shipley, commented on it. It would be good to have a debate about the role of elected mayors in relation to the panel. First, what is the panel? Is it a rather inoffensive scrutinising panel on which it might not be appropriate to have the executive elected mayor, or is it the all-singing and dancing panel promised by the noble Lord Wallace, which will rigorously hold the police and crime commissioner to account? We are not sure yet, but that would be one aspect in a debate about whether elected mayors should be members of the panel.

Let us take the example of the West Midlands. I do not know when the Bill will be enacted, but the Government hope that panels will be established very soon. We have the bizarre situation in Birmingham where the Government presently propose that Councillor Mike Whitby, who is currently the Conservative leader of the Lib Dem-Conservative council, will be appointed shadow mayor. He will lose control of the council in 11 months’ time, but under Mr Pickles’s proposals, none the less, he will be shadow mayor, with all its powers. He could be appointed to the panel. We would have Mr Whitby as a member of the panel, but the other boroughs within the West Midlands will not have elected mayors, so they will presumably be represented by rank-and-file councillors. The whole issue of balance within that panel would be very difficult indeed.

I turn to Wales. I support the remarks of the noble Baroness, Lady Randerson, because I very much agree with what she said, which is why my name is appended to Amendment 127A, although she did not comment on that. It is clear from the noble Baroness’s very helpful response in Committee on 24 May that, because the Welsh Assembly rejected a Motion from the Welsh Assembly Government to support the Government’s negotiated solution, as it was described by the noble Baroness, in respect of police and crime panels, power is now to be given to the Secretary of State. I find that quite extraordinary. The Government acknowledged that provision regarding police and crime panels rightfully fell within the competence of the National Assembly for Wales, but the Assembly decided that it did not want anything to do with it because it did not like the proposals in the Bill. However, instead of the Government acknowledging that, they decided to say, “Well, if that’s the way it is, we’ll take power to ourselves”. That is rather a kick in the face for Members of the Welsh Assembly. I can only hope, as does the noble Baroness, Lady Randerson, that there have been further discussions, and let us hope that the Government have seen sense on that.

[Baroness Farrington of Ribbleton]

My Lords, I speak as someone who sat for many hours on the Front Bench that the Minister now occupies acting as a Whip for the legislation that led to the Welsh Assembly. I can see noble Lords such as the noble Lord, Lord Thomas of Gresford, with whom I spent many happy but rather late hours discussing all this. Given the legal situation, can the Minister say whether there is any possibility of a challenge to the legislation which would overrule the establishment of the Welsh Assembly, the powers devolved to Wales and the joint powers that mingle together? I should be very interested to know whether the Government can simply decide on this one issue to give power to the Secretary of State in Westminster. I think that it will cause fear to run not only through Wales but possibly through Northern Ireland, and even Scotland if the current leader of the majority group in Scotland discovers that the Government can suddenly say that any Secretary of State in Westminster can start taking back powers to him or herself in spite of the devolution settlement. I think that there may be the odd legal challenge. I am not a lawyer but I have sat in your Lordships’ Chamber long enough and heard enough lawyers to know that they are very inventive when it comes to legal challenge. In saying that, I intend no offence to the noble Lord, Lord Thomas of Gresford.

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[Lord Hunt of Kings Heath]

Where I am confused is that I am not sure what duties the panels have in relation to cross-border issues. Perhaps I misunderstood that point.

[Baroness Browning]

The noble Lord is right to correct me. I was thinking in terms of the different structures and the way in which policing matters across the border are very important, as are other issues. It is a question of trying to make sure that we have harmony across both sides of the border.

The possibility of a legal challenge was also mentioned. If there were such a challenge—although I am not aware of one at present—we would obviously have to await the outcome.

Perhaps I may begin by talking about the panels. I am incredibly disappointed this evening for two reasons. First, I am trying to look at areas where there may be some room for manoeuvre within the Bill. I can understand noble Lords’ frustration. I fully appreciate that the noble Baroness, Lady Henig, like many others in this Chamber, has put in a lot of work in a genuine attempt to bring forward helpful ideas on changing the Bill. It must be frustrating when I do not stand up and say, “That was a good idea. Yes, we’ll do that”, but I think all noble Lords have been here long enough to know that I am not in a position to do that.

What I can do is go away and look at the situations that people have raised and discuss them with colleagues, not least because this legislation has already passed through another place. The Bill is not starting out in your Lordships’ House; another place has already given its decision on the structure of the Bill that was first presented to this House. I am genuinely looking to see where I might be helpful and I am talking to colleagues about that. However, it is very unlikely that at the Committee stage of a Bill I shall be able to respond to individual amendments by saying, “Okay, I’ll go along with that”. On the other hand, I do not want to over-egg my response and give people false hope, because there are clearly limitations to what I might be able to achieve. However, I assure your Lordships that I and my colleagues on the Front Bench have listened to the suggestions that have been made, some of which have been incredibly helpful.