Police Reform and Social Responsibility Bill

Lord Hunt of Kings Heath Excerpts

Wednesday 29th June 2011 Lords Chamber

Moved by

[Lord Hunt of Kings Heath]

7A: After Clause 2, insert the following new Clause—
“Pilot schemes
(1) The Secretary of State must—
(a) establish schemes to test the operation of police and crime commissions, including police and crime commissioners, in no more than four police areas outside London, to operate for at least four years;(b) commission an independent review to assess the impact and effectiveness of the police and crime commissions in place of police authorities in those pilot police areas; and(c) at the end of the pilot schemes, publish a copy of the final review report and lay a copy of that report before Parliament.(2) Before commencing the pilot schemes under subsection (1), the Secretary of State must make regulations to establish—
(a) the police areas that the pilots will operate in, taking into consideration the diverse demography, police resources, policing requirements and geography of those areas;(b) the terms of reference for the review; and(c) the assessment criteria that will be used in the review.(3) One of the police areas prescribed under subsection (2) must have an elected mayor in a local authority within that police area.
(4) The Secretary of State must include—
(a) a description of the consultation undertaken; and(b) a summary of representations received on;the proposals in the draft regulations to be made under subsection (2) in the explanatory notes accompanying those draft regulations.”

[Lord Hunt of Kings Heath]

My Lords, in moving this amendment, I will also speak to two other amendments in my name in this group. We come to the question of pilots on which we had a good discussion in Committee. The introduction of police commissioners alongside police and crime panels is a new departure. The House will know that we on this side of the House have many worries about the impact of unelected police commissioners in terms of the potential politicisation of the police force. We think that it would be worthwhile testing this out in a number of police force areas to see the benefits and potential pitfalls.

We discussed this in Committee, as I said, and I was struck that a number of our former commissioners of the Metropolitan Police expressed some reservations about pilots. I well understand the kind of reservations that they were expressing. Essentially, they were saying that pilots create uncertainty among the other forces and chief constables. I have seen government proposals in relation to other public services where proposals are made and you have what are sometimes called pathfinders. You then implement changes in some areas over a couple of years. People in other areas are then not sure when they will come on to the tranche that will introduce changes to their particular part of the country, and clearly there are therefore some uncertainties. But this is such a major departure from the current arrangement that some uncertainties are worth it.

Overall, we do very well by our police service. There are issues and problems in some areas and there are no doubt areas where the efficiency of the force could be improved, I do not doubt that. But many advances have been made in the past 10 or 20 years, not least in the effectiveness of the forces and the strong relationships that they have built between themselves and their communities, particularly at neighbourhood level. There are considerable risks in moving away from that. Pilots would be a great chance to try this out, see what some of the problems are and see, too, some of the advantages. We could learn from that and then look to general introduction.

I hope that I will find some sympathy around the House for this suggestion. After all, if one were looking for a way through the potential disagreement between this House and the other place, I would have thought that pilots might be one way in which we could find some agreement. I beg to move.

[Lord Howard of Lympne]

First, I take the opportunity of associating myself with the remarks just made by the noble Lord, Lord Hunt, about the improvements in the effectiveness of the police over, I am very glad he had the grace to say, the past 20 years—otherwise, it might have been a little more difficult for me to agree with his sentiments. He started off by saying 10 years, but he modified that to 20 and he got it right in the end. I am happy to associate myself with that tribute, but of course there is always room for improvement. The purpose of the measures before your Lordships is to improve the accountability of the police.

I am opposed to pilot schemes for two reasons. First, I very much doubt, and I think it is difficult to make the case, that pilots will prove any true test of the effectiveness of the measures contained in the Bill. The Bill proposes to introduce an element of democratic accountability into the way in which the police operate. The essence of democracy is that it does not lead to uniformity. Democracy is the enemy of uniformity. In a democratic system, some elected police and crime commissioners will be more effective than others: that is in the nature of a democracy.

It would be very difficult to draw general lessons, which is presumably the purpose of pilots, from a few pilots, whatever attempts are made. I recognise that attempts have been made in the amendment to make them representative, but there is no such thing. There cannot be any such thing as representative arrangements. Whatever arrangements are made and whatever areas are chosen, it will not be possible to draw general lessons from whatever happens in the particular pilot schemes that would be set up.

