Police Reform Bill [Lords]

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The Chairman: Order. I am sure that the hon. Gentleman will catch my eye, but he needs to ask his question.

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Mr. Paice: I was in the middle of my question—

The Chairman: Order. That is what bothered me. The question was going on rather a long time.

Mr. Paice: Why is clause 4 different from new clause 4? Why are two words—''or otherwise''—included in new clause 4 that are not in clause 4? The powers to direct chief officers are distinct and different from those for a police authority.

Mr. Denham: Let us try to separate the two issues. When the hon. Gentleman looks back at the record, he will find that I did not say that in all circumstances clause 4—the power to direct police authorities—will be used before the powers in the new clause. I said that that was clearly a possibility. On the point that I was making to the hon. Member for Newark (Patrick Mercer), even if the Secretary of State uses the powers in new clause 4 from the outset, the police authority will be notified of the basis for the Secretary of State's concern before there is any question of drafting an action plan. We must be able to address any problem identified, and we have built that into the safeguards. We must separate those two issues.

The hon. Member for South-East Cambridgeshire (Mr. Paice) raised the question of the difference in drafting between the powers to direct police authorities and the powers to direct chief officers—that is, the difference between the new and the old clause 4, and the tests that apply. I shall not forget that point, but I should like to make some progress and get more of the Government's case for the new clause on the record. I shall come back to that issue, as it is obviously substantive.

4.45 pm

As I believe that I was saying before I took the interventions, the new clause contains significant safeguards against the inappropriate use of the powers to direct chief officers. A clearly defined procedure has been set out that includes, at each stage, the chief officer and the police authority specifically addressing the concerns expressed in Committee in another place. Once the Home Secretary decides to invoke his powers under the new clause, he must inform chief officers and the police authority of his intentions. He must provide them with evidence that the force, or part of it, is failing, and he must afford them the opportunity to make representations. That is an inescapable first part of the procedure.

Such evidence as might be used by the Home Secretary could be contained in a report from Her Majesty's inspectorate of constabulary or another source, such as the police standards unit or the Audit Commission. The procedure reflected in the new clause would allow the police authority and the chief officer either to refute the evidence that the force is not efficient or effective or to argue that the situation has changed and that the identifiable failings have been addressed.

The Home Secretary would be under the duty to have regard to such representations. In other words, if the police authority, the chief officer or both said to the Home Secretary, ''Your information and analysis

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are factually wrong, and you should think again,'' or ''We recognise the point that was raised. It is being addressed; we've got it in hand,'' the Home Secretary would have the duty to take those representations into account. The intention is that he would do so, and would not plough on regardless.

The Government amendments will further require us to afford the chief officer the opportunity to put in place his own remedial measures before he is directed to do so. Our intention is that if such remedial measures fully address the concern, there will be no need for the Home Secretary to issue a formal direction. If the response to the Home Secretary's initial case is, ''Well, actually, you've got a point. We've got a failing here; it needs to be addressed,'' before the Home Secretary requires the drafting of a direction, the chief officer should be offered the opportunity to show that that problem is being addressed.

Mr. Paul Stinchcombe (Wellingborough): If there is a disagreement about the procedure between the police authority, the chief constable and the Secretary of State, or any of the relevant players, is there any prospect of the issue ending up in court as a matter for judicial review?

Mr. Denham: My hon. Friend makes a fair point. The Home Secretary, when making decisions under the clause, would recognise that his decisions would be open to challenge at judicial review. He would therefore be under a general duty to act reasonably when publishing evidence, responding to representations or assessing the adequacy of responses. That is in addition to the safeguards built into the new clause. None of us regard this as a legally untrammelled power, because judicial review would always be in the background.

The new clause also includes a requirement that the Home Secretary must report the use of this power to Parliament. It has always been the case—from the first draft of the Bill onwards—that the Home Secretary is to be prevented from issuing a direction in relation either to a particular individual or case. Nobody wants politicians trying to run police forces: we do not want the power to direct a chief constable to take action with regard to a particular case or individual, which is why the Bill specifically excludes that.

These are important and significant safeguards. They were remarked upon by the Home Affairs Committee, in its report on the Bill. It stated:

    ''We welcome the safeguards proposed by the Government and hope that it is clearly understood that these powers should only be used as a last resort''.

