Police Reform and Social Responsibility Bill

Memorandum submitted by Lancashire Police Authority (PR 55)

Lancashire Police Authority is pleased to have the opportunity to make a submission to the Public Bill Committee. This submission builds on the response made as part of consultation into police reform carried out over the summer and seeks to highlight those issues which the Authority believes will have a negative impact on the effective delivery of policing in Lancashire, and which were not addressed by the Bill.

Lancashire Police Authority was the first authority to be inspected under the HMIC/Audit Commission inspection regime. It was one of the Authorities which were assessed as a "Good" Authority scoring an overall 3. It is the only Authority to have achieved an "excellent" score of 4 in any category which was achieved for Community engagement.

The Authority acknowledges the Government's wish to replace Bureaucratic accountability with democratic accountability but believes that the Police Reform and Social Responsibility Bill has been drafted in such a way that this is unlikely effectively to be achieved.

This submission does not seek to re-state those sent in by the APA, the Association of Police Authority Chief Executives (APACE) and the Police Authority Treasurers (PATS). It does rather seek to highlight some of the practical concerns that Members of the Lancashire Police Authority have with regard to the Bill in its proposed form.

1. Police and crime commissioners

1.1. The Authority has reservations that a single commissioner with no formally constituted deputy could properly discharge the functions that are planned for that office. It is further of the view that the Bill does not take proper account of the opportunities that were put forward by a number of interested parties for a commissioner with a number of Deputies meeting particular local needs as a mechanism for fulfilling the policy aims of Government and delivering effective Governance arrangements for Policing. In Lancashire, we take the view that the Authority's role has distinct similarities to the board of a large company; we suggest that consideration is given to introducing a mechanism to create a similar function to the board of a company, with the commissioner supported by a mixture of executive and non executive directors. A mixture of elected members of local authorities together with Independent Members would prove an effective commission. It is the strong view of Members that the role is unworkable for one individual. We are further concerned that the Bill as drafted would allow the Commissioner to appoint and pay for deputy-commissioners as members of their staff so long as they held politically restricted posts. In effect this means that unelected paid deputies could be taking decisions but that local councillors could not be co-opted as deputies and paid an allowance.

1.2. Members are actively involved in local community safety meetings, divisional performance reviews, the Authorities own volunteer schemes, as well as their special interest work, involvement in regional and national police organisations, formal meetings and seminars, this gives them a good understanding of the organisation which they can then effectively hold to account.

1.3. The Authority believes that in order to be effective and to deliver the electoral commitments made to local communities they must have both the powers and resources to carry out their role effectively. It is the view of the Authority that in the absence of an appropriate balance of powers and duties and perhaps more importantly real clarity as to the role of the commissioner, chief constable, Secretary of State, Police and Crime Panel there is every likelihood that the model will see increases in bureaucracy, and the development of a "conflict" model of Governance at a local regional and national level.

1.4. We further believe that compared to the existing powers of Police Authorities the Bill will in reality reduce the role and power of commissioners. Much is made of the commissioners power to "Hire and Fire" the chief constable; this will be subject to veto from the PCP. The ability to set the budget is also subject to the potential vetoing of the precept. At present the Police Authority is responsible for the recruitment of ACPO level officers but the commissioner will have no formal role in respect to appointments or discipline of this team.

1.5. The Bill appears to preclude existing police authority members from standing as commissioners [1] .

We would ask the Committee to suggest an amendment to say that members of police authorities should be able to stand for election as a PCC.

We would ask the Committee to reconsider the position in respect of the appointment of officers above the rank of Chief Superintendent and also in respect of complaints relating to the conduct of officers of these ranks.

2. Bodies Corporate, Staffing and contractual responsibilities.

2.1. The Authority enjoys a positive and constructive relationship with the chief constable in Lancashire. Both parties are clear that their roles are different although complimentary. The Authority holds the chief constable to account and it is the authority that is the legal entity which employs staff, holds land and enters into contacts and legal obligations. This is an effective arrangement which works well and delivers appropriate controls.

2.2. It is not clear from the Bill that the role clarity needed for the commissioner and the chief constable to work together effectively will be delivered.

