Police Reform and Social Responsibility Bill

Memorandum submitted by the Association of Police Authority Chief Executives (PR 19)

Executive summary

· The Association of Police Authority Chief Executives (APACE) is the professional body representing chief executives and other senior staff within police authorities. Our response is reserved to those parts of the Police Reform and Social Responsibility Bill (‘the Bill’) relating to police governance.

· We believe we can complement the submissions from individual authorities and the APA from the strategic and structural perspective of the statutory role fulfilled by chief executives. The success of any proposal is reliant on the quality of the legislation and the administration to support it.

· If commissioners are to deliver on legitimate public expectations they need suitable powers and resources. An electoral mandate alone will not determine success. Without an appropriate balance of powers, duties and clarity of roles between the Secretary of State, commissioner, Police and Crime Panel (PCP) and the relevant chief officer the proposed model has the potential for unhelpful conflict, bureaucracy and inadequate governance locally, regionally and nationally. (2.4) (3.4) (4.1) (4.3)

· In many places the drafting does not appear to give effect to the Government’s stated policy intentions and in other places the drafting could lead to unintended outcomes. There are typographical and drafting errors that we list under separate cover.

· If the proposed model is to meet the Government’s policy intention transitional arrangements are of critical importance. Transition would benefit from greater clarity than that provided within the Bill as currently drafted (13)

· There should be statutory protection for the statutory roles of chief executive, monitoring and chief finance officers. (3.2)

1.0 Introduction

1.1 Our response considers the Bill under a range of headings which we hope the Committee will find helpful.

2.0 Police and Crime Commissioners

2.1 The stated policy intent behind the introduction of commissioners is to strengthen democratic accountability. However, the Bill as drafted could amount to a significant reduction in the role and power of commissioners compared with existing police authorities. As currently drafted the Bill risks not providing them with adequate capacity or capability to meet the legitimate expectations of the public. For example the commissioner:

· will have to agree the Policing Plan with the chief constable which the chief constable then only has to give ‘regard to’,

· has no formal role with appointments to and discipline of the chief officer team and;

· has no statutory role in respect of community safety partnerships

2.2 It may have been considered that the current governance role is too big for one person and the Bill has therefore sought to diminish that role. In doing so the Bill does not achieve the rebalancing of the tripartite as set out in ‘Policing in the 21st Century: Re-connecting the police and the people’ [1] and risks less effective governance.

2.3 An alternative approach would be to clearly articulate in the Bill the ability to appoint deputy or assistant commissioners to support the commissioner. Consideration also needs to be given to the deputising of all commissioner functions to ensure, for example, the timely setting of a precept.

2.4 Without an appropriate balance between the Secretary of State, commissioner, PCP and the relevant chief officer the proposed model will invite unhealthy conflict, add further bureaucracy and ultimately reduce the governance given to policing locally, regionally and nationally. There will be issues which the commissioner will consider legitimate in their governance capacity but which chief constables will argue are a matter of operational independence. Examples include a promise to increase visibility of police officers in neighbourhoods or the use of sensitive counter-terrorism powers. Strong governance, together with the minimisation of potential conflict and confusion, will only be ensured by high quality and carefully crafted legislation.

2.5 Exercising a power to dismiss a senior individual is usually one of last resort and invariably involves substantial cost. At this level the key governance issues will generally be around performance, capability and capacity rather than conduct. Some less draconian powers to direct would be welcomed.

2.6 The commissioner’s staff must be independent and must be treated as "civil service" officers. The Bill and the Home Secretary in her response to the reform consultation process made it clear that all staff are politically restricted, whereas the Bill allows a commissioner to appoint whoever they wish to fulfil specific duties [2] . In contrast to the provisions for their senior local authority and civil service colleagues commissioners’ staff attract no statutory protection in the Bill (see 3.2 and 3.3 below).

2.7 Commissioners will not be able to use force staff under the direction of control of the chief constable unless the chief constable thinks it is ‘reasonable’ [3] . This means either commissioners will be at the behest of chief constables, or more likely they will require their own staff which raises costs. There will be cases where chief constables decline to let the commissioner use ‘their’ staff, unreasonably in the view of the commissioner, but reasonably according to the chief officer. This weakens the commissioner and needs reconsidering (see paragraph 3.4).

3.0 Commissioners’ support staff

3.1 The role of chief executives is a key element in the successful transition to, and implementation of, any new governance model. Not only do they bring the relevant professional expertise but, together with the other officers who have served police authorities, they will represent essential corporate knowledge and provide continuity, not only for the first commissioners, but also for future administrations.

3.2 We welcome the provisions in the Bill recognising the importance of the role. However, in contrast to the provisions for expressly requiring the continuity of chief constables in their offices under the new governance regime, no similar provision exists for chief executives and chief finance officers (CFO). It is essential these statutory officers are given the level of protection afforded to their local authority and civil service colleagues. We consider this to be a reasonable and necessary safeguard given that the commissioner as employer, will have the power to hire and fire these post holders as well as the chief police officer.

