Police Reform and Social Responsibility Bill

Lord Hunt of Kings Heath Excerpts

Wednesday 20th July 2011 Lords Chamber

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

I would like to speak to the government amendments in this group. The intention of Amendment 1 is to bring the provisions of the London Assembly police and crime panel’s scrutiny of the police and crime plan into line with the provision for panels outside the capital. For forces in England and Wales outside London, the PCC must respond to any reports or recommendations made by the panel on the draft plan and publish the response. This amendment will put those provisions into the Bill for London.

Amendment 2 was tabled by the Government at Report and was debated on 4 July. Unfortunately, due to an error this amendment was not moved formally. The Government have sought to resolve this by tabling the amendment again. I hope noble Lords will agree that the substantive issues behind it were fully debated on the previous occasion, and that there is no need to delay the proceedings of the House by going through them again. Noble Lords will recall that the corresponding provision for London was moved and agreed by the House.

Amendments 16 and 17 are minor and technical amendments to ensure that PCCs and the Mayor’s Office for Policing and Crime have the same powers as police authorities. Amendment 16 will give PCCs and the Mayor’s Office the ability, subject to ministerial approval, to compulsorily purchase land, a power police authorities currently have. It was simply an error that this power was not included in the Bill at the outset.

Amendment 17 will exempt the Mayor’s Office for Policing and Crime from some of the provisions of the Landlord and Tenant Act 1987 which require landlords to offer residential premises to their tenants before disposing of them. Police authorities outside London have this exemption at present, and the Bill replaces the reference to police authorities in the 1987 Act with a reference to PCCs. However, when the Metropolitan Police Authority was created by the Greater London Authority Act 1999, it was not given this power. It seems that this was an oversight in the legislation. This amendment will correct that anomaly and apply the exemption to both PCCs and the Mayor’s Office. I beg to move.

[Lord Hunt of Kings Heath]

My Lords, first, I welcome the amendments that the noble Baroness has tabled. I have an amendment in this group, Amendment 3, to which I would like to speak in particular. I am sure that in the weeks, months, and indeed years ahead the events of the last few days will be analysed and researched, and many conclusions will be drawn from them. These events have shown the risk of the potential politicisation of our police arrangements through the close involvement of politicians in policing matters. That is why I worry about some of the impact of this Bill, and why I think that my amendment is important in seeking to strengthen the amendment of the noble Baroness. Let me say at once that I very much welcome that amendment; I just want to make it a little bit more effective.

I want to go back to something I said in response to the Statement the noble Baroness made two days ago—it seems like years. We have seen some of the potential implications of importing American-style elected police and crime commissioners to the UK. The nearest we have to that is the London mayor, and it does not seem to have prevented a lot of the problems that one can see arising. It is well to remember that the mayor, Boris Johnson, when originally asked about phone-hacking allegations, described them as codswallop. It is worth reflecting on what support the Met would have received from the mayor if they had actually decided to undertake a vigorous operation when questions were asked about reopening these issues a couple of years ago.

My concern is that having an elected mayor or an elected police and crime commissioner inevitably draws those people into making comments about operational policing matters and seeking to influence the chief constable. I do not see how it can be avoided. When a person is elected as police and crime commissioner for the West Midlands, for example, they will be asked questions about running issues which will inevitably go into not only the operational efficiency of the force, but specific operations. My concern is that those elected police and crime commissioners will be drawn into commenting.

In London, the mayor is now going to be on his third commissioner. My concern is that this will be replicated throughout the country. Let us take an elected police and crime commissioner, representing a party that is perhaps not very popular in the public opinion polls and which faces elections in a year’s time. What better way to boost one’s prospects than by picking a fight with the chief constable and essentially requiring them to retire or resign? It is one thing for chief constables to be properly accountable—that is absolutely right—but my concern is that they are going to be very insecure people, and will therefore be more deferential to the elected police and crime commissioner than is healthy for the system.

Noble Lords know that I have a health service background. There was a time when the average length of stay of a chief executive in the NHS was about 2.8 years. The instability that that causes does great harm to public services. I believe we are building in huge instability and real threats of politicisation. I accept that this is the way the Government want to go, but I think it is important that we build in safeguards.