2.3. It is proposed that the PCC and the chief constable will both have the legal status of "corporation sole". We believe that there is a real lack of clarity on ownership of police estate and other assets, the ability to enter into contracts as well as the overall responsibility for effective financial control. An arrangement that sees the chief constable and the commissioner both holding budgets with powers to borrow and enter into contracts is confusing and increases the risks for both bodies. We believe that the position of the commissioner will be significantly weaker than that of police authorities as the commissioner will be responsible for the liabilities without having control over assets. We also believe that the definitions used concerning assets are not clear.

2.4. We are concerned that rather than the current provisions of S15 of the 1996 Police Act (as amended), the proposed arrangements will see the chief constable as the employer of all staff. Although a PCC may employ their own staff (Schedule 1) the implication of this clause is that whilst the chief constable may ‘loan’ force personnel to the PCC, there is neither any requirement for the chief constable to do so nor is there any general duty on the chief constable to co-operate with the PCC. 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.

2.5. One easily foreseeable scenario if there is a major tension between the chief constable and the commissioner regarding resource usage would be for the chief constable to claim a conflict of interest with the commissioner and refuse to let them have use of the resources.

2.6. This scenario is more pronounced in para 7(2) (b) of Sch 2 (and the equivalent para in Sch 4). This is set out below:

7 (1) A chief constable may do anything which is calculated to facilitate, or is conducive or incidental to, the exercise of the functions of chief constable.

(2) That includes-

(a) entering into contracts and other agreements (whether legally

binding or not);

(b) acquiring and disposing of property, apart from land, but only with

the consent of the relevant police and crime commissioner;

(c) borrowing money, but only with the consent of the relevant police

and crime commissioner.

2.7. Para 7 (2)(a) could allow the chief constable to go down a well travelled route such as Public Private Partnerships (PPPs) using private finance to deliver capital investment projects. These could be constructed so that they were contracts to buy back services from a private company and not contracts for real property or contracts to borrow money.

2.8. These could easily fall under para 7 (1)(2) and therefore not require the consent of the relevant PCC.

2.9. We believe that schemes of delegation are effective mechanisms for arranging the role clarity between the PCC and chief constable and that there is no need to undertake the path of creating both as legal entities.

We would ask the committee to consider urgent re-drafting of this clause to re-consider whether it is necessary for the chief constable to be a separate legal entity. We would also ask that further consideration is given to definitions of terms such as "land" and "contract" so that it is clear what the policy intentions are that are being given effect too.

3. Commissioner and Police and Crime Panels

3.1. The LPA believe that it is not sensible to create a structure where a single commissioner will be responsible for the policing arrangements for 1.5 million people in Lancashire but a PCP of at least 12 people will be set up to hold to account one commissioner. We are concerned that the commissioner risks spending more time dealing with issues from the PCP than in consulting and engaging with communities or ensuring the delivery of effective and efficient policing. We are also concerned that there are potential problems with the proposals for setting up the PCP's and this includes a lack of a formal mechanism to establish a bill and an implication is Schedule 5 that there is no facility to establish a quorum. We believe that this could cause problems in ensuring effective decision making and creates a fertile climate for expensive judicial challenge.

3.2. We do not believe that the current proposals for PCP's will put them at the heart of decision making processes neither do we believe that the checks and balances will provide an effective safeguard for the work of commissioners. The PCP has limited powers and will not be able to effectively hold commissioners to account. We believe that the role of the PCP needs to be looked at alongside the role of the commissioner. Whilst the Government recognises that commissioners should come from a wide variety of backgrounds, it is not clear how this can be achieved and whether one individual will be able to represent truly the views of the whole population of Lancashire.

3.3. Lastly we are firmly of the view that that the workload has been wholly underestimated. Under the current proposals a single commissioner will not have the capacity to scrutinise police performance. In Lancashire at present 17 Members and a number of staff are involved in over 40 organisational reviews which form part of the strategic re-alignment of the constabulary to continue to deliver some of the best performance in the country. This includes re-aligning resources and substantially reducing the cost base. The current proposals would not allow this to happen and we believe that the model should be revised to give the commissioner better support and access to relevant information and expertise.