Secondly, there is the element of uncertainty. The noble Lord, Lord Hunt, had the grace to refer to this. Amendment 7A proposes that these pilots should last for at least four years and then there should be an independent review of them. I hesitate to suggest that this is simply a delaying tactic or that the noble Lord has in mind, in effect, a wrecking amendment. Far be it from me to make any such suggestion but this is to contemplate a delay of some six years—taking “at least” four years, then adding an independent review and the time to examine and reflect upon the consequences and results. That is six years of uncertainty for the police service. That would not be doing it or the community at large any kind of favour. For both those reasons, I urge your Lordships to reject these amendments.

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Perhaps I may remind noble Lords of the dramatic reduction in crime and public disorder in New York that occurred after Rudi Giuliani became mayor in 1994 on a platform of crime reduction.

[Lord Hunt of Kings Heath]

My Lords, to what does the noble Lord attribute the huge reduction in crime in this country during the previous Government’s administration?

[Lord Wasserman]

There were many factors, including effective policing. I do not deny that, but the limit in the reduction in crime has not been reached. Many larger reductions—

[Lord Hunt of Kings Heath]

My Lords, all the indications from preliminary figures are that police authorities are reporting that crime is starting to increase.

[Lord Wasserman]

I have seen that, and I am sure that we will discuss it on another occasion. However, there is plenty of evidence for the changes that individual elected mayors in crime-ridden cities in America have been able to make when they put their mind to it, and when they provided their police chiefs with the political cover and resources to do the job.

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This House is a revising and improving Chamber. I do not believe that it wishes to wreck the Government’s plans, but I believe that that is what these changes would do. I suggest to your Lordships that, on serious reflection of the impact of these amendments, they should not be pressed.

[Lord Hunt of Kings Heath]

My Lords, I am sure we would all agree that this has been a very good debate, and I am grateful to all noble Lords who have taken part in it. The noble Lord, Lord Howard, and I would agree that there have been advances over the past 20 years. He said that he thought there was room for improvement. I agree with him, of course. However, I hesitate to agree with him that the need for improvement is such that the current government structure should be ripped up and that a potentially very dangerous option should be put in its place.

I listened with great interest to the noble Baroness, Lady Stowell, who talked about public appetite for change. I have seen no appetite whatever for party political police chiefs to come into the UK in the way in which I think this Bill will lead us.

The noble Baroness has given us the good news that noble Lords can stand for election, and we have already speculated on the elections in Kent and Lancashire. Thinking of the West Midlands, if I were fortunate enough to stand, to be selected and to be elected, the idea that I would stay out of operational policing issues when faced with the legitimacy of being elected is naive. An elected police and crime commissioner will become the police chief of a force. Some noble Lords who support this have said openly that that is where they expect the journey to end. That is why we are so concerned about these proposals.

This is rather like Lords reform; I am sorry to refer back to our debate last week. I support reform of your Lordships' House but I disagree with most of the noble Lords who have spoken in its favour, particularly from the Liberal Democrat Benches, because they and Mr Clegg seem to be proposing that an elected House of Lords will carry on in the same way as the appointed House of Lords. That is nonsense. The election of a House of Lords will change the dynamic of this place considerably, and that is what I would expect to happen with elected police and crime commissioners. After all, what is the point of proposing that unless it is to happen? Surely we are not seriously talking about simply taking the police authorities as they are, adding a dose of democracy and thinking things will be great. No. We are on a journey on which elected people will run police forces in the future. I am convinced that that is where we are going to end up, so I think there is merit in testing this out.

The noble Lord, Lord Howard, said that democracy is the enemy of uniformity and that you cannot draw a general lesson. I follow that argument, and I understand that if you are looking at the relationship in, say, four areas between a police and crime commissioner and a chief constable, those are going to be distinctive areas and there are going to be distinct circumstances, but I would have thought that there are still lessons to be learnt that would enable the Government to take note and make adjustments so that if the system were then rolled out it would be in the light of experience. I am not proposing a wrecking amendment. I am not beholden to four years. I think that the noble Baroness, Lady Hamwee, tabled an amendment in Committee that proposed two years. I would always be open to discussion about this.

The noble Lord, Lord Wasserman, is widely regarded as the architect of all this, and I am not surprised that he does not want pilots. He said that you cannot evaluate this in advance, but he then asked us to take this huge leap in the dark based on experience in some parts of the US. I have yet to hear any convincing argument about why this change is going to be made. Over the past few years, we have seen a dramatic reduction in crime levels in this country. We have seen huge improvement in the relationship between police forces and communities, particularly at the neighbourhood level. Why is this being ripped up to make this huge, potentially damaging change in our police forces and their relationship with the public? I have yet to understand what the party opposite has against police forces that it wants to do this or to hear a coherent argument in favour of the changes.

