Police Reform and Social Responsibility Bill


MEMORANDUM SUBMITTED BY THE CHESHIRE POLICE AUTHORITY (PR 79)

The Authority welcomes the opportunity to make a submission to the Committee. We have sought to be constructive with a view to achieving a workable solution. Nevertheless, whilst welcoming a number of proposals in the Bill, including the shift away from central prescription, the Authority still has a number of concerns. Based on our extensive experience and knowledge, we believe the Bill will weaken public accountability of policing, significantly increase bureaucratic accountability and create Commissioners with limited powers to discharge their mandate. The balance of power will be damaged and the Authority believes their will be a negative impact on service delivery in our communities.


POLICE AND CRIME COMMISSIONERS

The Bill, unless amended, will weaken police accountability. PCCs will have a significantly reduced role and fewer powers than existing Police Authorities and the current tripartite structure will be further unbalanced. For example, the Commissioner:

· will have to agree the Policing Plan with the chief constable (and agree any in year changes) 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

· has no statutory role in respect of community safety partnerships

· has a weakened role with the creation of two corporate soles

· has fettered powers as the Police and Crime Panel will have the power to veto major decisions.

If the Coalition Government accepts that governance and accountability of policing is critical, then this critical role must not be reduced and limited to fit a single person to achieve Government ideology. The role is clearly too important and large for one person to perform, therefore the Government must ensure appropriate capacity and capability is provided in the form of Deputy/Assistant PCCs to ensure the PCC can effectively discharge the PCC’s duties and ensure policing is publicly accountable.

The Authority would argue for the PCC to retain the current employer status of police authorities which would remove the need for the creation of two corporation soles. Matters such as employment policy and remuneration may have a significant impact on the budget and as such, these policy decisions should rest with the PCC.

Without an appropriate balance of powers, duties and clarity of roles between the Home Secretary, PCC, PCP and the chief constable the proposed model has the potential for unhelpful conflict, unnecessary bureaucracy and inadequate governance. For instance, the Chief Constable must ‘exercise the power of direction and control in such a way as is reasonable to assist the PCC’. There is a potential for conflict between the two parties over the definition of what is reasonable. Instead, the Chief Constable should be under a general duty to assist the PCC.

The Authority opposes the proposal to appointment a member of the Commissioner’s staff as Acting Commissioner in the absence of the PCC. The Coalition Government has made it clear in its response to the consultation exercise and during the second reading in the House of Commons that all the PCC’s staff will hold politically restricted posts – which the Authority fully supports. Therefore, these public/civil servants must not be placed in a political role, discharging the full powers of the Commissioner on behalf of the people. Additionally, this would lead to conflicts of interest arising if, on returning to their substantive post, the member of staff was subsequently involved in reviewing decisions they had taken whilst Acting Commissioner. The current proposals confuse the role of elected persons (the power) and their staff. This further demonstrates the urgent need for a mechanism to be introduced which enables the appointment of Deputy and Assistant PCCs to provide support to the PCC. If this point is accepted, then the Deputy PCC could act in the PCC’s absence.

The circumstances in which a PCC can be classified as incapacitated are ambiguous; the current criteria relating to Police Authority members should be applied [1] .

The PCC should also be under a specific duty to secure value for money in the operation of the police force and their office.

ELECTIONS

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.

The PCC should be required to provide notice of resignation to their Chief Executive not the appropriate officer as currently drafted. The Chief Executive should then inform the appropriate officer for election purposes.

The supplementary vote system will need to be effectively publicised by the Electoral Commission to ensure the public understand it and are prepared to vote.

PCC’S SUPPORT STAFF

Existing police authority staff must transfer to the PCC under their existing terms and conditions, in accordance with TUPE Regulations, to ensure that corporate knowledge and experience is not lost and unnecessary redundancy costs are avoided. This was possible in 1994 under the Police & Magistrates Court Act, when police authorities were established in their current form. Protection for the Commissioner’s staff must also be included. Staff should be treated as the ‘civil service’ and transcend PCCs in order to ensure that corporate knowledge is not lost through each new Commissioner appointing their own team.

As statutory officers, chief executives and chief finance officers (CFOs) should be given the level of statutory protection afforded to their local authority and civil service colleagues. This would be fair and provide a reasonable safeguard given that the PCC as employer will have the power to hire and fire these post holders and as the Bill provides for continuity of Chief Constables.

