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Police Reform and Social Responsibility Bill
|©Parliamentary copyright||Prepared 28th January 2011|
Publications on the internet
Police Reform and Social Responsibility Bill
Police Reform and Social
The Committee consisted of the following Members:
James Rhys, Committee Clerk
† attended the Committee
I was just remarking, before this sitting began, on the fact that 9 o’clock in the House always seems much earlier than it actually is. I do not understand why, when most of us regard it as the normal time to be working and are used to it. It is good to see you in the Chair, Mr Streeter, You are our fourth Chair in as many sittings. I do not know what that says about the Committee’s deliberations, but we are pleased that you are with us this morning.
I will not detain the Committee long. I am just interested in the Minister’s comments on amendment 115. Police staff are currently employed by police authorities, but for day-to-day management are placed under the direction and control of chief constables. That means that dismissals of police staff take place by authority of the chief constable. However, the employer status of police authorities has meant that police staff subject to dismissal have retained a right of appeal to the authority. Under the Bill, that is set to change, because not only does it abolish police authorities, but it makes the chief constable the lawful employer of police staff.
It is important to preserve the right of appeal against dismissal to an independent arbiter. People have that right of appeal in most circumstances and, with the abolition of police authorities, the police and crime commissioner should be the new arbiter. However, it is not clear from the way in which the Bill is worded whether that will be the case. Will the right hon. Gentleman clarify the position?
The Minister for Policing and Criminal Justice (Nick Herbert): Good morning, Mr Streeter. I, too, welcome you as our fourth Chair. We have had nearly as many Chairs as we have had shadow Home Secretaries over the past few months. The turnover is highly welcome.
I can reassure the hon. Gentleman. The Government have made it clear that there needs to be separation between the chief officer and the police and crime commissioner, and that there should be clearly defined roles for each. In fact, it is common throughout that that is desirable. Chief officers must have control over their own force, but then be held strictly to account for their decisions by the police and crime commissioner. If we allowed a route of appeal, it would undermine the separation because the whole point of the proposal is that the chief constable must have control and direction of the force and be responsible for those who work for her or him.
The staff will be protected from unfair dismissal under the normal employment law protections as they are in all other employment scenarios. Police and crime commissioners will hold the chief officer to account for all functions, and will have a duty to keep abreast of complaints or misconduct issues in the force. They will always be in a position to hold the chief to account for abuse of power. We do not want to define the concept of operational independence under the Bill. We have discussed that before, and no doubt will do so again.
The amendment would have the effect of taking away the chief officer’s independence, as the corporation sole and employer of staff. That would be wrong. If we are to trust the chief officer to direct and control a public service, we should be able to extend that trust to their ability to be a responsible employer according to the law, which is a function that is performed by large numbers of senior office holders throughout the country.
I understand why the hon. Member for Gedling raised the issue, but there is no need for concern. The provision takes the logical step of separating the roles of chief constable and the police and crime commissioner, and on that basis I hope that he will be reassured and feel able to withdraw the amendment.
Vernon Coaker: I have no intention of pressing the amendment to a Division and, with permission of the Committee, I shall withdraw it. I shall consider carefully what the Minister said and, if necessary, return to the subject. I understand his argument, and I do not think that he would wish to be unfair to staff, whoever their employer is. However, the notion of people having a right of appeal is something I regard as a principle. I am somewhat reassured by what the right hon. Gentleman said, so I beg to ask leave to withdraw the amendment.
Vernon Coaker: This is an important schedule because it gives effect to many of the things under clause 1. As I said on Tuesday, we oppose police and crime commissioners in principle and we have proposed an alternative. In so doing, it was interesting to note that the Minister lost his cool—not in terms of getting angry—but became dead excited about cost. He then went on a bit of a ramble about things, which miraculously appeared in Twitterland. I have no idea how that happened.
Schedule 1 gives significant powers to the police and crime commissioners, which we have discussed. The chief constables and the witnesses asked for clarity in respect of what such powers mean. The Minister will correct me if I am wrong, but his response was that we do not need clarity in the Bill because the transparency at local level will mean that no one will do anything extraordinary and incur exorbitant costs or allowances as everything will be published. A league table of police and crime commissioners will set out who are the cheapest and who are the most expensive. If they claim exorbitant sums for four years and have had extravagant costs, the local electorate will throw them out. That seems to be the Minister’s argument for not having greater clarity in the Bill.
Under schedule 1, the police and crime commissioner is to be paid a salary. No doubt, the Secretary of State determines that salary but, having set the hare running at £120,000, the Government are now beating a hasty retreat and referring to the Senior Salaries Review Body for advice on what the position should be. Different salaries can be paid to different commissioners in different areas. I have no idea what that means. I suppose the idea is that commissioners covering a big area receive more money. Will the salaries be worked out by population or size of area, or on whether the force is urban or rural? It would be helpful for the Committee if the Minister explained the proposal. Will salaries be decided according to the urban or rural nature of the area represented, or according to its size? We would all be interested to know whether the police and crime commissioner in Greater Manchester would receive more than a police and crime commissioner in Derbyshire, Staffordshire or Cambridgeshire—I picked those counties at random.
