Police Reform and Social Responsibility Bill

Lord Hunt of Kings Heath Excerpts

Monday 11th July 2011 Lords Chamber

[Baroness Harris of Richmond]

My Lords, I have a couple of brief points to make about Amendment 102, and particularly Amendment 104 to which I have added my name. First, I welcome the fact that the Government have shown that they are willing to listen to some of the concerns expressed in Committee and I am genuinely pleased that they have moved to two-thirds the majority required to exercise a veto. I am inclined to agree with the noble Baroness, Lady Henig, that a simple majority might be even better. It would certainly strengthen the role of the police and crime panel, which I think we all agree is essential. Hopefully, when taken in conjunction with earlier amendments about a more collaborative approach, this would guard against too capricious an attitude by the panel, having helped develop the proposals in the first place. I support this amendment but I am concerned about the issues raised by the noble Baroness, Lady Henig, about the relationship between this Bill and the Localism Bill in relation to the precept and referendum arrangements. I agree that this needs to be clarified. I hope that my noble friend the Minister will be able to provide reassurance on this point.

[Lord Hunt of Kings Heath]

My Lords, we have had a series of debates during the passage of this Bill about the role of the police and crime panel in scrutinising the performance of the police and crime commissioner. The Minister herself has emphasised on a number of occasions the importance of the panel in doing that.

For these panels to do their jobs effectively, they surely have to have a certain amount of leverage. This Bill in effect gives them only two levers; they can veto the appointment of a chief constable, and they can veto the precept that the police and crime commissioner wishes to set. Of course, on other matters it can be consulted and there can be dialogue, but it is very clear from the Bill that the elected party political commissioner can ignore completely any input from the panel unless it exercises the veto. In the past few days we have seen one of the products of a weak regulator, the Press Complaints Commission. That surely shows the problem of having of weak regulators with very few levers. My concern with these new arrangements is that we are establishing police and crime panels inevitably to fail because their influence over elected police commissioners is likely to be limited. The veto in the original Bill was set at a very high level indeed, with a 75 per cent requirement of the members to vote in favour of veto. The Government hinted in the other place that they would be prepared to reduce it and we now see the product of that in the amendment that I am sure the noble Baroness will speak to in a moment.

The question is whether a two-thirds veto is sufficient. Like my noble friends, I do not think it is. To be effective, the police and crime commissioner must surely feel or fear that if he or she were to go too far there would be a risk that the panel would veto his or her proposals. I am speaking here about the precept.

To get a two-thirds majority of the members still places the bar at an impossibly high level. That is why I very strongly support my noble friend and I have tabled an amendment along the same lines calling for a simple majority of those present and voting. The phrase “of those present and voting” is well known to all noble Lords who have taken part in public life. Remarkably, it is not to be found in the Bill. The veto requirement refers to the members of the panel. I very much support my noble friend Lady Henig in wishing to ensure not only that a simple majority is required but that it should be of the members present at such a meeting. I have also laid an amendment to Amendment 103 of the noble Baroness, Lady Browning, so even if the House settles on two-thirds as the majority figure, it ought to be of those members present and voting.

Maybe I have confused the wording of the amendment because I see the noble Baroness perhaps assuming that that is what it says. My reading is that it is two-thirds of the membership.

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

Yes.

[Lord Hunt of Kings Heath]

It is. Why is that? It is normally of those present and voting. It seems to me that simply by not being there you count as an assenter—a dissenter, if you like, from a proposal to veto a precept. It seems rather an extraordinary state of affairs.

I refer the noble Baroness to later amendments where the Government propose that an elected mayor within the area of a police force becomes members of the police and crime panel automatically. I am not arguing about the principle, but elected mayors are going to have many other responsibilities apart from serving on police and crime panels. One can think of a number of metropolitan areas so it is quite likely that under the noble Baroness’s amendment a considerable number of elected mayors will serve on the panels. However, there will be circumstances in which such people will not be able to be present at a meeting of the police and crime panel and because of the noble Baroness’s amendment the numbers relevant to the veto are the members rather than those present and voting. It seems to me a rather extraordinary state of affairs that simply by being away or being ill you add to the threshold that would have to be reached if a veto were to be exercised. I hope the noble Baroness will be prepared to give that point further consideration. It is a very odd state of affairs.