I welcome the amendment of the noble Baroness. I think the name of the noble Lord, Lord Dear, may have been on the amendment that was not moved on Report, but I would like to go further. It is important that police and crime panels are given support in exercising their functions of scrutiny on behalf of the public. Specifying in the amendment that the functions of the police and crime panel for a police area should be exercised with a view to,

“upholding the integrity, impartiality and effectiveness of the police force for that police”,

would be an important safeguard and provide reassurance. Being in primary legislation, these words would give a very clear message to police and crime commissioners, chief constables and panels that we want a police force that is impartial, has integrity and does right by the public.

[Lord Cormack]

My Lords, the noble Lord, Lord Hunt, has made some valid and important points. I remind the House that the Bill to which we recently gave a formal Third Reading is in fact very different from the one that came from the other place. It is the expectation of most of us that the other place will indicate its dissatisfaction with the major amendment made in Committee by this House. Obviously we must wait and see, but I say this to my noble friend the Minister. The Government will have to look at this Bill again because of that amendment, but because of what has happened over the past three weeks, to which the noble Lord alluded in his speech, surely it is necessary to enact a Bill that truly deals with all the problems, ones that were not foreseen—I blame no one for that—when the Bill was first placed before Parliament. This is a golden opportunity for the Government to come back to us with amendments that recognise that there are areas of policing which are not adequately dealt with in the current Bill. Certain problems have been highlighted in recent days which it is incumbent on Parliament to recognise and adequately to legislate for.

My plea to my noble friend the Minister, who has shown herself to be painstaking, thorough and responsive to the feelings of the House, is that she should talk to the Home Secretary and her other ministerial colleagues with a view to ensuring that when the other place comes back to this House, one would assume either in September or October, we will have before us amendments which deal fully with many of the issues that initially provoked the noble Baroness, Lady Harris of Richmond, to move her amendment, and that subsequently have built upon that feeling of unease. I do not seek lengthy Divisions this morning, but an assurance that the final shape of the Bill proves to be up to the circumstances that we are now aware of.

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[Baroness Browning]

I understand that point and it is certainly something that we will look at in terms of regulations. At the moment, I cannot say how that will be described.

Perhaps I may come back to my noble friend Lady Hamwee’s point and concerns. I have to say to my noble friend that we feel that the Bill as drafted and amended provides the checks and balances that she is asking for.

[Lord Hunt of Kings Heath]

I am extremely puzzled. In my reading of the Bill as amended on Report, these words already appear. If I turn to page 20—

[Baroness Browning]

Did the noble Lord say 20 or 22?

[Lord Hunt of Kings Heath]

I think that it has been cleared up. As printed, the Bill contains an error, because the wording of her amendment appears in the Bill. The people who dealt with it anticipated that the noble Baroness would move the amendment on Report. I gather that there is a correcting sheet, which none of us seems to have, pointing that out. I have cleared it up to my own satisfaction, if no one else’s.

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Moved by

[Lord Hunt of Kings Heath]

3: Clause 29, line 3, leave out “supporting the effective exercise of the functions of the police and crime commissioner for that” and insert “upholding the integrity, impartiality and effectiveness of the police force for that police”

[Lord Hunt of Kings Heath]

My Lords, I am grateful to all noble Lords who have spoken in this debate. I will briefly respond to the noble Baroness. She said that the system is not currently working in London, but what I take from the current debacle is the dangerous cocktail of politics and policing being mixed together. She has not answered the specific concern of the current mayor, who is shortly to work with the third commissioner so far in his single term of office. My concern is that in order to deal with an issue of accountability, the architecture of the Bill brings with it many perverse incentives.

[Baroness Browning]

I am grateful to the noble Lord for giving way; I did not pick up on this point. I would point out that, despite perceptions, the current mayor has not fired anyone and does not currently have the power to do so. It is the Metropolitan Police Authority that has the power to dismiss the Commissioner of the Metropolitan Police. It was suggested that the mayor was responsible for the resignation of Sir Paul Stephenson, but that is definitely not the case, as was said both in his evidence yesterday to the Home Affairs Committee and in other statements.