The explanatory note to the relevant clause of the Bill [2] indicates that the Chief Finance Officer will be the monitoring officer but will also have the same powers as their local government counterparts in finance – this would preclude the CFO from being the monitoring officer [3] . As is current practice, the Chief Executive should be the Monitoring Officer or appoint another member of staff to the role.

CONTROL OF ASSETS

As drafted the Bill makes both the PCC and Chief Constable ‘corporation soles’. For both to hold budgets and have borrowing and contract making powers presents unnecessary risks is confusing and overly bureaucratic. 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 [4] . Chief constables should not be given the capacity to enter into contracts, borrow, or own any assets [5] , thus avoiding the need for two chief financial officers and potentially two auditable bodies [6] .

CHIEF CONSTABLES

The proposals for the appointment of DCCs and ACCs is an unnecessary shift in roles, at the very least it should be the PCC making appointments jointly with the Chief Constable. Direction and leadership of the force are critical areas for the Commissioner and the suggested arrangements will only weaken their role. Under the proposed arrangements, the Chief Constable will largely be unaccountable for the personal appointments they make in respect of DCCs and ACCs. This could give rise to challenges about appointments and their basis.

POLICE AND CRIME PANELS (PCP)

It seems anomalous that a single PCC will be responsible for holding the police to account on behalf of over a million people in Cheshire, but a PCP of at least 12 people will be set up to hold to account one PCC. This introduces an additional layer of costs and bureaucracy and risks the PCC spending more time dealing with requests from and problems raised by the PCP than holding the chief constable to account.

The functions of the PCP should be revised to include, for example, the monitoring of PCC policies and finance and where directed by the PCC to assist the PCC in discharging their functions. To fulfil its role effectively the PCP will require a budget and full time secretariat.

The PCP must discharge its functions in public and the Access to Information legislation should be applied to the Panel’s meetings to enable certain restricted information to be considered.

If the PCP is not subject to formal vetting procedures it must be required to respect the restricted nature of some information/data that would need to be made available to it to perform its role. Definitions of areas for non disclosure would also be beneficial.

POLICE AND CRIME PLANS

The Authority understands that it was not the Home Office’s intention that any new plan must be agreed by the Chief Constable and that this clause will be amended accordingly. The need to agree any in year changes with the Chief Constable must also be removed.

The PCC should be under a duty to provide policing services to meet the threats and risks in an area not just those visible services that attract votes. This duty should extend to including the approach to all levels of policing in the Plan.

The current requirement for the Plan to contain a value for money statement should be retained as a lever to drive value for money.

There is potential for unintended consequences for transition if the first financial year of the PCC commences from their first day of office. This could result in two sets of accounts and two audits and the implications of this will need further consideration.

ANNUAL REPORTS


In carrying out their functions, the PCC is to have regard to any recommendations made by the PCP in relation to the annual report for the previous year. For this to be effective, the annual report will need to be prepared promptly at the year end or a substantial proportion of the next financial year will have passed before the PCC will be required to consider the PCP’s recommendations.

DELEGATION OF FUNCTIONS

The ability to delegate functions in accordance with the current drafting of the Bill does not fit with the central concept of democratic accountability [7] . The drafting leads to potential unintended consequences. For example, as currently drafted, the PCC could delegate responsibility for holding the Chief Constable to account or delegate functions to members of police staff who are under the direction and control of the Chief Constable. Furthermore, any delegation should require that the person exercising a function on behalf of the PCC is accountable to the PCC for the exercise of that function. PCC should be prevented from delegating functions to any police officer, not just those in England and Wales.

CRIME AND DISORDER

The PCC must be able to influence relevant partners if their Police and Crime Plan is to be effective in delivering improvements in community safety and crime reduction. However, if the PCC is not a ‘responsible authority’ they have no statutory role and could, therefore, be ignored. The PCC should be a ‘responsible authority’ and their Police and Crime Plan should be taken into account by CSPs in developing any local plans. Greater clarity is required in the Bill on the role of PCCs and responsible authorities or there is a risk of confusion between partners which will be detrimental to the delivery of community safety.

In respect of crime and disorder reduction grants, appropriate checks and balances should be introduced to ensure the proper use of public funds. The PCC should be required to have regard to advice from their Chief Finance Officer before making such grants or a role for the PCP in ensuring the grants are used as agreed by the PCC. Public transparency is essential and details must be published and audited as part of the Statement of Accounts.

The requirement for the PCC and criminal justice bodies to exercise their functions so as to provide an efficient and effective criminal justice system may create additional resourcing requirements for the PCC. This reinforces the earlier point that Commissioners must have Deputy and Assistant Commissioners if they are to have capacity to perform their duties effectively.