[Baroness Hamwee]

My Lords, I very much welcome the reduction from three-quarters to two-thirds. I think I said at an earlier stage that it can be a bit disconcerting to see that a Minister has her name to the amendment you thought you had tabled. We came in as back-up on this occasion, although clearly on the same day. I welcome it even though it probably only makes a difference of one individual. However, perhaps as important as the proportion is whether it is a proportion of the whole membership or of those present—I will come back to that in a moment—and more important than both is what can be vetoed, which we have debated and will continue to debate.

I know the Government take the view that a simple majority would detract from a commissioner’s accountability through the ballot box. There is a subsidiary argument the other way that members of the police and crime panel indirectly elected are expected by their own electors to have perhaps a greater voice than can be exercised when the threshold for the veto is set so high. As I say, that is subsidiary; it is a different position from the commissioner, but one that may be a little confusing to the electorate of the councillors who make up the panel.

It is right and proper that the calculation should be made based on those present, but I have a couple of questions. I do not know whether this is going to cause the noble Lord, Lord Hunt, a problem, as I am speaking after him, but what would happen to abstentions under his amendment? Where do they count? Some of us—before I get teased about this—are used to abstaining in person in this Chamber. But we need to sort out—

[Lord Hunt of Kings Heath]

It may help if I intervened at this stage. My assumption in drafting “present and voting” is that you have both to be present and to vote. I do not think that abstention can be taken as a positive vote. I hope that is helpful.

[Baroness Hamwee]

I shall ponder on that. My other question, which my noble friend Lord Shipley may have asked on a previous occasion, is whether, given the importance of the numbers, the Government anticipate providing through regulations procedures for substitutes for members of the panel. Furthermore, is it intentional on the part of those who proposed these amendments that they apply only to the precept and not to the appointments, which is the other candidate for veto? Whatever we end up with should stay the same. I think it is right that a member can affect an outcome by staying away, and I hope that my noble friend the Minister can reassure the House on that point.

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Moved by

[Lord Hunt of Kings Heath]

103A: Schedule 5, After “two-thirds” insert “of those present and voting”

[Lord Hunt of Kings Heath]

My Lords, I was rather disappointed that the Minister did not come back to the point about why the vote should not be of those present and voting. That is a perfectly normal, appropriate action and standing order for public bodies. I see no reason why it should not relate to the precept. The noble Baroness, Lady Hamwee, was quite right in spotting that I should I have put down a similar amendment to the Government’s proposal in relation to the appointment of a chief constable. I have no doubt that that can be dealt with at Third Reading. The substantive point is that there will not always be huge amounts of time—you cannot guarantee that. By not attending, one is effectively voting against the veto. I do not think that that is right. I therefore seek to test the opinion of the House.

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[Baroness Farrington of Ribbleton]

My Lords, I am slightly confused now. Those of us who argued for the “of those present” amendment now see the noble Lord, Lord Shipley, talking about the need for substitutes, without which the right result may not come out. That is a little confusing.

I am standing up because I have a déjà vu about a déjà vu. I remember advising the Minister to talk to the noble Lord, Lord Howard of Lympne, about the way that he achieved the political balance that her Bill seeks to achieve but I believe, from the contributions today, does not achieve. Like the noble Lord, I, too, live in an area where the police authority has a lot of different local authorities—Essex also has many different local authorities—which is a situation that arises across the country. However, the noble Lord, Lord Howard, as Home Secretary, spent a great deal of time achieving a balance to counteract political dominance of police authorities that was unrepresentative of the local community, and ensuring that no one party—rather than no one person—could dominate and pervert the views of the local area.

The proposal before us today puts most of the power in the hands of an individual who may have been one of the people whom Michael Howard, as he was in those days, thought was unsuitable to dominate what was happening in policing, backed up by a system on the panel that will not give diversity. I hope the noble Baroness will be able to assure me that this proposal, rather than my noble friend’s amendment, carries the Michael Howard seal of approval to ensure balance. Although I did not always agree with him when he was Home Secretary, I recollect that he worked very hard to do something that the present Government are busily unpicking. They ought to stop it.

[Lord Hunt of Kings Heath]

My Lords, my noble friend Lady Farrington takes us back to the core of the debate. Of course, the question is: which Michael Howard? I very much agree with my noble friend that the problem we face is that we do not accept that police authorities have failed in the way that the Government say they have. We also do not accept that the police authority should not be the model that might be used to develop the police and crime panels. These issues of political balance and the role of independent members are very important. I should have thought that the model of the police authority was one to be followed.