[Lord Soley]

My Lords, I did not say that he was responsible. I indicated that he apparently supported the suggestion that Sir Paul Stephenson should resign. From what I understand, the mayor said that he did not oppose the offer to resign by those two people. In the case of Ian Blair it was different.

[Lord Hunt of Kings Heath]

The House would not want us to go into the details of the resignations of commissioners. What is clear is that the mayor has had an influence. It shows quite clearly the risks of having party politicians so directly involved. The noble Baroness says that there may not be party politicians elected to these posts, and of course that may be true. I suspect, however, that in the 42 police areas that we are concerned about in my amendment, the great majority will have political labels. We would expect them to carry out their duties without fear or favour but many of those people will be seeking re-election. The point is that their activities will be coloured by wishing to seek re-election.

I agree with the noble Lord, Lord Dear, that to be a chief officer of police is a lonely business at any time. While I certainly believe chief constables need to be held to account, they also need support. My concern is that elected police commissioners will not be in a position to give the kind of support that is necessary to officers who have to bear those heady responsibilities.

The noble Lords, Lord Cormack and Lord Newton, made very important points and asked the Government to reflect. It may be that in the Statement to come we will hear a little more about how the Government will reflect. I hope that they do. Ping-pong can be flexible but there are limits. The best way to ensure that the other place and the Government properly consider the issues surrounding the responsibilities of police and crime panels is to send my amendment back to the Commons; it will then put the issue in play.

I do not agree with the noble Baroness that my amendment takes the PCP beyond its current responsibilities into direct intervention. No, it gives strong signals to the police and crime panel about the impartiality and integrity of the police force. They are there to scrutinise through the police and crime commissioner. That would be a very important signal for this House to give. I beg to move.

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Moved by

[Lord Hunt of Kings Heath]

8: Clause 63, page 41, line 29, leave out subsection (2) and insert—
“( ) The panel may only appoint a person under subsection (1) if that person is—
(a) a member of that police and crime panel; and(b) a member of the relevant local authority.( ) In appointing an acting police and crime commissioner under subsection (1), the relevant police and crime panel must stipulate the maximum length of time that the person may hold that position.”

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[Lord Hunt of Kings Heath]

My Lords, we come to a matter which has been discussed both in Committee and on Report. This relates to the proposal in the Bill that, if for whatever reason the police and crime commissioner has to give up office or is indisposed, the police and crime panel can appoint an acting police and crime commissioner who shall be a member of the staff of the police and crime commissioner. Noble Lords will know that I have been very concerned about the possibility of a staff member of the police and crime commissioner assuming such great responsibility. The noble Baroness said that she was still considering this matter, and that we could bring it back at Third Reading. I am hopeful that she will be able to accept my amendment, which ensures that the acting police and crime commissioner has to be a member of the panel and an elected politician. This follows on from the amendment that the noble Baroness moved at Report, which allows for independents to be appointed to police and crime panels. I do not think it appropriate for those people to become acting police and crime commissioners, which is why I have drafted the amendment in this way.

If I may say so, this is meant as a helpful amendment, to find a way through. I have detected some considerable support around the House for my view that it is not right for a staff member to assume such great responsibilities, including issues around the hire and fire of chief constables, in my understanding, and the precept. Surely it is better that an elected politician member of a police and crime panel fulfils that role. I beg to move.

[Baroness Harris of Richmond]

My Lords, I want to say a few words in support of this amendment. I find it completely incomprehensible that anyone would think that it was acceptable to put a politically restricted person in charge of making political decisions, which is the effect of the current proposals relating to deputy and acting PCCs in this Bill. Quite apart from the fact that this would give such a person an impossible technical conundrum to resolve—because a politically restricted person must be politically neutral, and therefore cannot by definition make political decisions—it completely undermines the Government’s own arguments about greater public accountability. It is particularly important that an acting PCC must be able to make decisions as if he or she were the PCC. This includes the key decision about what precept to set if the PCC is absent at that particular time of the year. The PCC’s office cannot not make a decision about this, whether or not the PCC is present, because the police service would be missing up to half its funding the following year if this was so. Not for the first time, I have thought that we were creating an Alice in Wonderland world in this Bill—it is all somehow upside-down.