On Second Reading, the Chairman of the Committee, the hon. Member for Sunderland, South (Mr. Mullin), reiterated the Committee's view. He said:

    ''The Select Committee believes that it would be acceptable for the original clause 5 on directions to chief officers to be reinstated, together with the inclusion of the additional safeguards in Lords amendment No. 42. However, we shall watch carefully the way in which the powers are exercised.''—[Official Report, 7 May 2002; Vol. 385, c. 73.]

Mrs. Annette L. Brooke (Mid-Dorset and North Poole): Much depends on how one reads that sentence

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from the Home Affairs Committee's report. The fact that the Committee said that it hoped

    ''that it is clearly understood that these powers should only be used as a last resort''

makes me concerned. Is the Minister concerned that there appears to be a depth of view that these powers can be wide-ranging, and that there are fears about them? If that were not the case, that Committee would not have expressed a hope with regard to them?

Mr. Denham: This is a semantic exercise, but I, and other Ministers who have spoken about the matter, have described this as a power of last resort, not as a power for general or routine use. We and the Home Affairs Committee are at one in our understanding of what this clause is for. The safeguards—if I can describe them in that way—that we have incorporated into the new clause go a long way towards ensuring that this power, because of the way that it has to be used, could be used only in circumstances where all else had failed and action needed to be taken.

Norman Baker: Will the Minister spell out the powers that the Government wish to have that they do not already have? The Minister—doubtless unintentionally—has given the impression that he does not already have intervention powers. He does have such powers; there are extensive powers to intervene under section 40 of the Police Act 1996 and under section 15 of the Local Government Act 1999. What does the Minister want to do that he cannot already do?

Mr. Denham: The powers that exist to direct police authorities do not enable the Government to address directly, through the chief officer, a significant, persistent and deep-rooted failure in the performance of the police service itself, and nor do police authorities directly have the power to do that. Therefore, this measure addresses a gap in the intervention powers that are currently available to the Secretary of State.

I agree with the feeling around the Committee that these powers should be used only as a last resort; that is common ground among us. However, there is a gap in the intervention powers that are currently available, and these powers seek to address that.

Out of fairness, before I deal with Government amendment No. 131, which relates to the National Criminal Intelligence Service and the National Crime Squad, I wish to address the point raised by the hon. Member for South-East Cambridgeshire, in an intervention. He was unable to elaborate at length about it, but his point was that the power to direct police authorities relies exclusively on a report received from HMIC, whereas this clause would allow the Secretary of State to introduce evidence from another source, in addition to, or instead of, that from HMIC.

The hon. Gentleman knows that the clause that relates to intervention with regard to police authorities is based on previous legislation. Indeed, we argued during the Committee's previous sitting that it improves previous legislation. It relates simply to the role of HMIC. That is appropriate given the legal

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responsibility of police authorities to maintain an effective and efficient police service but not to be involved in the strategic policing issues that I said are required in the new clause.

When we drafted the new clause, we had to consider carefully whether there could be circumstances in which information would become available to the Secretary of State on which he believed that he should act but which had not come directly from HMIC. Asking HMIC to go in and effectively repeat the gathering of the same information would be a duplication of effort and information.

There are several potential sources of information on which the Secretary of State might consider that he should act, such as information from the Audit Commission or the Crown Prosecution Service inspectorate. Further information could come from an organisation such as the police standards unit, which I recognise is internal to the Home Office. There was quite a debate but we reached the view that it would be acceptable and, indeed, might be necessary for the Secretary of State to use such information to intervene provided that there was a reasonable test to stop him using an arbitrary source of information in an arbitrary way. In practice, the fact that the Secretary of State must make public the basis on which he intervenes provides a test that means that information must be as good, credible and reliable as any information that might be received from the inspectorate in order for the process to proceed. As my hon. Friend the Member for Wellingborough (Mr. Stinchcombe) pointed out, the Secretary of State's actions under the Bill might be subject to judicial review. The safeguard is that the Secretary of State could not say, ''I read something in the Daily Mail today. I'm not very happy about it so I'll give direction.'' The Secretary of State would have to demonstrate from where the information came, the basis of it, and be prepared to defend its credibility.

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