Anti-Social Behaviour, Crime and Policing Bill

Written evidence from John Randall the Independent Chair, Police Negotiating Board and Police Advisory Board for England and Wales (ASB 02)

Introduction

1. The Anti-social Behaviour, Crime and Policing Bill proposes the abolition of the Police Negotiating Board and its replacement by a Police Remuneration Review Body; and the ending of the requirement to consult the Police Advisory Board for England and Wales on the making of certain Police Regulations, consequent on the transfer of responsibility for those Regulations from the Home Secretary to the College of Policing.

2. In the first part of this note I set out the background to these proposals, and in the second part I comment on the clauses of the Bill dealing with these changes.

Part One: the background to the proposed changes

The Origins of the Current Negotiating and Consultative Machinery

3. The origins of the negotiating and consultative machinery for the police service go back to the Police Act 1919 and the final report of the Desborough Committee in 1920. The Act made it a criminal offence for a police officer to strike or to be a member of a trade union. The Desborough Committee proposed the establishment of a Police Council as a consultative body. The history of the development of the Police Council over some six decades is summarised in Chapter 10 of Tom Winsor’s Final Report on police officer and staff remuneration and conditions.

4. The Edmund-Davies inquiry, appointed in 1978, recommended the establishment of the Police Negotiating Board as an independently chaired, statutory body. PNB was established by the Police Negotiating Board Act 1980, with a UK-wide remit and an independent chair [1] appointed by the Prime Minister. The Staff Side comprises representatives of the staff associations representing all ranks of police officers, and the Official Side is made up of representatives of the bodies maintaining police forces [2] , officials representing the Ministers with responsibility for policing, and representatives of chief police officers. The Independent Chair is supported by a Deputy Chair and an Independent Secretary, and each Side maintains its own secretariat.

5. The Police Advisory Board is a consultative body which inherited the consultative and advisory role of the original Police Council. Like the Police Council, it was chaired by the Home Secretary. The Board dealt with matters at a level of detail which was not really appropriate to a senior minister and in 2000 the then Independent Chair of PNB was invited to chair PABEW also, an arrangement which has continued to this day.

Strengths and Weaknesses of Negotiating Machinery and Pay Review Bodies

6. Negotiating bodies and pay review bodies each have strengths and weaknesses.

7. The main strength of negotiating machinery is that it engages directly with those who will have to live with the outcomes of the pay determination process. Whilst those outcomes will often represent a compromise between the opening positions of the two Sides, it will be a compromise which each is willing to accept. There is consent to and ownership of the outcome.

8. The main weakness of negotiating machinery is that it may be perceived as cumbersome, partly as a result of the process of securing the consent of all parties. Negotiating machinery tends to be better at managing incremental change and less good at handling radical alterations to conditions of service. I discuss these points more fully below, in relation to the experience of PNB.

9. The main strength of a pay review body is that it is evidence based, with decisions being taken by disinterested, independent members. It may thus find it easier to deal with major alterations to conditions.

10. The main weakness of a pay review body is that those directly affected are not parties, through their representatives, to the decisions reached. They are limited to the submission of evidence. This can make it harder for a matter to be resolved directly between representatives of management and staff, and there may not be the same ownership of outcomes.

11. Neither mechanism is perfect; there are examples of success and failure of each. There is not a single right way of determining pay and conditions. Professional negotiators should be able to work effectively with either mechanism.

The Recent History of PNB

12. For most of its existence, PNB has not negotiated, in any meaningful sense, the most significant conditions of service, namely basic pay and allowances. The Edmund Davies Report sought to de-politicise police pay by ensuring that it moved broadly in line with pay elsewhere in the economy. Police pay was linked to movements in an agreed index. Whilst the structure of the index, and in particular the extent to which it reflected the public and private sectors of the economy, changed slightly over time, the principle of indexation remained largely intact until relatively recently. Rather than having to negotiate rates of pay, in most years PNB merely presided over the annual application of an agreed index to all pay points and all allowances. Negotiations were mainly on ancillary matters.