The PCCs can also be paid authorised allowances. Will the Minister make matters clear? If police and crime commissioners are to be paid different amounts, does that mean the authorised allowances will vary in different areas? I assume that they will be paid different amounts, because some are expected not to have the same level of responsibility as others. Will the Minister explain—
Vernon Coaker: Will the hon. Gentleman let me finish, otherwise I will forget my point. I am just getting going, and I think that this is a good point—not that the others have not been good. To be completely honest, I mean that the point has just occurred to me, whereas the others are written down. The Liberal Democrats have always castigated us for league tables, and I am interested in hearing their views. That is perhaps what the hon. Gentleman wishes to intervene on.
In those league tables, how will we compare police and crime commissioners on allowances, salaries and costs, if they are paid different amounts? How will that be worked out? If one police and crime commissioner earns £60,000 a year, and I am a police and crime commissioner earning £120,000 a year, I will probably
Dr Huppert: I am sorry to have interrupted the good point that the hon. Gentleman was making, although I am not sure that it was so good. Are all chief constables and head teachers currently paid the same? There are many examples of differential pay in forces, schools or other organisations.
Vernon Coaker: Of course, but my point is that salaries are not put in those league tables; the results are put in them. People have criticised league tables because they do not compare like with like, because the results are entered in raw form. The Minister says that allowances, salaries and costs will be put in a league table, but not the performance of a commissioner, a matter which might make a difference on the effectiveness of reducing crime. A perfectly good argument might be made, and many criteria are used, including for the ranking of police forces into good, bad, improving and so on. The Minister, however, has talked about league tables for costs and allowances. People will be paid different amounts, but if they are paid different salaries, and therefore allowances, how will that be put in a league table to compare like with like?
Mark Tami (Alyn and Deeside) (Lab): Has my hon. Friend thought that we are talking only of commissioners, and there will obviously be the important staff—hangers-on, or however we describe them—working for the commissioners, so are we to expect a league table for them, as such costs continue to mount?
Vernon Coaker: That is exactly the point that I was going to make. All the authorised payments for the police and crime commissioner are set out in schedule 1, under which the commissioner may also appoint a chief executive and a chief finance officer, and set their salaries, and paragraph 6(2) states:
To be fair to the Minister, some people say that chapter 3, on the functions of the police and crime commissioners, is over-prescriptive, because it has lots of “must”s. He is in favour of localism, but that chapter says many times “must do this” and “must do that”, and “must have this” and “must have that.” A huge number of functions, which are not at the discretion of the police and crime commissioner, are prescribed by this localising and decentralising Minister. I have not counted all the “must”s in chapter 3, because I forgot, but I will. There is a huge number, however. How will all those “must”s be put into effect if the police and crime commissioner is worried about appointing staff? How will we control costs in such circumstances?
Indeed, there will be a chief financial officer for the PCC, and the chief constable will appoint one, too. I know that the Minister thinks that all police authorities are turkeys who will not vote for Christmas and it is therefore not worth listening to their views. Lancashire police authority, however, talks about the confusion that will arise between the staff and functions of the PCC and the staff and functions of the chief constable. It says:
“In practice this means that there is a potential for duplication. An example of this is that Treasury management activity in Lancashire is a shared function between the constabulary and authority and both use, and indeed buy in, the systems support for this function.”
Will the Minister tell us whether that can still be the case? In schedule 1 to the Bill, the PCC is required to have a chief financial officer; in schedule 2, which we shall debate shortly, the chief constable is required to have one. Although primary legislation requires each of them to have a financial officer, can they share one, or do they have to have two, which would be a duplication? As far as I can see, it does not say, “If they choose to have one”; it says that they must appoint one. I know that the Minister is worried about costs and says that his model is cheap and, apart from the elections, will not cost any more than the current one. I will be interested to hear the Minister’s comments, however, on having a chief financial officer in two areas.
Schedule 1 gives effect to all sorts of measures, one of which is very important but difficult to understand. Paragraph 9 deals with the PCC’s incidental powers. It is difficult to comment on those powers without also considering paragraph 7 to schedule 2, which covers the incidental powers of the chief constable. In many respects, those paragraphs relate to each other. Indeed, paragraph 7 refers to particular powers that the chief constable cannot use without the permission of the PCC.