We suggest that the commissioner could chair a wider group of Councillors/Independent Members, analogous to the Board of a company. This would fulfil the Government's aim of having a directly elected individual to hold the police to account, but the Board would also be able to provide checks and balances against politicising local policing, and would also be useful as a mechanism of internal accountability for the commissioner.

4. Commissioner and Community Safety

4.1. The Authority had concerns that the removal of the commissioner as one of the accountable bodies within community safety partnerships would weaken their role. Although the Bill is not specific regarding changes in role, we welcome the proposals for the commissioner to have an enhanced role around community safety and would hope that further details are forthcoming.

4.2. The role of the PCC in obtaining the views of local people and providing the link between the diverse local communities and partners in community safety is vital to assist the Constabulary in "getting it right". In Lancashire we have a variety of means of direct communication to ensure that policing meets local and diverse needs and aspirations.

The Committee is asked to ensure a more effective link between the duties of the PCC in S14 and the Chief Constable in S34

5. Complaints

5.1. Since the introduction of the powers of Police Authorities to intervene in complaints, we have seen an increase in the number of complaints brought to the attention of the Authority. We believe that this will increase very significantly with the increased emphasis from the public on commissioners being available to solve problems.

5.2. We would like to see commissioners given more role in regard to quality of service complaints and can attest to a joint approach between the LPA and Constabulary to putting people first having a positive impact on reducing incivility complaints. We do not support the move to transfer to chief constables the responsibilities to deal with complaints regarding to senior officers conduct and believe that this compromises independence.

We suggest that the bill be amended to give PCC's a real role in determining quality of service complaints and retaining the responsibility for acting as the appropriate authority to deal with chief Officer Conduct complaints. We would also suggest the PCC's should be subject to the same powers in respect of complaints against them as are MP's and Councillors. The IPCC is not created to deal with these types of complaints and is primarily focussed on service failure.

6. Public Consultation

We are pleased that the Bill is increasing the statutory consultation requirements to include consultation with victims of crime. This does highlight the need for the commissioner to have access to consultation data, currently held by the constabulary and for consideration as to whether the non operational staff engaged in analysis and communications within police forces should automatically transfer to the chief constable without some formal requirement that the commissioner will have the ability to make use of them.

We would ask the bill Committee to review the proposals for employment of staff.

7. Elections, Transitional Arrangements

7.1. We understand that much of the transitional arrangements will be put forward in secondary legislation but we would want to highlight the risks in a major change of governance with no shadow or transition period. We welcome the provisions in the Bill recognising the importance of officer support for the PCC. We would ask the Bill committee to consider issues of continuity. The Bill expressly provides for 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.

7.2. We are also concerned that the current arrangements make no provision for deputy commissioners and are not fully clear about issues in respect of delegation. From the

7.3. Police Authorities will set the Policing plan for 2012/13 as well as the Budget for that year. We are already thinking about the most effective ways of doing this to secure a safe transition to the new governance arrangements and are in effect looking to ensure that the difficult decisions that need to be taken now in respect of resource planning and the management of risk are taken.

7.4. The Bill proposes elections in May 2012, and every subsequent four years. The elected person is expected to take up office 7 days after the election, with vacancies being filled within 35 days. We agree with the APA that this has implications for effective transition. We believe that it is essential to have a mechanism for a Deputy commissioner to fulfil all of the key functions of a PCC, such as setting the budget. We are also concerned that there will be no major national elections in 2012. To reduce the costs, the elections should be linked to the EU elections in 2014 or major local elections in 2015. This position is supported by a number of other shire police authorities and by Lancashire County Council and the district Councils in Lancashire. We anticipate that there is a substantial unnecessary cost that could be avoided.

7.5. We are also concerned that the clauses dealing with vacancy and disqualification. Currently the requirements regarding the appointment of an acting commissioner can only be made from the PCC's staff. We do not believe that these arrangements allow for democratic rather than bureaucratic accountability.

 

We do not believe that effective transitional arrangements have been proposed at this stage and would ask the bill committee to ensure that at least a transition framework is clearly stated to allow effective governance to continue through the change period.

We would ask that further consideration is given to the role of the acting commissioner to ensure that key functions can continue to be fulfilled in all circumstances.

January 2011


[1] Clause 66(4)