13. Inevitably, with the available budget being spent largely on uprating a current structure, major reform was difficult. The main attempts to undertake more radical reforms came in 1994 (the Sheehy Report) and through negotiations in 2002 (which introduced Competency Related Threshold Payments, Special Priority Payments and some pay scale restructuring).

14. In 2006 the Official Side first proposed a move away from indexation. Following an arbitration award which supported the index-based claim made by the Staff Side, the Government appointed Sir Clive Booth to review pay arrangements. In his first report he recommended an altered approach to indexation in the short term, and in his second report he recommended a move to a pay review body. The latter proposal was not proceeded with, following a settlement in which the Staff Side accepted a three year pay deal, the latter stages of which were honoured by the current Government.

15. It is only with the ending of indexation that the Sides have had to conduct negotiations, in any meaningful sense, on basic pay, on a regular basis. This has required a major change in culture, and a development of new expertise, particularly on the part of the staff associations whose experience of conventional pay bargaining had been limited. In other circumstances, the progress of the Staff Side up a steep learning curve, from a sense of entitlement to receive the proceeds of an index, to the give and take of negotiation, might have been seen as commendable. However, the movement they felt able to offer in negotiations did not match the expectations of an Official Side with a strong reform agenda, underpinned by the Winsor recommendations.

Perceptions of PNB

16. PNB is sometimes perceived as a cumbersome body, and this may have influenced the decision to propose its replacement by a Police Remuneration Review Body. It is worth reflecting on the factors which may have contributed to that perception, not least because, in my view, the status quo of a negotiating body as presently constituted is not a sensible option. The Scottish Government proposes to maintain negotiating machinery for the determination of police officer pay, and it would be sensible for lessons to be learned from the recent experience of PNB when establishing that machinery. Those lessons concern the size of the negotiating body, and the terms on which arbitration may be available.

17. The size of PNB contributes to the perception of a cumbersome body. It has 22 members on each Side, plus the independent element (Chair, Deputy Chair and Secretary), a total of 47 people. With advisers in attendance, it is common for 60 people to be present. The meetings combine, and to an extent confuse, two separate functions.

18. The first function is negotiation. In practice, this is carried out in smaller, so-called "behind the chair" meetings, typically involving no more than a dozen people in total. The second is the process of consultation with stakeholders, and securing a negotiating mandate from them. This is achieved by each Side having present, in its team of 22 people, representatives of their main stakeholders.

19. The confusion of the negotiating and consultation processes hampers negotiation. It is not possible for 22 people from each Side to take part in meaningful negotiation. Nevertheless, their presence on the day of the meeting creates an expectation of engagement. That slows down the process on the day, as even minor changes of position have to be reported back and agreed. The expectation of engagement extends beyond the meeting itself, with a need to involve a relatively large number of people in the formulation of detailed negotiating positions, simply because they form a part of the team of 22 people who make up each Side. This slows down the process of developing and exchanging "without prejudice" positions between meetings.

20. This may be more of a problem for the Official Side than the Staff Side, as the Official Side has to coordinate a wider range of interests. Reconciliation of those interests is made much harder by the sheer number of people whose consent is required, not to the outcome of negotiations, but to the minutiae of the process.

21. In most negotiating structures, negotiating teams are relatively small, and there is a separation between the processes of negotiation and consultation. A negotiating team is given a broad mandate by its stakeholders, possibly including limits beyond which it cannot go without referring back, and the outcome is then put to stakeholders for acceptance or rejection. In my report [3] to the Home Secretary in 2006 I recommended a substantial reduction in the size of PNB, such that it comprised only those now engaged in the "behind the chair" negotiations. Consultation with stakeholders, and the question whether a group of stakeholders should be available for consultation on the day of negotiating meetings, would be matters entirely for each Side. My recommendation did not find favour with the Sides at the time, and no reduction was made in the size of the Board.

22. The terms on which arbitration is available has become a significant issue. The length of time taken, from first reference of a matter to PNB, to arbitration if no agreement is reached, and then to eventual decision by the Home Secretary, contributes significantly to the perception that the machinery is cumbersome. In recent years this total process has taken 9 months, although the PNB negotiations have occupied only 3 months.