Does he agree with that, or is it unnecessary because those provisions are in the Bill? It will help those people who read our debates if the Minister, with absolute clarity, lays out who owns what, who is responsible for what and who can do what in the Bill. It will help if he is clear about the situation now, and what it will become when the Bill is enacted. Perhaps the Minister has a better brain than me for such things, but I found it quite complicated to understand fully what that meant.
Vernon Coaker: That is extremely helpful. No doubt the Minister can tell us whether the sub-paragraph is poorly drafted and that the “legally binding” does not refer to “entering into contracts” but to the second part. If that is what is meant, that is helpful.
Perhaps the Minister can give us some examples of such contracts. Or, if the hon. Member for Northampton North is correct and the phrase just refers to “other agreements”, what might those other agreements be?
Mike Crockart (Edinburgh West) (LD): I seek clarification that we are still talking about amendment 115. The points being made by the hon. Gentleman are reasonable, but a number of amendments are coming up under which he can make them.
The “Incidental powers” in paragraph 9 are an important part of schedule 1. The incidental powers in paragraph 7 to schedule 2—this is where you will tell me whether I am out of order, Mr Streeter—relate significantly to schedule 1, in the sense that the chief constable can also enter into contracts and other agreements. Under schedule 2, the chief constable, when
I am interested to know from the Minister why that is. From the representations of many chief constables, police authorities and others, what the new arrangements will be, and will mean, remain unclear to people out there who are looking at and thinking about them. What do the two paragraphs of the two schedules mean? What do they mean for the division of responsibility between the police and crime commissioner and the chief constable?
The Lancashire police authority, I think—certainly one of the police authorities—was concerned that the chief constable might be able to enter into all sorts of contracts, including private finance initiatives and so on, without any reference to the police and crime commissioner. As far as I can find, schedule 1 includes no reference to that power of the chief constable.
On a less hypothetical level, what does that mean for police stations? Can the police and crime commissioner dispose of police stations, police training facilities and so on without reference to the chief constable? I know that the Minister says that we expect the PCC to relate to the chief constable, but does the provision mean that
I apologise to the Minister, because my questions are technical. However, the control of assets and property—who owns what, who can do what and under what circumstances—and which contracts can be signed, are important, if somewhat technical, aspects of the Bill. As we have heard from chief constables and so on, people out there have demanded clarity on all aspects of the Bill, certainly with respect to the incidental powers under schedule 1, which have a lack of certainty. People look forward to what the Minister has to say.
Nick Herbert: We debated the PCC’s salary, for which the schedule provides, last time, and the Opposition know the Government’s position. The salary of the PCC should be set by the Secretary of State on the advice of the SSRB. We have commissioned that advice from the board, which is the right approach. We have certainly not either indicated or set a salary of £120,000 a year. We had to put in a figure for the purpose of costing the overall proposals. It is for the SSRB to advise. Some of these are going to be pretty big jobs, with the size of forces that will be held to account and the very large budgets, not least in the area of the hon. Member for Birmingham, Selly Oak.
Steve McCabe (Birmingham, Selly Oak) (Lab): The Minister said that he put in a figure because he had to. Presumably, he did not conjure that out of thin air; he must have based it on something. It might be helpful if we had a clue to his thinking.
Nick Herbert: It was a nominal figure. It was also the total cost, including tax and national insurance; it was not to be the gross salary. We had to put in an estimate of what might be recommended by the SSRB, for the purposes of costing. That was not an unreasonable thing to do. I repeat that the salary is not set; it is for the board to decide. I merely make the point that these will be significant positions. People will be holding to account very big organisations such as the West Midlands police, which employs 13,000 people and has a budget of over £0.5 billion a year.
The point that I made about league tables was in the context of the overall costs of PCCs—in other words, their overall budget each year. We subscribe strongly to the principle of transparency; that all of these costs should be revealed, as is right. I merely made the point that there will certainly be scrutiny at local level and of costs between different PCCs. There will be attention to that and people will ask why, adjusting for the size of the force, one force should cost more than another. It will be much easier to do so with the transparency that we offer than it is now with police authorities.
Vernon Coaker: A league table is about ranking—who is doing well, who is doing best and so on. There will be one, two, three, top and bottom. How can there be a single league table? As the Minister just said, in forces such as the West Midlands or Greater Manchester the costs will inevitably be more than for a small force. If they are in the same league table, how can they meaningfully be compared? What is the purpose of the league table in that sense?
Nick Herbert: This really is not a difficult point. I am not going to publish a league table; I am suggesting that others will. It will not be hard for them to make an adjustment of the cost per head of the electorate served by that police force. They will, therefore, be able to work out the cost of the overhead per elector. They will be able to work out the cost of administration and the PCC per head. That will then turn into a ranking that, I have no doubt, interest groups and newspapers will publish. That will reveal that one PCC in one area spends more per head of the population than another. That will be a perfectly reasonable thing to do and will provide a check on how much money that individual is spending. I really do not think that this is a difficult point.