3.3 The explanatory note to the relevant clause of the Bill [4] indicates that the CFO will be the monitoring officer and will have the same powers as their local government counterparts which would preclude the CFO from also being the monitoring officer [5] . Legislation should stipulate the need for such officers. Appointments would then be made by or on the advice of the chief executive.

3.4 To achieve greater visibility and effectiveness the new arrangements will need to provide commissioners with the powers and resources needed to deliver the organisational and cultural change required. Currently, all but a tiny proportion of employees of the police authority are currently delegated to work under the direction and control of the chief officer [6] . Most police authorities share their treasury management, finance and legal, HR departments, estates and facilities management, communications and IT support, analysts and performance and corporate development staff with their force. The Bill provides for all these staff to be capable of being employed by the chief officer [7] . If all such resources are transferred incoming commissioners could have far fewer resources available to them than the police authorities they have replaced [8] and risk not being able to meet the legitimate expectations of their electorate.

4.0 Asset control

4.1 Both the commissioner and the chief constable will be a "corporation sole". However, there is a lack of clarity on ownership of police estate and other assets, contractual capacity and overall responsibility for proper financial administration and internal audit arrangements. The extent to which these functions are transferred to the commissioner or chief constable will determine the influence the commissioner is able to bring to bear and therefore needs to be unequivocal.

4.2 For the chief constable and the commissioner to both hold budgets and have borrowing and contract making powers presents risk and is confusing. That chief constables have this capacity without being the owners of the assets does not accord with good governance principles. All other governance models would provide for the owners of assets to be able to delegate their management. As proposed the commissioner carries the liabilities yet lacks control over any assets except land [9] ;

4.3 Government intention is to re-balance the tripartite, in particular by reducing the central role of the Home Office. However, in reducing the role of the Home Office, the local governance role needs to be strengthened in order to ensure the operational role (chief constable), and the use of the lever of operational independence, does not become dominant to the detriment of legitimate governance. The Government intends that the Bill will add democratic levers but by removing the fiscal and resource levers from the commissioner the risk is that the chief constable is left without sufficient challenge. The electoral mandate alone will not be determinative of a commissioner’s success, particularly if devolution of power from the Home Office to chief constables significantly increases the powers of the latter.

4.4 Chief constables should not be given the capacity to enter into contracts, borrow, or own any assets [10] . The chief constable should be a corporation sole for employment purposes only. This would also avoid the need for two chief financial officers and potentially two auditable bodies [11] .

5.0 Chief Constables

5.1 The appointment process for deputy and assistant chief constables requires less involvement from the commissioner than for a chief constable and the Bill gives no role to the commissioner in ACPO equivalent staff, such as a director of resources. In all other sectors the equivalent of the commissioner would have a highly influential, if not determining role, in such appointments. The involvement of those in a governance role provides a useful safeguard, particularly in a service with a relatively small number of chief officers who are well known to each other. Although the appointment process can be vetoed, no reasons or criteria need be given. The processes for removal of a chief constable from post are also very unusual. There is also an opportunity to provide clarification around temporary and acting appointments which the Bill currently omits.

5.2 The unfettered power given to chief constables to define neighbourhoods for the purpose of engaging with the public without reference to the democratically elected person representing those neighbourhoods may lead to unhelpful conflict between commissioner and chief constable

6.0 Police and Crime Panels (PCP)

6.1 It seems anomalous that a single commissioner will be responsible for the policing arrangements for hundreds of thousands of people in their policing area but a PCP of at least 12 people will be set up to hold to account one commissioner. The commissioner risks spending more time dealing with requests from and problems raised by the PCP than responding to those of their communities and holding the chief constable to account accordingly.

6.2 The Bill provides no overall responsibility or mechanism to ensure that a PCP is established. Schedule 5 of the Bill implies that there is no quorum facility. This risks costly delays in decisions, such as those associated with setting the precept or appointing chief constables.

7.0 Police and Crime Plans

7.1 Any new plan must be agreed by the chief constable which implies that chief constables have a de facto veto for example in the setting of stretching targets to improve policing. We understand from the Home Office that this was not the intention and that this clause will be amended. The drafting also states that chief officers need only ‘have regard’ to the plan which potentially risks priorities not being delivered.

8.0 Co-Operative Working

8.1 There are resourcing implications in this section, as it is unlikely that commissioners will have the capacity to fulfil this personally [1] . Policing areas cover up to 18 CSPs and an individual cannot act in cooperation with so many different partners across so wide a geographical area. To deliver this the commissioner will need a reasonable support team. This reinforces the point raised earlier that commissioners should be able to appoint deputy and assistant commissioners, supported by commission staff.

8.2 The commissioner must be able to influence the work of the LCJBs and CSPs. However if they are not a ‘responsible authority’ they risked being ignored and being unable to fulfil their duty to cooperate. [2] .