23. I have taken the view that the three elements of the ‘social contract’ underpinning the prohibition on police officers taking industrial action are the entrenchment of the negotiating machinery in primary legislation, the involvement of an independent element in the negotiating process, and unilateral access to arbitration. In the light of experience, I am no longer convinced that the current arrangements for unilateral access to arbitration, or for automatic referral of a matter subject to a Direction from the Home Secretary to arbitration in the event of a failure to agree, are appropriate.

24. If a system of collective bargaining has built in to it automatic access to arbitration, such access can have a chilling effect on the negotiating process. The Sides may be reluctant to move from their opening positions, or to make concessions, for fear that their movement will not be matched by movement from the other side, and to preserve an opening position so as to be able to argue for it at arbitration. For their part, arbitrators can be frustrated by open-ended terms of reference which do not clearly define the differences between the Sides, and which place them in the position of conducting a fundamental review of a condition of service, rather than resolving a clearly defined point of difference.

25. The chilling effect has been observable in the most recent negotiations on the recommendations of Tom Winsor’s report. It appeared to me that, to different degrees, both Sides were sometimes conducting themselves with a view to defining or preserving positions they would wish to advance at arbitration, as much as with a view to reaching a settlement.

26. Given that progression to arbitration is, in effect, automatic in the event of failure to reach agreement, such positioning is understandable, and perhaps inevitable. Recourse to arbitration has been a regular feature of PNB negotiations throughout the thirty-odd years for which the Board has existed, in its present form. Whilst there have seen some years in which there have been no references to arbitration, in about half of all years since 1979 there have been one or more references to the Police Arbitration Tribunal (PAT).

27. In recent years, with the ending of indexation, references to arbitration have become more substantial, in that they have dealt with the main annual pay review, rather than with ancillary matters. In the last two years, where there have been failures to agree on the reforms recommended by Tom Winsor, the matters referred to arbitration have been very substantial indeed. This has added significantly to the time required by the PAT to make an award.

28. The status of PAT awards was the subject of a judicial review in 2008, following the decision of the then Home Secretary not to accept in full an arbitration award. The High Court held that there was no legitimate expectation that an arbitration award (or a PNB recommendation) would be implemented, only a legitimate expectation that the Home Secretary will not lightly set aside a PNB recommendation or PAT award, and will only set aside for good reasons. The Court found that, in the case before it, the Home Secretary had reasons which she was entitled to regard as being of greater weight than the PAT award, and she had explained those reasons with sufficient clarity.

29. A perceived value of arbitration is that it can bring finality to a dispute. In the case of a PAT award, this is not necessarily the case.

30. The chilling effect of automatic reference to arbitration is now so pronounced that I believe it would be sensible for those determining the procedures for the new Scottish negotiating body to consider omitting any unilateral or automatic reference to arbitration.

31. It is instructive to compare progress on matters of police conditions of service which are not subject to arbitration with progress on matters which are so subject. There is no recourse to arbitration from the Police Advisory Board for England and Wales (PABEW), and it is known that Ministers attach significantly greater weight to unanimous recommendations than majority recommendations. PABEW has a good track record in reaching agreements, often on complex and sometimes controversial matters. The absence of the ‘chilling effect’ is very obvious, with momentum towards agreement usually being established at an early stage. Similarly, discussions between the PNB Sides on pensions have been constructive, notwithstanding the difficulty of the subject matter, and a measure of agreement has been achieved. Pensions matters are not arbitrable, and the absence of the facility of arbitration appears to have made agreement more likely, rather than less likely.

32. Arbitration still has a role to play, if only, in the phrase of my predecessor Sir Laurie Hunter, as "an agreed constitutional method of getting the parties off the hook". [4] However, it should not be automatic, nor should there be unilateral access to it. To end the chilling effect, it should be available only if the two Sides agree that a reference to arbitration is the most appropriate way forward.

The Police Advisory Board for England and Wales

33. Whilst there have been criticisms of PNB, PABEW has been widely regarded as a successful advisory and consultative body. When chaired by Ministers it had become moribund, but since becoming independently chaired it has developed in to an effective and efficient body. Its membership is drawn from the same organisations as PNB, but for England and Wales only [5] , with the addition of the unions representing police staff. It is smaller than PNB and is one of the few bodies representing all of the interests which make up the so-called ‘policing family’. PABEW does not operate through opposing Sides; each organisation contributes its views directly. It has a tradition of operating by consensus.