The Minister said that the coalition agreement provides for this. It does not. The coalition agreement is an agreement between two political parties. It does not have the status of a manifesto. It is very important that noble Lords understand that. I echo the noble Lord, Lord Shipley, and the noble Baroness because my understanding was that this reform was to be accompanied by strong checks and balances. So far, those checks and balances are very weak indeed.

The Minister then said in relation to pilots that we would have different forms of police governance. What do we have in local government? Indeed, the Localism Bill gives us even more forms of governance. I am not an expert on it, but my understanding is that if councils want to, they can go back to the good old committee system—a blessed memory to those of us who remember the allotments sub-committee of Oxford City Council, on which I was not qualified to serve but I have always wished that I had been so appointed. We are well used to different forms of governance within the same structure. I do not see why that should differ in relation to police forces.

I have been a serial culprit as a Minister in restructuring public services. I cannot remember how many NHS Bills I took through in restructuring the health service. The one thing I learnt from that is that it might be better to test ideas out before tearing things up by the roots. In the absence of pre-legislative scrutiny, the noble Baroness had to produce all those amendments on Monday night, after discussions with noble Lords, because this Bill has been constructed too hurriedly. It has not gone through pre-legislative scrutiny and I suspect that more amendments will be necessary when we are able to analyse the full effect of her amendment. There is a very convincing case for some trial and evaluation. I am not going to put this to the vote tonight, but as we move on to further stages of the Bill, I think that in order to resolve differences between this place and another place, pilots might have their place in the sun.

Amendment 7A withdrawn.

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[Baroness Henig]

I support all my noble friend’s arguments. In doing so, I have to say that I struggle with all this. I have tried to understand it; I have studied extremely hard. I would hate, however, to have to be in that police authority environment and explain all this to the police and crime panel, and explain to local people exactly how all this is working out. I would find that extremely difficult. As my noble friend Lord Harris said, this has led to enormous fears among police staff, which is a problem. We should not be increasing insecurity among the people working in the policing environment.

I am almost led to make the point that while the noble Lord, Lord Bassam, and I do not always agree on things, we have one thing in common; both of us, every now and again, are less than fulsome in our praise of the Home Office—rightly or wrongly. I have great concerns about this legislation and what has been drafted. That might not be the fault of the Home Office, but somewhere along the line there are problems with this.

Because of that, the Minister will know that I have written to her in conjunction with my noble friend Lord Harris and the noble Baroness, Lady Harris, to try to put our concerns on the record. We are looking for a meeting with the Minister to try to thrash all this out. It is an extremely difficult and complex area, but it is an important area. If we get it wrong there will be a big impact on a lot of people who might suffer as a result. We want to avoid that. In her response, will she let us know the timescale for her reply to our letter and whether there is a possibility of talking about this in more detail? This would be a productive area to explore further.

[Lord Hunt of Kings Heath]

My Lords, before the Minister responds, I want to thank my noble friend Lord Harris, who made a powerful speech, and echo what the noble Baroness, Lady Henig, just said. Although the Government have responded to a number of concerns, which is welcome, so far there has been no real recognition of some of the risks of the governance structure that has been put in place. Whether that is because the government lack confidence in it and are therefore not prepared to engage or whether they really do not understand the legitimate concerns, I do not know, but I am puzzled by the response. I know that if I, as a government Minister, proposed something like this, the Conservative Opposition at the time would have attacked very forcefully this kind of proposal.

The corporation sole model is flawed for the reasons that my noble friend gave and in relation to the issue of staff and the bizarre process, now, of staff transfers between the PCC and PCP—with all the uncertainty that that raises. It renders me almost speechless to understand that this bizarre corporate structure is being proposed at a time when the police service is going through 20 per cent cuts. There is a reduction in the number of police officers and we know that some of the most experienced police officers were retired because that was the easiest thing for chief constables to do. We know that chief constables are being taken off the front line and put into the back office because back-office staff have been made redundant.

I pose my only question rhetorically: when will another police reform Bill have to be put before Parliament? If we cannot have pilots, I suspect that problems will arise within about nine months of elected police commissioners coming into being. The public will have serious concerns in the huge powers being given to individuals. Then the noble Baroness will bring forward a Bill to put right the problems that are being identified as we go through your Lordships’ House. If only the Government would pause for just a little time to reflect on these concerns.