Vernon Coaker: Quite reasonably, the Minister is now seeking to put some meat on the bones of what he means by “league table”. He has just said, for example, that people will be able to look at cost per head—that is the phrase he used. That is fine, but he never said that when he was talking about it before. I am just trying to get some clarity on what he expects from league tables. In his slight irritation at my asking those questions, he is now telling us that people will be able to work out cost per head.
Nick Herbert: I am not irritated in the slightest. If anything, I am amused that the hon. Gentleman has not realised that, in publishing the comparative costs of police and crime commissioners, it will be obvious to anyone that there will have to be an adjustment for the size of the force. There is a great variation in force sizes, and it would not make sense to compare the administrative overhead for Warwickshire, the smallest force in the country with some 400,000 electors, with London, which has millions of electors. So, clearly, an adjustment would have to be made for that. That is not a difficult point.
Police authorities are not cost free. They cost at least £50 million a year to run. We are absolutely adamant that police and crime commissioners should cost no more than that. The hon. Gentleman’s preferred model of directly elected police chairs would also have an administrative cost. I made the point last time that the cost of that would be greater, because the members of the authority would still claim their allowances and the salary of the chair would also still be paid. So the hon. Gentleman is not in a good place on that. I look forward to reading more about it on Twitter, although my iPad has died, so the hon. Gentleman may have more attention today than he deserves.
It will not be possible to share a chief financial officer under the legislation, because such positions are required under the existing law. They have statutory duties related to accounts and so on, so we do not think it appropriate that they could be shared; the other staff that the police and crime commissioner appoints could be shared under separate employment contracts with the police and crime commissioner and the chief constable. That is the position because they have section 151 responsibilities under the Local Government Act 1972.
Nick Herbert: That is an important point. Under the legislation we are setting up two separate entities, two separate corporation soles, in the office of the chief constable and the office of the police and crime commissioner. That separation is an important development, and it adds clarity and transparency to the functions—we will come to the ability of the chief constable to employ staff—they need to be a corporation sole to do that. In view of that separation, they will need the two finance officers, and to account for the resources separately.
The particularly important point—indeed it was one of the decisive points—is that the office is of a police and crime commissioner. That means that the PCC will hold a budget that will not be for the police force. There will be a devolved budget from the Home Office for other crime prevention activity, which the police and crime commissioner will distribute. For that reason, it is important that there is a separation between the two bodies, with separate audits and finances.
Vernon Coaker: To be fair, what the Minister said is very clear—the functions will have to be separated, but there are consequences. I have an example—no doubt there are others across the country—of police authorities and chief constables sharing financial and other functions to minimise bureaucracy and cost. If I have understood correctly, it will no longer be possible for Lancashire, for example, to share treasury functions. It will have to split those functions and, as the Minister has said, there will be separate audits and account trails and so on. We have talked about costs—I know that the Minister enjoys poking fun at the alternatives—but that separation will generate additional costs over and above what the police authorities currently cost.
Nick Herbert: I think that forces often have individuals in charge of the finance who are separate from those working in the police authority. The question is whether they will have responsibility under the Act. But there is an important principle, which is whether that joint appointment enables proper scrutiny of spending and enables the force to be held properly to account. The overlap in role between the authority and the police force is not a desirable thing, because it is one of the things that prevent the effective holding to account of the force.
There is merit in having a clear separation between the police and crime commissioner and the force, with the separate audit and the transparency to assist the process of holding the force to account. If the office is combined, the ability to hold to account properly will be blurred, and that is exactly why the whole premise of the legislation is to ensure clarity between the two roles. So I do not accept what the hon. Gentleman says, because part of the purpose of this reform is to drive greater value for money. One of my concerns is the ability of police authorities—I suspect that the hon. Gentleman, as an experienced former police Minister, shares my concern—to drive the kind of savings that we need to see in policing. Stronger authority in the form of the police and crime commissioner to drive those savings, and greater clarity about the allocation of resources, are good things.
Vernon Coaker: I accept the point that some police authorities are better than others in terms of value for money, management of their functions and relationships with chief constables on treasury management. I will simply say one thing and leave it at that. It is interesting that the Minister is torn between centralism and localism. Why be so prescriptive—it is such a straitjacket—when it could be demonstrated at a local level that there was a much better way without compromising the transparency or the accountability that the Minister wants? The Minister may wish to reflect on that.