9.0 Information to Public

9.1 It is unclear generally how public accountability is to be delivered, beyond annual reports and scrutiny hearings. There is no requirement for example to hold public meetings. There are potential problems with the control and provision of data as currently drafted. The PCP can ask for ‘information’ from the commissioner but the commissioner can only request ‘reports’ from the chief constable. It is also unclear who owns the information held by the force, and therefore who is accountable for it, can access and make use of it; for example information on force performance. Information is key to both the public and commissioner.

10.0 Obtaining Community Views

10.1 There is a new duty on the PCC to obtain the views of victims of crime but data on victims will be held by the chief constable. The proposed duty on chief constables does not go far enough to ensure that commissioners are able to fulfill their statutory functions. This could be addressed through a duty on chief constables to co-operate with the commissioner to enable them to fulfill the commissioner’s statutory functions. [1]

10.2 The inclusion of a duty on the chief constable to consult duplicates the duty on the commissioner and is unnecessary.

11.0 Delegations of Functions

11.1 The ability to delegate functions in accordance with the current drafting of the Bill does not fit with the central concept of democratic accountability [2] . The drafting leads to potential unintended consequences. For example it would not be possible to delegate to the chief constable the collection of consultation information from the public via neighbourhood teams; or to enable the setting of a precept where a commissioner is absent through serious illness; but it would be possible to delegate the holding the chief constable to account to a member of the chief constable’s staff. Any delegations of function should be accompanied by explicit reference to that person being accountable to the commissioner. As previously stated, the commissioner’s staff must be independent of party politics and only those delegations that extend to administrative functions should be permissible for these staff. [3] .

12.0 Complaints:

12.1 While complaints should not be the primary function of the commissioner, their raised profile and accompanying public expectations will mean time will be spent in dealing with complaints. The role of commissioners in complaints must be given greater clarity. Continuing the general police authority function to monitor complaints and ‘intervene’ in non-conduct matters is no more likely to produce prompt, effective and conspicuous resolution when wielded by commissioners than at present.

12.2 We are concerned that the responsibilities of the ‘appropriate authority’ relating to the conduct of senior officers are being passed to the chief officer. This provision, which also gives the chief officer sole responsibility for appointing those officers, is likely to be viewed by the public as lacking sufficient independence, and possibly undermines the principles required by the European Convention on Human Rights [4] . Such an approach, without the involvement of a governing body, creates significant risks.

12.5 We question whether the IPCC is the appropriate body for addressing complaints against commissioners [5] . We suggest that any provisions should mirror those for local councillors or MPs.

13.0 Transitional Issues

13.1 There are major transition issues not addressed in the Bill. During transition the need to prepare for the arrival of commissioners will need to be balanced with the local sovereignty of discretion commissioners are intended to have. In the meantime, strategic planning activity must continue on a local, regional and national basis. This involves some major organisational change programs and collaboration schemes under which parts of the police estate, IT, procurement, infrastructure etc. are being re-positioned.

13.2 It appears the policy intent is to allow commissioners to exercise their functions in a way that they consider best meets local requirements. It is our belief that this can only be achieved if the legislation leaves decisions on the division of assets and transfer of employees to be decided locally by the first commissioners. The option carrying the least risk, bureaucracy and cost, the fewest assumptions and the greatest benefit would be to transfer all assets and employees that are currently maintained by police authorities to the commissioners. This will allow the first commissioners to decide how best to utilise those assets and employees. Not only would this prevent police authorities from having to second guess the requirements of commissioners, it would also be entirely consistent with the aims of the Bill and the Government’s wider policy of localism. Conversely, if irreversible decisions have been taken in advance of their being elected to office, the very first commissioners will have been deprived of a unique opportunity to establish themselves and their offices at the beginning of what is intended to be a period of significant strategic change.

13.3 We accept that much of the detail for revised arrangements will be set out in secondary legislation. Our experience is that equal attention will need to be paid to these provisions. The timetable for implementation of the revised arrangements is a significant challenge and one that calls for early drafting of such instruments.

January 2011

[1] Policing in the 21 st Century: Reconnecting the police and the people. 26 July 2010 HMSO

[2] Clause 16(2)

[3] Clauses 2(3) and 2(5)

[4] Schedule 1 clause 6(1)

[5] s 5(1) Local Government and Housing Act 1989 as amended

[6] s15 of the Police Act 1996

[7] C lause 2(3) and schedule 2 clauses 4 to 6 of the Bill

[8] see 1 4 below

[9] Schedule 2 clause 8

[10] Schedule 2 clause 7

[11] Schedule 2 clause 4, schedule 15 clauses 103 and 106

[1] Clause 10

[2] Clause 10(2)

[1] Clause 2(5)

[2] Clause 18(1)

[3] Clause 18(3)

[4] S ee Smith, G., Every complaint matters: Human Rights Commissioner’s opinion concerning independent and effective determination of complaints against the police, International Journal of Law, Crime and Justice (2010)

[5] Schedule 7, clause 2