It is clear to me that an acting PCC cannot be politically restricted. That means that an acting PCC cannot be drawn from the members of the PCC’s staff—which bizarrely now include the deputy PCC, although that is another issue. The obvious place to look is therefore among the members of the police and crime panel, and particularly among the elected members of the panel, if we are serious about a commitment to democracy and accountability. This is exactly what the amendment of the noble Lord, Lord Hunt, stipulates, and I am very happy to support it.

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[Baroness Browning]

The answer is no. I have also been informed that the relevant provision is paragraph 199 of Schedule 16, if the noble Baroness wishes to look at it.

[Lord Hunt of Kings Heath]

My Lords, I do not claim my amendment is ideal but I am trying to put some safeguards into a Bill that I know to be considerably flawed. The noble Baroness says that it would be wrong to replace one mandate by another, on the basis that if the House accepted my amendment and an acting police and crime commissioner had to be appointed, it would be a local authority member on the police and crime panel, and that person therefore would have a different mandate. However, I have always sought to explore how the circumstance would arise in which an acting police and crime commissioner had to be appointed. I do this because you can then see the absurdity of the Government’s position—and it is an absurd position.

Assume that a police and crime commissioner had to step down because that person was unduly and inappropriately interfering in the operational activities of the police and the chief constable. Are we seriously saying that, in those circumstances, that mandate continues—that a member of that person’s staff should be the acting commissioner, able to set a precept? The credibility of such a person would be shot to pieces. The naivety coming from the Government on this just amazes me. Do they not understand that they are creating a situation where it is almost inevitable that some of these elected police and crime commissioners will act wholly inappropriately in interfering in police activities? If only the Government would just pause to reflect on this. In those circumstances, a member of the police and crime commissioner’s staff would, up to a point, undermine confidence in the police. I am very sorry that the noble Baroness is not going to accept my amendment and I wish to test the opinion of the House.

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[Lord Ramsbotham]

I speak particularly to subsection (6) of the proposed new clause, which presents a very neat way out of the issues of the British Transport Police and the British Transport Policy Authority that I raised on Report. In doing so, I thank the noble Baroness, not just for the way that she has conducted this Bill through the House, but also with the speed with which she, the Secretary of State for Transport and the noble Earl, Lord Attlee, responded to the points that I made and had a meeting to discuss them. In subsection (6), it describes the police protocol as,

“a document which sets out, or otherwise makes provision about, ways in which relevant persons should … exercise, or refrain from exercising, functions so as to … encourage, maintain or improve working relationships (including co-operative working) between relevant persons, or … limit or prevent the overlapping or conflicting exercise of functions”.

That seems to be precisely at the heart of the very long delay—10 years’ delay—in bringing the jurisdiction and powers of British Transport Police constables and the definition of their chief officer’s role together with those of the Home Office police.

At Second Reading, I mentioned that there was a certain urgency in this because the transport police have a key role to play not just in anti terrorism but in the run-up to and progress of the 2012 Olympics. Therefore, as I say, something needs to be done quickly. There is a way out if you accept that the British Transport Police and the British Transport Police authority should be included in the protocol to the extent that the annual police plans, which have to be drawn up by the police and crime commissioners, should include the operations of the British Transport Police. You thus get over all the problems associated with them because they have to be resolved with the measure. For example, the licensing issue, which particularly affects transport hubs and is a matter of concern, and the proper licensing of firearms rather than requiring every constable to get an individual one, would have to be done not as separate issues but as part of a plan in every area. I was disappointed to hear that when the British Transport Police raised this at the meeting with the Secretary of State, officials said that it was inappropriate because the protocol applied only to the Home Office police. That is precisely why it presents the ideal vehicle. I hope very much that the Minister will assure the House that that approach will be followed.