Nick Herbert: I will always reflect on what the hon. Gentleman says when he is making what I think are genuine and constructive points about the legislation, and I will certainly guard against being over-prescriptive. As we go through the Bill, there is always a balance to be struck. However, in the basic architecture of the roles and responsibilities, it is absolutely right that it is set by Parliament and that there is clarity. Indeed, the hon. Gentleman has asked for clarity about the nature of the roles. I do not think that we could allow any confusion. In particular, I do not think that we should allow the two offices to be merged, because that would wholly undermine the purpose of a police and crime commissioner, who will hold the force to account and who will not seek to run it. There is not to be a blurring between the roles, so it is right to separate them. If the hon. Gentleman reflects on that, he will probably agree.
The hon. Gentleman has asked why decisions about the disposal of property would be made by the police and crime commissioner. We believe that it is right for chief constables, who control and direct their forces, to be the employer of those forces; to clarify, that is not the case at the moment. Many in the police service made a strong argument that they wanted to control property as well, but we decided on balance that it was right for property to be owned by the PCC—or the corporation sole that embodies the office—so that the PCC had control of assets and had the final decision about whether assets such as police stations could be disposed of. Had that property been handed over wholesale to the police, that would have given them more than control and direction of the force; it would have given them the ability, potentially, to dispose of assets without the PCC’s agreement. It would have undermined the PCC’s ability to hold the force to account. I believe, therefore, that we have achieved the right balance in respect of property.
Vernon Coaker: That is helpful in clarifying the point about property. What does the Minister mean by property? He has referred to police stations and land, but does he also mean police vehicles and items such as uniforms? Are they property as defined in the Bill? Such definitions are important. For example, problems could arise if police cars are defined as property and the PCC decides that a particular type of police car is not right for the force, but the chief constable says that it is. It is not a trivial point, and I am interested in exactly what we mean by assets in the broadest sense.
Nick Herbert: The answer is yes. That is also an area where central Government will take an interest, because as I have set out this week—no doubt the hon. Gentleman has seen that—great savings can be made by the 43 forces procuring property together. The previous Government held the same view, and it is an area where we want to see greater collaboration.
I believe that the schedule is sensible. It gives effect to clause 1, which we have already debated and agreed on. The separation that we are making between the PCC and the chief constable is the right one. I appreciate the spirit in which the hon. Gentleman has promoted debate on schedule 1. He has raised some important issues and I am happy to have provided clarification.
Vernon Coaker: The Minister’s comments were helpful. Debate on the matter will continue, because some important points have been raised. I agree with the Minister about greater collaboration in the procurement of uniform, cars and similar items. We need to look again, however, at whether some of the definitions in the Bill are tight enough, including the question whether agreements are legally binding and some of the other points that I have made. I am not a lawyer, but I know that our debate will have been scrutinised and perhaps the Government will consider whether certain points in the Bill require greater clarity. I do not intend to vote against the schedule, and I thank the Minister for his comments.
Vernon Coaker: Amendment 89 is a probing amendment, to ask the Minister to clarify whether the staff employed by the PCC are totally under the direction and control of the PCC, or whether the chief constable has any say. Some clarity would be helpful.
Vernon Coaker: It has not only given me clarity; a lot of people outside wanted it. So, again, in the search for clarity, we have had it. I thank the Minister for that, and I beg to ask leave to withdraw the amendment.
Amendments 329 and 333 are probing amendments; they go back to what is meant by “direction and control.” The Minister has said that nobody, including the police, wishes to see direction and control defined in the Bill, but it would be helpful if the Minister spent some time saying what that term actually means.
Amendment 329 lists certain things which could be included for the chief constable to have direction and control over. The proposal returns to the chief constable’s powers and responsibilities, vis-à-vis the PCC. The code of practice, or memorandum of understanding, which the Minister has said that he will bring forward is exceedingly important. He said that he agrees with the Home Affairs Committee that we need such guidance, which would set out the relationship between the chief constable and PCC, and what the issues of direction and control are. It would be extremely helpful for the Committee and the House to see a draft of what that code of practice should look like.
I am interested to hear, in the Minister’s response to this probing amendment, whether he believes that that guidance, as recommended by the Home Affairs Committee, could be available at Report stage. I do not expect it to be available in the next couple of weeks, because it will take a lot of negotiating. However, such is the importance of direction and control, and such is the importance of the relationship between what a PCC can do and what a chief constable can do, that it goes to the absolute heart of the Bill. For all of us in this House to be reassured about what that means, we surely need some idea of what the Government are thinking.
Michael Ellis: Does the hon. Gentleman appreciate that the police do not want a demarcation of operational scope? With operational demarcation, operational independence is not susceptible to exact definition. Is he not calling for something that is impossible to define properly?
Vernon Coaker: I said at the beginning that it was a probing amendment and I had laid out certain things in it. I am not going to press it to a Division. I appreciate the difficulty in defining, in any reasonable or sensible way, “direction and control” in primary legislation. However, when the Home Affairs Committee talked about direction and control, it said that there needs to be a memorandum of understanding or a code of practice, which sets out some parameters and principles, according to which the decisions can be made, and the Minister accepted that. With the amendment, I am trying to suggest that these things need to be discussed, thought about and determined in such a memorandum of understanding or code of practice.