34. The Board operates through two standing sub-committees, one dealing with matters concerning recruitment, progression and deployment and the other dealing with matters of conduct and discipline. In broad terms, it is the business of the former sub-committee which will transfer to the College of Policing. PABEW will remain to deal with its other business, and it will acquire from PNB the consultative role in relation to pensions. As the Police Remuneration Review Body will not be, by definition, a body representative of those who contribute to and are members of the police officer pension schemes, it is proper that the consultative function should transfer to PABEW, which is so representative.

Part Two: the changes proposed in the Bill

Clauses 112 and 113: Replacing the Police Negotiating Board with the Police Remuneration Pay Review Body

35. As noted above in paragraphs 6 – 11 both negotiating bodies and pay review bodies have their strengths and weaknesses. Whether a pay review body for police officers should be introduced has been debated at length, with both the previous government (following the Booth Report) and the current government (following the Winsor Report) favouring such a change. Given the reforms I believe to be necessary, and which I discussed in the first part of this note, I do not regard the status quo as a satisfactory option. The real choice is between a considerably reformed negotiating machinery and a pay review body. Police officer pay is the major element of the budget of all police forces, and is a significant element of overall public expenditure. The government is entitled to take a view on the pay determination mechanism it considers best serves the public interest.

36. PNB itself cannot properly take a corporate view on its own future. Its members include officials who must reflect the views of the elected government. On matters such as this, it has always been accepted that the other constituents of PNB will express their views individually. My own impression is that many constituents would prefer to retain negotiating machinery but, as professional negotiators, will now prepare to work effectively with the new arrangements.

37. In my view, the most significant change brought about by Clauses 112 and 113 of the Bill is that they mark the end of UK-wide determination of police pay and conditions of service. Since responsibility for policing and related justice matters was devolved to Scotland some fifteen years ago, and more recently to Northern Ireland, there has always been the potential for governments in the three policing jurisdictions to pursue different policies on conditions of service matters. Significant divergence resulted from the establishment of the Winsor Review on an England and Wales basis only, and the decision of Scottish Government that it did not wish to implement the Winsor recommendations in Scotland.

38. PNB recognised that this development required changes to its own procedures and, since last year, it has delegated responsibility for all matters relating to pay and conditions of service in Scotland to a Scotland Standing Committee, with membership drawn from the Scottish constituents of PNB. The Independent Chair of PNB chairs the Scotland Standing Committee, and PNB as a whole is able to take an overview of conditions of service across the UK, where it thinks it necessary to do so.

39. Once PNB is abolished there will be no single body able to take an overview of conditions of service across the United Kingdom. Nevertheless, there is a strong case for retaining a degree of commonality in certain conditions of service applying to police officers throughout the UK, so as to facilitate inter-operability and career movements between forces in all parts of the UK. Chief Officer posts are often filled from outside the jurisdiction in which the vacancy arises [6] , and mutual aid is frequently provided on a cross-border basis. Specialist experience, in counter-terrorism and some other fields, may be developed more readily in some forces than others, so specialist posts may be filled by recruitment from other forces, rather than promotion from within.

40. Mutual aid arrangements often involve large numbers of police officers working across jurisdictional boundaries. The Olympic Games in 2012 provide a recent example, and the G8 conference, held this month in Northern Ireland, involves some 3,500 officers from elsewhere in the United Kingdom serving temporarily in Northern Ireland. There has already been some divergence in arrangements for payments of overtime and allowances to officers held away from home on duty, and this can add complexity to already challenging policing operations.

41. Consideration should be given to whether a duty should be placed upon both the Police Remuneration Review Body and the new Scottish negotiating body to have regard to facilitating inter-operability and career movement on a UK wide basis and, in pursuance of that, to liaise, as appropriate, with each other.