INFORMATION TO PUBLIC

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. The PCC decision making processes should be transparent and undertaken in a public setting, with the application of the Access to Information legislation, to preserve restricted information.

The PCC is not prohibited from publishing, or requiring the Chief Constable to publish, a report containing sensitive information which it would not be in the public interest to disclose. Appropriate safeguards should be put in place to prevent sensitive information being published inappropriately.

OBTAINING COMMUNITY VIEWS

The inclusion of a duty on the chief constable to consult duplicates the duty on the PCC and is unnecessary. Also, the PCC should not be under a duty to consult the Chief Constable before making arrangements to obtain community views and clause 14(4) should be removed.

The PCC should be able to challenge the Chief Constable on how neighbourhoods have been defined.

CONDUCT AND COMPLAINTS ISSUES

Complaints should not be the primary function of the PCC, but the raised profile and public expectation will mean time will be spent in dealing with complaints. The role of PCCs 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 PCCs than at present.

It is suggested that the PCC should be subject to the same standards of conduct that Police Authority Members and MPs are subject to at present. The Bill enables the Secretary of State to make regulations regarding complaints and conduct matters in respect of PCCs. These regulations must be defined at the earliest opportunity to enable potential candidates for PCC to be aware of the conduct/standards that will be expected of them in advance of taking a decision to stand for election.

The Authority also has concern about the level of information that the PCC will be able to access without a formal vetting mechanism in place.

The PCPs power to suspend the PCC if they have been charged with an offence should not be restricted to offences which have occurred within the UK.

TRANSITIONAL ISSUES

There are major transition issues not addressed in the Bill. As the Bill is currently drafted, it would appear that Commissioners will take over immediately following their successful election and therefore no handover period will be allowed. The Authority would argue that some period of transition or shadowing arrangement is essential to ensure a smooth transition into the new arrangements. The Bill is lacking any detail on how this will actually operate. Authorities are now faced with the prospect of establishing the new arrangements in just over a year with little or no guidance on how the transition period will look.

The requirement for existing Members to resign if they wish to stand for election as PCC is unnecessary and treats this election differently to other elections for public office. The same provisions should apply as to a Member seeking to be elected as an MP or as a Mayor. That is, they can continue serving on the Authority once nominated and throughout the election process.

SUMMARY OF CONCERNS

The Authority continues to oppose the Bill proposals for PCCs as the Authority considers the Bill will increase the democratic deficit, not decrease it, as the Coalition Government has suggested; will increase bureaucratic accountability and weaken public accountability and further unbalance the tripartite structure by shifting power away from those exercising public accountability to Chief Constables.

The Authority has not seen any evidence of measurable benefits from the changes outlined. Police Authorities have done an excellent job in improving the governance of policing since their inception in 1995. According to the most recent British Crime Survey, crime is at its lowest for three decades. The Authority was inspected in 2009/10 and assessed as a good Authority "performing well and improving".

There is no evidence locally that the public want changes to the governance of policing – only 9% of respondents in a recent local survey felt that direct elections would make the Authority more representative of the local community.

The proposed model risks over politicising policing, which has been avoided under the current governance arrangements.

The costs of the new model will be far in excess of the existing cost of police authorities and no justification for this has been provided in a time of austerity and reducing public sector expenditure.

The Authority has reservations about the ability of one individual to effectively represent the entire population of Cheshire (a million plus people) and actively engage with them. The reduction in Independent Members on the Police and Crime Panel (PCP) also compounds the potential for a lack of diverse representation in police governance and, coupled together, these factors could adversely affect public confidence in the police service.

The proposed arrangements for supporting the Commissioner are unworkable. In the absence of a Commissioner, a politically restricted member of the Commissioner’s staff cannot be appointed as an Acting Commissioner. The Commissioner’s staff must remain as civil/public servants who transcend administrations or there is a risk of a loss of significant corporate knowledge and experience if a new support team is appointed by each PCC.

The PCP still have very limited powers and the Government’s proposals do not provide adequate support structures, which could render the Panels ineffective. In addition, many of the procedures laid out for the exercise of the Panel’s functions are overly bureaucratic and will be costly to operate. In particular, the suggested process for the Panel’s consideration of the precept is unworkable in the timeframe available to set the budget following announcement of the grant settlement.

January 2011


[1] s24 Police Authority Regulation 2008

[2] Schedule 1 clause 6(1)

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

[4] Schedule 2 clause 8

[5] Schedule 2 clause 7

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

[7] Clause 18(1)