The amendment mentions decisions on the deployment of officers, balancing competing operational priorities, decisions that fall within the ordinary professional discretion of an officer—budgetary allocation and so on. They all seem perfectly sensible and reasonable, so we could say, “Of course those things should be a matter for the chief constable, because that is the direction and control of the force.” We have had examples, and the Minister used one. A reasonable example would be someone who stands for election saying, “Police officers should go on buses,” or, “Police officers shouldn’t patrol in pairs.” The PCC might have that mandate, but under the clause, the direction and control of officers is a matter for the chief constable. It keeps coming back to that, but it is the core principle, which is why the memorandum of understanding is so important. The chief constable says, “These people are under my control, so you may have been elected on that mandate, but they are not patrolling in twos, they are patrolling in ones,” or, “They are not patrolling in ones, they are patrolling in twos.”
What about deployment? Chapter 3 is about policing and crime plans, which we will discuss later. The policing and crime plan lays out all sorts of responsibilities for the PCC, including delivering policing in the area. How does that relate to the chief constable’s powers under clause 2? The amendment is a way to get a sense of what the Minister means, and in particular, to push him on the whole business of the memorandum of understanding or code of practice—we need a draft of it. I have a request for the Minister through you, Mr Streeter. Report is a few weeks away, and it would be extremely helpful for the Committee to have sight of some sort of draft. We could then have some clarity about direction and control in respect of chief constables two or three days before the debate, so we could look at it and, if necessary, table an amendment.
Steve McCabe: Just before my hon. Friend finishes—he moves far too quickly for me—I wanted to go back to control of staff. Obviously, the Minister’s premise is that, as well as improving performance and accountability, this is about containing costs. I do not know if this would be in the memorandum of understanding, but I find it astonishing that we could have an apparatus for the commissioner—typists, tea-makers, chauffeurs and photocopiers—all of which might be available in the chief constable’s office, but if the chief constable decides not to allow them to serve the commissioner, then the commissioner will have to employ separate administrative back-up. Is that what my hon. Friend has in mind? Is that what we want the Minister to clarify? That would not contain costs; it would explode them.
Vernon Coaker: Some of the points that we have been trying to make are exactly on the explosion of costs and the difficulty of constraining costs. My hon. Friend makes a good point. Amendment 329 is a probing amendment, and these are the questions that need to be asked. I have included a list in the amendment, but it is not limited to that, and it could be extended.
Let me add one other point, on direction and control. When the Minister responds to this, I wonder whether he will say a little more on the tension between local and national policing priorities. I am interested in his views on how the balance will be struck between the two.
Nick Herbert: I am sorry that the hon. Gentleman is having to work so hard this morning—unsalaried too. The Committee is very grateful. We discussed these issues extensively in the previous sitting. They go to the important question of operational independence. In brief, I will repeat the things I said before. The police service has asked us not to define operational independence in this legislation, because a plethora of case law already exists. It would therefore be unwise to do so. These probing amendments would seek to do that, so they would not be helpful to this Committee or to the police service.
We are not changing anything on the existing legal provision that the chief constable has direction and control of the force. That same principle will apply. The same debate will apply, in what is—I think we all agree—a grey area. That is where the hon. Gentleman will run into difficulty, because he is seeking to define operational independence, which everyone accepts is a grey area. Police authorities and chief constables regularly have a difference of view about exactly which issues should be matters of operational independence and which should not. As I have said, such differences tend to be settled by discussion between the two parties. At the worst they go to a court to be discussed, but I simply do not think that those debates are capable of being settled by statutory prescription.
We need to be very careful not to upset the proper balance between the body that holds the police to account locally and the police themselves. The police will retain operational independence. The hon. Gentleman discussed the importance of the office of constable on Tuesday, which gives every single officer the obligation under the law to exercise his functions without fear or favour. We cannot pretend that these debates will not remain, because they will continue going forward. I say again, nothing has changed so far as the legal provision is concerned. We have said that we think that the Home Affairs Committee’s proposal for a memorandum of understanding is helpful. It is worth pointing out, however, that 11 years after the Patten commission in Northern Ireland suggested that the definition should be operational responsibility, rather than operational independence, there is still no agreement on the memorandum of understanding that should govern that.
We should, therefore, be careful not to believe that a memorandum of understanding would seek to define operational independence in a close manner. If it did, it would immediately become bogged down and would cut across what the police service are asking, which is that we should not try to define it. There is force in
I understand the spirit in which the hon. Gentleman is probing the issues, because they are important, but we debated them extensively in the previous sitting, and I do not have much more to add. On the basis that his amendments would prescribe direction and control too closely and rather unhelpfully, I hope that he will withdraw them.