[Baroness Browning]

My Lords, it is quite right that I have received a detailed and lengthy letter from the noble Lord, Lord Harris, the noble Baroness, Lady Henig, and my noble friend Lady Harris. I am of course happy to meet them to discuss the contents. I have asked officials to draft a reply, which I have yet to see—it has only been received recently. I will do my best to speed that up as much as possible now that we are on Report. Some of the issues raised in that letter are of a very technical nature so I am not able to respond to it from the Floor of the House tonight. I hope that they will accept that I will try to get a meeting organised. I understand that there are issues around this. People want to feel that they confidently understand the position if they are relaying it to third parties.

I begin with this question of the corporation sole. One thing that the Bill seeks is to give chief constables the opportunity to employ their staff. That is at the heart of operational independence. Chief constables will welcome the fact that they have that control. In order for them to do so and also carry out other functions that involve resources, it is necessary for them to be a corporation sole. I remind the House that a corporation is a body that has its own legal personality, distinct from that of its members. This means that a corporation can own property, enter into contracts and take part in legal proceedings in its own capacity. Its assets, rights and liabilities are those of the corporation rather than of its members. Typically, corporations have more than one member. These are of course known as corporations aggregate. Local authorities are one example. However, corporations can consist of only one person—known as the corporation sole. This is so that they can carry out those same transactions that a corporation can carry out—but it is not the individual personally who has the legal responsibility for that, it is in their role as the corporation sole. It would be quite inappropriate—for example, in the case of employment contracts—for the chief constable to personally enter into an employment contract with each and every one of his employees. As a corporation sole, he then has that legal position, rather as a corporation in commercial terms.

[Lord Hunt of Kings Heath]

I am not quite sure how this works. Does the chief constable of the PCC have to divide their head into two? I understand what the Minister is saying in terms of legal definition but at the end of the day the fact is that the corporation sole is the same person as the individual. Does she not see the huge power that is being given to individuals without any corporate governance structure around it? The House has rejected the sensible idea of non-executives. Does she not see that that is open to abuse? The world is full of examples of how, where individuals have huge power without checks and balances, it leads to one thing: corruption.

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[Baroness Browning]

My Lords, I am grateful to the noble Lord. I am not a lawyer, as he knows, but I have in a previous existence been a businesswoman, so I am used to dealing with corporate matters per se. Therefore, I feel that I have a clear understanding of what the provision is trying to do.

The amendments by the noble Lord, Lord Harris, to Clauses 5, 19 and 20 and Schedule 16 would limit the police commissioner’s status as a corporation sole to employment purposes only or, alternatively, remove the corporate status entirely. Instead of a corporation sole, the amendments would allow PCCs to delegate functions to a chief officer, which the Bill currently prohibits.

The noble Lord has asked that Amendment 84 be added to this group. I think that the intention of Amendment 84 is to discuss the ability of the PCC to delegate to the chief constable. I get the point that he is making, to get rid of the status of corporation sole and reintroduce the idea of delegation of functions from the PCC to the chief as is the case with the police authority and the chief. This continues the severe lack of clarity between the bodies that results in poor accountability. As I have just said in the beginning of my remarks, it is important that there is clarity and separation between the two. The amendments to Schedules 4 and 16 would remove the requirement for the commissioner to have a qualified chief finance officer on his or her staff.

I will address the amendments on corporations sole first, but I have to say to the noble Lord, Lord Harris of Haringey, that I do not quite follow his concerns about the medieval basis of this. In this country, we have an understanding of the common law, which is at the heart of our criminal justice system and has been developed over hundreds and hundreds of years. The fact that something has a long history does not necessarily mean that it is not functional. I have to tell the House—and I must admit that I was rather surprised to find this—that I am a corporation sole, as a result of being a Minister of State who is able to sign off public expenditure. I have a particular personal interest now in making sure that I understand every single aspect of this role, so I can assure noble Lords that it is not something that would be regarded as archaic or medieval. I do not see myself in my role as a Minister of State as archaic or medieval. At the same time, we should not denigrate this role, which is widely used—we have already had some examples of it—just because it comes from our ancient history.

The Government are clear on our need to establish chief constables as corporations sole. It is that legal status that allows them to employ staff in their official capacity—a vital function in the context of providing greater autonomy over the day-to-day management of the force.

During our Committee debate, the noble Baronesses, Lady Henig and Lady Hamwee, and the noble Lord, Lord Shipley, also tabled amendments to limit the ability of a chief officer to enter into contracts so that it applied to employment matters only. These amendments would have removed the chief officer’s ability to enter into other contracts and agreements unless the chief officer had obtained the PCC’s permission to do so. The Government recognise fears, which have been expressed, that we may have given chief officers too much unfettered power. We agree that the powers that we are giving to chief officers, along with their corporate status, should be subject to appropriate safeguards. We agree that to give chief officers an unfettered power to enter into contracts and agreements, potentially committing the force to multimillion pound deals, does go too far.