42. For the Police Remuneration Review Body, any such duty might be best included within the annual remit letter sent by the responsible Minister to the chair of the Body under new section 64B(5)(b) which would be inserted in the Police Act 1996 by Clause 113 of the Bill. Such a duty would not mean that conditions of service should be identical in all parts of the United Kingdom. However, to the extent that they diverged, care should be taken to guard against creating unnecessary impediments to career movement or inter-operability, with due weight being given to the benefits of shared experience and the ease of provision of mutual aid.

Clause 114 (1): Senior Salaries Review Body to be responsible for the pay and conditions of Chief Officer ranks

43. Clause 114 provides that the pay and conditions of service of members of police forces above the rank of Chief Superintendent [7] shall be subject to recommendations from the Senior Salaries Review Body. I welcome this proposal; which endorses a recommendation I made some seven and a half years ago that consideration should be given to the pay of the chief officer ranks being determined by, or on the advice of, the Senior Salaries Review Body. [8] There is merit in considering the remuneration of senior police officers alongside that of the holders of comparable senior posts elsewhere in the public service. The reserve power for the Secretary of State to refer a matter affecting both chief officer and other ranks to the Police Remuneration Review Body is sensible.

Clause 105 (4): Police Advisory Board for England and Wales no longer to be consulted on certain Police Regulations

44. Clause 105(1) gives to the College of Policing the power to draft certain Police Regulations, and places a duty on the Secretary of State to make such Regulations in the terms of the draft unless it would be wrong to do so. The Regulations concerned are those mentioned in section 50 (1) (a), (b), (c) and (g) of the Police Act 1996, which cover the ranks to be held by members of police forces, qualifications for appointment and promotion, probationary service and the maintenance of personal records. All of these matters, with the exception of promotion (currently dealt with by the Police Promotions and Examinations Board) now fall within the remit of PABEW, in that before making such Regulations (or Determinations under them) the Home Secretary must consult PABEW. These matters make up most, if not all, of the business of the Board’s Recruitment Sub-Committee.

45. A consequence of these matters passing to the College of Policing is that responsibility for providing advice on them will be removed from the terms of reference of PABEW. Inevitably, there is a sadness at this reduction in the scope of the remit of PABEW, not least because I believe that PABEW has been effective in its consultative and advisory role in relation to these matters.

46. Nevertheless, it is right that the responsibility to consult on these matters should pass to the College of Policing. Those who will be affected by Police Regulations have a reasonable expectation that they will be consulted, through an open consultation process and via representative bodies, before new regulations are made. Much of the consultation which the College will need to carry out to meet that reasonable expectation will be with the bodies now represented on PABEW, all of whom will be represented within the governance structure of the College of Policing. There is an obvious risk of duplication, and a danger that PABEW could come to be seen as a bureaucratic hurdle added to the decision making process. PABEW will retain important responsibilities in relation to matters of conduct and discipline, and will acquire (from PNB) a new responsibility as the consultative body on pensions matters. Effective discharge of its remaining and new responsibilities could be hampered by any perception that, in relation to matters which are now passing to the College, it was adding burden rather than benefit. It is better that the entire responsibility for these matters has a single home.

47. It will be important that the success of PABEW as a consultative and advisory body is carried in to the processes of the College of Policing. PABEW operates in a consensual matter, it does not have "sides" in the way that a negotiating body does, and it is constantly aware that its advice carries greatest weight when it is unanimous and is thus seen as representative of the entire policing family. I hope these characteristics will continue to be found in the consultative processes of the College.

48. There are two aspects of the PABEW process which the College may wish to reflect upon. The first is that it provides continuity in consultative machinery. A few years ago there was a plethora of short-life working groups, established by the Home Office to consult on a range of issues, whose life turned out to be anything but short. Such groups had a tendency to keep themselves in existence ‘just in case’, often on the basis that having completed their task, they should remain in being so as to be able to review implementation. All of those groups were closed down, with PABEW taking over such functions as needed to continue. A standing consultative machinery is able to be consulted on implementation matters, should that be necessary, and can deal with a range of issues.