The Minister said that nothing had changed and then moved on to say that nothing had changed legally. That is the important issue. I accept that, legally, there is no change, but the Bill significantly changes the accountability arrangements for policing in this country. It is within that context that it becomes much more important to test whether the current legal framework contains the correct parameters within which the new accountability arrangements should work, hence the importance that the Committee attaches to getting that right.
I accept the Minister’s point about the Home Office, police authorities, chief constables and so on working towards a code of practice or memorandum of understanding. It is interesting that the Minister said, if I understood him correctly, that work had started. I understand that the Patten commission was 11 years ago, but we are not in the same situation, and it will hopefully not take 11 years to come up with a definition. I know that that is not the point that he is making, but it is extremely important that the Minister undertakes to make some sort of draft of the document available, to Parliament and to the Committee, in good time for us to consider it before Report, because it is of such fundamental importance to the Bill. I have conceded to the Minister, and I accept what he is saying, but he understands the crucial nature of the document. I ask the Minister again to consider whether it is possible—I think it is essential—to make a draft of the document available before Report.
I shall keep returning to that point, because it is fundamental. Indeed, in his evidence to the Committee, the chief constable of the West Midlands said that it would be extremely helpful to have that draft available for discussion during the deliberations of the Bill. The Minister will have heard what I said and will no doubt consider it again, but I cannot stress too highly how important that is. Looking around the Committee, hon. Members, whether they agree with the amendments or not, agree with my point that the document, which we have agreed is necessary, is of fundamental importance to our scrutiny of the Bill.
The Chair: With this it will be convenient to discuss the following: amendment 330, in clause 2, page 3, line 2, leave out from ‘to’ to end of line 3 and insert ‘protect fundamental rights, uphold the law and keep the peace.’.
Vernon Coaker: Thanks. Amendment 330 is an interesting and important amendment. I am trying to gain clarity from the Minister about what is meant in the Bill, specifically in the relationship between clause 2(5) and clause 2(3). Clause 2(3) says:
“A chief constable must exercise the power of direction and control conferred by subsection (3) in such a way as is reasonable to assist the relevant police and crime commissioner to exercise the commissioner’s functions.”
My legal aide, the hon. Member for Northampton North is listening intently, having already earned £500, probably, with his first bit of advice. [ Interruption. ] Sorry, Mr Streeter. That was my fault; I apologise.
What on earth does that mean? How on earth can we define it? Is the Minister seriously retreating once again into, “Don’t worry, the good sense of the police and crime commissioner and the chief constable will be such that there won’t be a problem”? What if the police and crime commissioner and the chief constable sit down and discuss it all, the PCC says, “I need the people you direct and control to help me fulfil my functions,” and the chief constable says no? Will the PCC say, “That’s unreasonable”? What on earth will happen?
We are legislating. It is not good enough for the Minister to say that problems will not occur because everyone will be happy and friendly, the police and crime commissioner will be okay, the chief constable will be reasonable, they will have a cup of tea and talk it through and if they still disagree, they will come back tomorrow refreshed and sort it out. This is a piece of primary legislation. We need clarity and some degree of certainty. “Reasonable” will be a field day.
Michael Ellis: I shall resist the temptation to send the hon. Gentleman an invoice. The issue of reasonableness has been explored countless times in the courts. He may have heard the phrase “the man on the Clapham omnibus”. What is reasonable or not reasonable is a matter of fact and degree and has been explored countless times. If the issue of reasonableness ever got that far, it would be left to a jury, would it not? It is impossible to define such terms within the confines of any statute, criminal or otherwise.
Vernon Coaker: Up to a point, I accept what the hon. Gentleman says, but the purpose of legislation is to try to prevent situations in which the courts have to intervene to sort it out. To be fair to the legal profession, its members are often called in to clarify laws that were
We should try to avoid that situation. A number of representations in various documents referred to this matter as a serious point about the relationship between PCCs and chief constables. Perhaps the Minister can clarify: the proposal refers not only to civilian staff but to police officers. Does the clause as drafted require the chief constable to co-operate with the PCC, with respect not only to civilian staff but to police officers, in order for the PCC to deliver all the functions conferred by clauses 1 and 2?
Steve McCabe: I have here a copy of an invoice that Birmingham city council paid for the leader of the council to attend the Tory party conference. If the PCC thought, like the leader of Birmingham city council, that it might useful in the exercise of his functions to attend a party political conference, accompanied by staff, with the use of a suite and the addition of a drinks bill—the sort of thing that Councillor Whitby relies on—but the chief constable did not think it reasonable, would that be an area of conflict? Would the chief constable be in danger of breaching subsection (5) of this clause? Is that the sort of thing that could be tested in law?