In government Amendments 13, 15, 33 and 34, we still believe that in the interests of flexibility, chief constables should be able to enter into contracts other than simply those in relation to the employment of their staff, but we believe that it should be subject to a requirement to obtain the authorisation of the PCC. We believe that there can be flexibility in this; the authorisation could be given in general terms—for example, a PCC could give a general consent for a chief constable to enter into any contract in relation to a particular kind of service, such as provision of forensic services, which are often required as a matter of urgency in an investigation. Or the PCC could give a general consent for the chief constable to enter into any contract with a value less than a specified amount.

[Lord Hunt of Kings Heath]

I realise that the Minister is introducing an amendment at this late hour and that this is our only opportunity to discuss it, but the provision gives huge power to the police and crime commissioner. It gives a total hold over the chief constable in budgetary terms. I know that there is some tension here between those who think that that is a right way to go and those who do not, but what is clear is that the PCC is in total control. This amendment actually adds to that. That is why it would have been much better for the Government to have constructed a corporate governance model around the chief constables which would have allowed them to have much greater freedom over their own budget. In essence, the construct here is that the chief constable will become the deputy to the PCC. I wish that the Government would come clean on this.

[Baroness Browning]

My Lords, that absolutely is not the case because we have listened carefully to what noble Lords have said on this matter. Concerns were expressed, which we looked at carefully, and we have tried to strike a balance here. If I look at the current situation in police forces, in some forces—not all, I hasten to add—it is the practice for the annual budget to be identified and handed over in advance at the beginning of the year. We do not believe that is an acceptable practice at all. We have therefore tried to find a way in which we can enhance the autonomy of the chief constable but at the same time, particularly bearing in mind that the biggest part of the budget will most likely be the employment or staffing budget, make sure that with these powers the chief constable has some checks and balances in here.

Again, on the working relationship with the PCC, one would expect these matters to be discussed so that they could make sure that there were no problems. I have just described one example. It would be quite inappropriate for the chief constable to constantly have to keep going to the PCC to get authorisation for services that are clearly needed at short notice. The chief constable would know exactly what sort of services they were and in initial discussions with the PCC would say, “Look, these are the things that we need to access rapidly. Can we come to an agreement?”, and draw up their own needs, together with the PCC. That would be at the heart of the relationship between those two people.

I believe that in putting in some checks and balances we have gone a certain way to addressing the concerns that were expressed by Members of this House, without constraining the chief constable in a way that meant it would affect them operationally. For example, the PCC could give a general consent for the chief constable to enter into a contract with a value less than a specified amount. If they came to those agreements at the beginning of the contract, this would almost certainly reduce the bureaucracy required. The important point is that the PCC would have control over what the chief constable could do, in the same way that the chief constable can only act, at the moment, within the scope of the delegated authority given by the police authority. It is not as though chief constables have a completely free run on these matters at the moment with police authorities.

[Lord Hunt of Kings Heath]

My Lords, what is now becoming clear is that political control is to be exercised over the budget by one person, the elected police and crime commissioner, without any effective corporate governance at all. That is the problem with the corporate sole: it is the same person. Of course, I understand that there is the entity of a corporate sole and the individual, but they are the same people. In a sense, the noble Baroness has said, “We have rebalanced this because of concern that the chief constable has too much power over the budget in the terms of the original Bill”, but we are now transferring that to an elected party politician without any corporate governance safeguards whatsoever.

[Baroness Browning]

My Lords, if in practice the PCC discharged his or her duties in respect of coming to a practical and non-bureaucratic agreement with the chief constable, I would expect the panel to talk immediately to the police and crime commissioner about the way they were conducting themselves. When the noble Lord talks about checks and balances, this is exactly the sort of thing where one would expect the panel to call that commissioner to account. It would soon become known to the panel if the arrangement between the PCC and the chief constable over these financial arrangements and budgets was causing such a constraint that it was affecting operational activities.

It is not that this is a completely open situation, where nobody would call the PCC to account. Later in the Bill, we have tabled additional amendments that give far more access for the chief constable to the police and crime panel, which would be a very good thing. I am sure that if the chief constable thought that the financial arrangements with the PCC were affecting operational independence or causing problems, they would soon make that known to the police and crime panel.