[Lord Hunt of Kings Heath]

My Lords, I have an amendment in this group. I thank the noble Baroness for bringing forward her amendment. We have debated establishing a protocol and giving parliamentary endorsement to it, so that is very welcome. I also echo the remarks of the noble Baronesses, Lady Henig and Lady Harris, who expertly identified the flaws in the Bill. I very much support my noble friend’s amendment. I also support what the noble Lord, Lord Ramsbotham, said. He made a very good point. I hope that the noble Baroness will respond to him.

I have a very modest amendment in this group—Amendment 12. The noble Baroness’s amendment contains an order-making power. Essentially, the order-making power applies to the issuing, varying or replacing of a policing protocol. My reading is that that will be a negative SI. I think that it ought to be an affirmative SI. I refer the noble Baroness to the guidance given by the Delegated Powers and Regulatory Reform Committee. It states:

“A supplementary memorandum must be submitted when any Government amendment is tabled which introduces a significant new delegated power”.

I checked last night and I know that her department issued a supplementary memorandum in relation to amendments to Clause 59(2)(c), and that a two-page memorandum has been produced. However, I have not discovered a memorandum issued in relation to this amendment. I hope that the noble Baroness will clarify whether such a supplementary memorandum has been issued.

However, the real point is the following. From all the comments that have been made, right from Second Reading through to today, the importance of this protocol is not in doubt. Given that it is an order-making power, I fail to see why the noble Baroness’s amendment does not refer to an affirmative order. It ought to be an affirmative order to stress the importance of this matter. I hope that the noble Baroness will be able to give me some comfort on that.

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[Baroness Browning]

Amendment 11 would require the Secretary of State to justify the need for police and crime commissioners, the Mayor's Office for Policing and Crime and chief officers of police to be corporations sole, and for the chief finance officers employed by chief officers to be subject to the local government legislation that currently applies to police authority treasurers. The Secretary of State would have to address those matters in a report to be considered by both Houses before the relevant provisions could commence.

I hope that it is clear why the Government believe that it is necessary for PCCs and the MOPC to have corporate status. Police authorities, including the Metropolitan Police Authority, are corporate entities at present. In order to allow them to carry out their functions, the PCCs and the MOPC will have the same functions as police authorities do at present. Turning to chief officers of police, the Government set out the reasons very clearly in Committee and on Report why there is a need for them to have corporate status too. It is simply so that they can employ staff and hold funds in their official rather than their personal capacity. PCCs, the holder of the Mayor's Office for Policing and Crime and chief officers of police will be individuals. That is the essence of the Government’s model for policing governance. It follows that, if they are to have corporate status, they will be corporations sole. This simply follows as a matter of inescapable logic.

I turn to the appointment by the chief officer of police of a suitably qualified chief finance officer with responsibility for making reports. Again, I hesitate to repeat what I have said more than once before, but the Bill creates a model for policing finance that is different from the current system. The Government are clear that chief officers should employ their own staff—a vital process in the context of providing greater autonomy over day-to-day management of the force. As an employer, therefore, for the first time the chief police officer will need to hold substantial amounts of money, and it is vital that there are appropriate safeguards around this. Each chief police officer will need his or her own chief finance officer, suitably qualified to manage the chief officer's affairs. In fact, police forces already have finance directors to do this job. The Government believe that the chief finance officer should be under a statutory duty to make reports where he or she fears the chief officer has made or will make an unlawful decision. Such a report would also go to the PCC and to the chief officer's auditor.

I remind the House that, as I said in previous stages of the Bill, there will not be, and in fact cannot be, any duplication between the role of a PCC's chief finance officer and that of the chief police officer's chief finance officer. The former will have responsibility for money within the police fund, and the latter will have responsibility for the money that has been paid over to the chief officer out of that fund. As such, without a properly qualified chief finance officer—with all the necessary powers and requirements—there will be a significant gap in proper financial propriety.