Vernon Coaker: My hon. Friend has a good point. That could be the case, in the way that the clause is drafted. The Minister needs to reflect on the representations made to the Committee about the possible tension between subsections (5) and (3) of clause 2. Perhaps the Minister can help on that.
The importance of this debate cannot be brushed aside. Chapter 3 contains a huge number of functions that the PCC is required to fulfil, with many of them “must”s. If the chief constable is required to co-operate with the PCC—to make his police officers, civilian staff and so on available to the PCC, in a way that is reasonable to assist the PCC in his functions—we need greater clarity. I will leave that matter there, because I am interested to hear what the Minister has to say. It is a serious point, the same one we had earlier, where we got into trouble over “in particular”. The Minister should reflect on those two parts of the Bill, to see whether there should be greater certainty in the drafting, in order to overcome some of the problems I have mentioned.
Nick Herbert: I have a great deal of sympathy for the hon. Gentleman. I remember what it was like in opposition, when I had to draft amendments, trying desperately to keep up with the ones I had drafted and to find things in the Bill to amend. That is the job of the Opposition and I sympathise with him. However, I do not think he has a strong point. Of course, all of us who exercise public functions are under a general duty to act reasonably. I must act reasonably as a Minister. If I did not do so in taking a decision or exercising a function, my actions could be judicially reviewed and I could be arraigned by people such as the hon. Member for Birmingham, Selly Oak in the House.
It is sensible that we ensure that operational independence is protected by preserving the existing arrangement that the force is under the direction and control of the chief constable. However, we cannot allow chief constables under that shield to get into a position in which they might find themselves being unco-operative where a commissioner is exercising statutory functions. The hon. Member for Gedling, as a former police Minister, will know as well as I do that there have been situations in which authorities have found it difficult to obtain information, for instance. It is important that we ensure that, while operational independence is protected, the commissioner is able to do their job.
First, those must be the functions of the police and crime commissioner, so that would not apply where there was any interference in operational independence. Secondly, we have the test that it must be reasonable. That is an objective test. If anyone has concern about that, let us put it the other way. Would we think it proper to allow a chief constable to behave unreasonably when a police and crime commissioner was seeking to exercise his functions? No, we would not.
I do not think that there is a problem, because we are ensuring that the force remains under the direction and control of the chief constable. We are, however, ensuring that chief constables are in no doubt that, although there is that separation of powers, they must ensure that they act in a way that enables the police and crime commissioner to do their job. That is the right starting premise.
I understand why the hon. Gentleman wants to explore the provision, but I do not think that he particularly set out any examples of where it might be abused, and I do not think that it would be wise to remove the “reasonable” test from the provision and insert another provision, because it is the proper test to apply in respect of the exercise of the functions.
Steve McCabe: The only part that I want to understand is who regards it as reasonable. We heard from the hon. Member for Northampton North that the matter could be tested in the courts and that is a well-tried route, but if the commissioner decides that the chief constable is acting unreasonably and, as a consequence, making it difficult for the commissioner to do his job, is that grounds for the commissioner to start a suspension or sacking process, or would that have to be tested in the courts?
Nick Herbert: No, it is an objective test. It is not what they subjectively think may be reasonable; it is the objective test of what a reasonable person would expect. Of course, what we hope, as now under the existing arrangements, is that these matters do not get to the courts but are settled through sensible discussion. In the past, matters have gone to the courts. That may happen in the future, but we cannot prescribe things so closely as to prevent the possibility of the courts determining these matters in the future. What we can do is try to insert, as we have done, sensible provisions that delineate the powers clearly but ask people to co-operate. That is
Vernon Coaker: The Minister’s faith is to be admired. The potential for problems in such areas is considerable. I shall not press the amendment to a Division, but the elected individual with a mandate to do certain things is a totally different kettle of fish from a police authority discussing something with the chief constable. It might be the objective test of reasonableness, but I still say that there will be problems between PCCs and chief constables in their saying that they have a mandate to do certain things and the chief constable is not acting in a reasonable way to help them fulfil their functions.
The right hon. Gentleman’s response is that such things do not happen because people are reasonable with each other or the objective test of reasonableness will apply. It is a statement of faith rather than legislative certainty. In those circumstances, to legislate on the basis of faith, in the sense of believing it will happen or that it probably what will happen, is not good. In that sense, the Minister’s response was inadequate. With that, I beg to ask leave to withdraw the amendment.
I do not intend to detain the Committee long, as we have already touched on this matter. The probing amendment seeks clarification on the role of the corporation sole office for the chief constable. It is an issue that has been raised in the submissions from several police authorities, and I hope that it is something that the Minister is already looking at.
Vernon Coaker: The hon. Gentleman said that several police authorities had made such points to the Committee. Does he believe that the submissions made by the police authorities contain important evidence that we should take account of in our deliberations?
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