I know that the noble Baroness has tabled her own amendments. Their intention is to keep the same model as is currently in the Bill but to allow areas to increase their representation by co-opting additional members from existing local authorities or additional independent members, with a cap of 20 members in all. I welcome that as far as it goes. My concern is that I am not sure it is entirely appropriate to give complete discretion to the police and crime panels themselves. If we are preserving any remnant of a tripartite system, it is right for the Home Secretary to lay down through legislation certain minimum requirements for police and crime panels, such as that there should be political balance and a proportion of independent members. That is why I very much warm to my noble friend’s amendment.

The noble Lord, Lord Shipley, raised the issue of substitutes. The problem is that the House has now decided, by voting, that the decision will not be that “of those present and voting”. However, the House has not solved the evident problem that, by making sure the veto can be used only in relation to the number of members, there are all sorts of reasons why it will be almost impossible ever to use it. One thinks of illness. I understand that there is no proposal for how to deal with that. What happens if the local authority is setting its own precept at the time that the panel meets and a member of the panel has to attend? In some areas, we are talking about a large number of local authorities. The idea that a noble Lord can come to the Dispatch Box and say, “Oh, but the meeting time with the PCP will be known and, therefore, no other authority will meet”, is unrealistic. In some areas, we will have a number of elected mayors—the Government are forcing referendums on 11 of the largest cities in England. Presumably, if the government amendment is passed, there will be elected mayors in other cities and boroughs who will already, and automatically, be members of the panel. You could have a situation whereby the attendance record at a meeting of the panel is quite low. It would, therefore, make it almost impossible for the veto to be exercised.

The Government and the House have now decided to reject a sensible amendment by which the veto requirement should be “of those present and voting”. I agree with the noble Lord that this matter has not satisfactorily been resolved. The Government will have to think about this matter between now and Third Reading, because this simply should not stand as it currently does in the Bill.

[Baroness Browning]

My Lords, I must confess, for the first time in taking this Bill through the House, that I am genuinely disappointed, because in the government amendments in this group we have tried really hard to address concerns across the House that were raised in Committee about giving more flexibility to achieve balance on the panel. As we know from previous debates, that balance ranges across geography, politics, gender and ethnicity. Of course, among the group of people who the panel can co-opt it is sometimes necessary, because of local circumstances, to co-opt people with particular expertise in an area who will be a useful addition to the panel. By raising the threshold of the panel size to 20, I have gone far in excess of anything suggested in Committee in order to provide those additional co-opted places on the panel so that these matters can be addressed.

Let me establish for the record that paragraph 30(3) of Schedule 6 already places the same duty on a panel to ensure that it represents the political make-up of the force area. This, of course, achieves exactly the same political balance as the current police authority regulations do. Therefore, while there is more scope for these additional nominated or co-opted people to be invited to sit on the panel—there is nothing mandatory about this; the panel can decide whether or not it wishes to go up to that threshold of 20—we have retained political balance based on what already happens in police authorities. The noble Baroness mentioned the attempt by the noble Lord, Lord Howard, to do that. I hope she will accept that we have not departed from that principle in the Bill.

However, I was particularly concerned that noble Lords, in speaking to their amendments, did not seem to be aware that it is not mandatory for co-opted members to come from local authorities. They can, if the panel so chooses, but they need not come from local authorities at all. Later, when I speak to my amendments, I will flesh out a little the fact that where the panel opts to co-opt more people on to the panel to achieve diversity, gender balance and ethnicity balance, the Secretary of State is required to approve these co-options because the panel will, in making that submission to the Secretary of State, be required to demonstrate why these particular people are being co-opted on to the panel. At that point, I would expect there to be a case for balance across a range of gender, ethnicity and expertise—whatever the thinking is behind the panel wanting to make these recommendations. The Secretary of State will then have the opportunity to see that the panel is not filling up those places just with chums—people of a like-minded persuasion or of the same political party. The Secretary of State will want it to be clearly demonstrated that the panel has seriously considered who it needs to add to give a balanced mix to enhance its functioning and to give fairness across the piece.

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[Baroness Browning]

My Lords, perhaps the solution to that is that PCPs can also set out their own rules and practices for all other business and procedures under Part 4 of Schedule 6, at paragraph 24. There is sufficient flexibility already in the Bill, combined with raising the threshold to 20 members, that gives the panel the opportunity to get the right balance that this House has called for. I genuinely mean this.