The Government have been very clear both in this House and another place as to why these provisions are necessary. Amendments to remove them were withdrawn with the House's consent on that basis. We believe that these are necessary measures, and I hope that the House will see that there is a very real need to have quite distinct separation in terms of the financial accounting of the PCC and the chief officer. I invite the noble Lord, Lord Harris of Haringey, to withdraw his amendment. I would say to him and to other Members of the House that I regret very much that we did not have our meeting, particularly on corporations sole, which was in the diary. Unfortunately it clashed with the day on which we had to take emergency legislation through the House. I apologise to noble Lords for having had to cancel that meeting.

As this may be my last contribution on Third Reading of this Bill, I hope that the House will allow me to say some words of thanks to those who have contributed to its smooth passage. I thank particularly the Lord Speaker and Deputy Speakers who have presided, and the clerks and doorkeepers, for whose assistance I am very grateful. I thank my colleagues on the Front Bench; I do not know what I would have done without them. I am also very grateful to the Bill team, who have worked very long hours, not just when they have been in attendance in this House but behind the scenes—and I can assure the House that they certainly were not attempting to waterboard me. I thank all Members of the House who have contributed to this Bill, both in the Chamber and outside. We have not been able to agree on everything; none the less, I have brought forward a package of amendments on Report and Third Reading based very much on what has been said by noble Lords on all sides of the House and outside. I would ask the noble Lord, Lord Harris of Haringey, to withdraw his amendment.

[Lord Hunt of Kings Heath]

My Lords, before my noble friend decides what he wants to do, as the noble Baroness has rather jumped the gun, perhaps I may respond by saying that I am most grateful for her remarks and for the way in which she has conducted the Bill since taking it over at pretty short notice on the first day of Committee. She has earned the admiration of the whole House for the way in which she has conducted herself. She said that she can take care of herself. Indeed, she can, which is why we had a vote on the first debate.

I also thank the noble Lords, Lord Wallace of Saltaire and Lord De Mauley, as well as the Bill team, for the support they have given the noble Baroness. I am also grateful to my noble friends Lord Rosser and Lord Stevenson and to all noble colleagues who have spoken on the Bill.

Before we come to my noble friend, I just say that the Government have an opportunity to pause now. I know that the Prime Minister suggested in his Statement that he is determined to plough on with elected police commissioners, but there is time to reflect. I hope that the Government will take advantage of that time to consider the real concerns about the Bill that have been expressed around the House.

[Lord Harris of Haringey]

My Lords, it is slightly strange to respond on the amendment after going through the normal courtesies of Bill do now pass. I think that all Members of the House are grateful to the Minister for the way in which she has conducted herself throughout these proceedings, having been given a very difficult, and at times impossible, brief in terms of selling arguments to us. We are conscious that she was thrust into this at a very late stage. If I have expressed myself on occasions with vehemence or even asperity, that has certainly not had anything to do with the noble Baroness but more to do with the difficulty of the brief with which she has been presented.

However—this is the asperity—the response that she gave on my amendment did not really address the key questions. In fact, it addressed two separate points which I did not make. It said that we needed to have corporate status for the PCCs and the chief officers and so on. No one is arguing about whether they should have corporate status; the question is why it should be a corporation sole. This is a particularly strange concept and no one who has had to deal with it seems to think it is terribly satisfactory. It does not lead to transparency or good governance. That is why it seems such a strange way of proceeding.

Similarly, no one is arguing that there should not be a suitably qualified senior financial officer for each chief constable or for the Commissioner of Police of the Metropolis. The question is why that chief financial officer has to be recognised under the Local Government Finance Act and the Audit Commission Act, thereby creating a panoply of two separate audited accounts. That is what is wrong with the Bill; that is why we are asking for Parliament to be given another opportunity to look at the matter; and it is why, I am afraid, even at this late stage I wish to test the opinion of the House.

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Moved by

[Lord Hunt of Kings Heath]

12: Clause 154, page 105, line 28, at end insert—
“( ) an order under section (Policing protocol);”

[Lord Hunt of Kings Heath]

My Lords, the protocol is a vital matter. I fail to see why it should not be subject to an affirmative order. Even at this late stage, will the noble Baroness be prepared to accept this? I can see she will not. I beg to move.