49. The second issue is the nature of consultation. Consultation only at the point at which draft Regulations have been prepared is rarely effective. The experience of PABEW is that consultation works best when it takes place on the substantive issues of policy and practice before they are translated in to Regulations, Determinations, Codes of Practice or formal guidance. This ensures that issues are resolved before, rather than after work is put in to drafting the regulations or other instruments themselves. Also, it avoids a situation in which issues of policy or practice are raised for the first time after regulations or other instruments have been drafted, leading to delay if re-drafting is then needed to accommodate them.

50. The Recruitment Sub-committee of PABEW now deals with the matters which will pass to the College of Policing. The Sub-committee has a significant overlap of membership with the Police Promotions and Examinations Board, and I welcome the decision to unite these two closely related functions within the College. The Sub-committee meets three times each year, and is already used extensively as a consultative forum by those parts of the College concerned with recruitment. Specifically, the Sub-committee has an extensive involvement with policy developments relating to the SEARCH assessment centres which are used for the recruitment of police officers.

51. The College may wish to consider maintaining a body constituted similarly to the Recruitment Sub-committee of PABEW, with a comparable frequency of meetings, to act as a part of its own consultative machinery, chaired by an appropriate individual from the College’s Board or senior management. Whether the College wishes to proceed in this way, or differently, is a matter for it to determine. In any event, I look forward to working with the College to ensure a smooth transition from the existing role of PABEW to the new arrangements.

Clause 114 (3), (4) and (5): Consultation on pensions matters to pass to the Police Advisory Board for England and Wales

52. In general, the terms of reference of the Police Remuneration Review Body will be those which currently apply to the Police Negotiating Board. Pensions matters are consultative, rather than negotiable (in that there is no access to arbitration) but are within the terms of reference of PNB. It would not be appropriate for the Police Remuneration Review Body to succeed to this consultative role as it will not be, by definition, a body representative of those who contribute to and are members of the police officer pension schemes.

53. PABEW is representative of those interests, and it is entirely appropriate that the consultative role, with respect to pensions, should pass to it. Clause 114 (3), (4) and (5) provides for this.

54. The Secretary of State is obliged also to consult Northern Ireland interests on pens ions matters. [9] PABEW has often invited colleagues from Scotland and Northern Ireland to attend its meetings when matters of interest to them are under consideration. I have no doubt that PABEW will be happy to facilitate the consultation with Northern Ireland interests envisaged in these sub-clauses by inviting the representative bodies concerned to attend relevant meetings, and to participate directly in any working groups dealing with pensions matters.

June 2013


[1] PNB has been chaired by Lord Plowden (1980 – 1983), Sir Harold Atcherley (1983 – 1986), Sir Laurie Hunter (1986 – 2000), Professor Jon Clark CBE (2000 – 2004) and John Randall (2004 to date).

[2] In England and Wales these bodies were originally local authorities, then Police Authorities until November 2012 and are now Police and Crime Commissioners and the London Mayor’s Office for Policing and Crime (MOPAC).

[3] “Collective Bargaining for a Modernised Workforce”, Report to the Home Secretary by John Randall, January 2006.

[4] Police Review, 10 th March 2000, p.21

[5] Separate consultative machineries exist in Scotland and Northern Ireland

[6] The current and former Chief Constables of the Police Service of Northern Ireland came from Leicestershire Constabulary and the Metropolitan Police Service respectively; the current Chief Constable of Police Scotland held a senior command post in the Metropolitan Police before becoming Chief Constable of Strathclyde Police; and North Yorkshire Police has just appointed as Chief Constable a member of the senior command team of the Police Service of Northern Ireland.

[7] The Commissioner and Deputy Commissioner of the Metropolitan Police Service, Chief Constable, Deputy Chief Constable and Assistant Chief Constable, and the equivalent ranks in the Metropolitan Police.

[8] “Collective Bargaining for a Modernised Workforce”, Report by John Randall to the Home Secretary, January 2006.

[9] The Bill provides for Northern Ireland to be covered by the Police Remuneration Review Body. A consultation on this matter by the Northern Ireland Minister of Justice is due to conclude in July 2013; thereafter a final decision will be taken on whether Northern Ireland comes within scope of the Police Remuneration Review Body. These comments are made on the assumption that Northern Ireland will be so included.

Prepared 20th June 2013