[Lord Hunt of Kings Heath]

The problem is that there is too much flexibility. The cases have been quoted to the Minister: there will be panels where the political parties in control of the councils will be almost all of one party. The Minister is saying that you can rely on the panel to which these people are appointed to then ensure greater impartiality. This is why we know it will not work. I have said again and again that the Minister will come back in a couple of years’ time with another Bill to put it right, because what she is in fact doing is leading not just to the politicisation of the police commissioner but also the panel, in a way that will be destructive because it does not guarantee either balance or having truly independent members on it.

[Baroness Browning]

My Lords, again I am very disappointed that the House is not able to identify the flexibility that the increase in the number on the panel offers. I want to make some progress now. I propose to place in the Library of the House as soon as possible—I hope within the next 48 hours—a comparison of the current system and the new system and how it will affect each police authority in the country. If noble Lords have a chance to analyse that, they will see that the flexibility is there. I take the point of the noble Lord, Lord Hunt of Kings Heath, that I am now creating too much flexibility in the Bill. The inference I have taken in previous discussions was that noble Lords wanted more prescription in the Bill and not flexibility. I believe that these matters are best decided at a local level, case by case, giving the power to the panel to decide what is needed. I am genuinely disappointed that that point of what I believe is a very generous amendment on the part of the Government has not been accepted.

Before I turn specifically to the amendments before us, my noble friend Lord Shipley mentioned deputies and how the panel conducts its business. We can consider the views that he has raised today as the Secretary of State has power in Schedule 5, set out by regulation, to see whether in regulation we can address the problem he has just identified. I will liaise with him on progress specifically on that matter.

Amendments 106, 116, 121, 123, 132A and 140 seek to vary the composition of the police and crime panel. Although I have heard the views put forward again today, I believe the series of government amendments that have been tabled will address many of the issues noble Lords have been concerned about, and I invite noble Lords who have tabled amendments in this group not to press them.

Amendment 140, from my noble friends Lady Hamwee and Lord Shipley, seeks to limit the Government’s power under paragraph 32 of Schedule 6 to make regulations applying local government legislation to police and crime panels. As I have said, we will take a look at what can be achieved in regulation but the amendment specifically would mean that the power could only be used to the extent necessary to apply the relevant legislation. I can reassure noble Lords that this power will not be used to a greater extent than is necessary. I will say more about it when I come to the Government’s amendments.

Government Amendments 120, 122, 124, 126 to 128, 130 to 132 and 134 to 137 seek to address, as I have mentioned, the composition of the police and crime panel. I thank—and they may be surprised to hear me say this—my noble friends Lord Shipley and Lady Hamwee and, if it is not going to ruin his reputation, the noble Lord, Lord Beecham, for their input. The noble Lord, Lord Beecham, looks horrified. I have tried to listen, across the House, to the points that have been made. There have been some very good points made, particularly in Committee, and I have tried to incorporate them into the amendments I have tabled.

I fully recognise the need to ensure that the police and crime panels are able to represent geographically large and diverse communities. I also understand the significant challenges that local authorities face in achieving this under current provisions in the Bill. These provide for the inclusion of district councils, which previously have not been recognised in their own right, which reflects the Government’s localism agenda but leads to potential issues relating to proportionate representation.

Fundamentally, the Government still believe that the model set out for police and crime panels in the Bill is entirely appropriate and provides for a clear process and structure in establishing such panels. I believe we have created a structure that is sufficiently flexible to meet local structures while being the right size to avoid being expensive and a bureaucratic burden. However, the Government propose to allow areas to opt to increase their representation by co-opting additional members from local authorities—they do not have to come from local authorities—or independent members.

It is still important not to encourage oversized and unwieldy police and crime panels and it was for that reason that the cap was set at 20 members. For example, Devon and Cornwall’s police and crime panel will have 15 members under the provisions originally set out in the Bill; with these new provisions it will have an option to co-opt a further five members. This provision could therefore be used to enable the panel to reflect more directly the geographical representation of the force area. I remind noble Lords that in the Devon and Cornwall force area, Cornwall as a county is a unitary authority. However, we will not prescribe this; increasing co-option will be a local decision. The Secretary of State will retain a role in agreeing to any proposed increase in the number of co-optees, merely to ensure that local areas have considered all the issues arising from their decision, including other areas of balance.