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Police and Justice Bill

3.35 pm

Lord Bassam of Brighton: My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved accordingly, and, on Question, Motion agreed to.

House in Committee accordingly.

[The LORD SPEAKER in the Chair.]

Clause 28 agreed to.

Clause 29 [Power to confer additional functions on Chief Inspector]:

Baroness Henig moved Amendment No. 140:

The noble Baroness said: Amendment No. 40 is a probing amendment. Clause 29 provides Ministers with wide-ranging powers to confer additional functions of inspection on the chief inspector by order. I will be interested to hear from my noble friend what additional functions it is envisaged might be conferred in that way. Of more concern are the

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provisions of Clause 29(3) which would enable Ministers to amend any piece of primary or subordinate legislation as part of such an order. That seems to be a very wide-ranging prospect indeed. It would be helpful to know in what kind of instances the power to amend legislation by order might be used.

Amendments Nos. 141, 142 and 145 simply seek to ensure that the bodies subject to inspection are consulted by Ministers. That would apply if an order were to be made or to the directions given to the chief inspector by Ministers. The key point about inspection is that it should drive improvements in performance; it should not be about catching people out or creating unnecessary burdens. It is important that those subject to inspection—police forces, authorities and others—have a chance to work with Ministers and others to ensure that we have an inspection regime that is, to coin a common phrase, fit for purpose. In that constructive spirit, I beg to move.

Baroness Harris of Richmond: I support the amendments tabled by the noble Baroness, Lady Henig. As she has so clearly outlined, the amendments all relate to including in the prescribed list of consultees the bodies being inspected. They cover consultations about additional functions to be conferred on the chief inspector, ministerial directions to the chief inspector to conduct particular inspections and the formulation by the chief inspector of inspecting programmes and frameworks respectively.

The preambles to the subsections amended by Amendments Nos. 141 and 142 contain provisions that the Secretary of State needs to consult only those organisations that appear to be appropriate, but the last amendment, relating to consultation by the chief inspector on inspection programmes and frameworks, contains no such condition and would be mandatory. It seems to these Benches entirely reasonable that the organisations that are subject to inspection should have an opportunity to express a view on those key provisions.

Baroness Anelay of St Johns: I support the amendments tabled by the noble Baronesses, Lady Henig and Lady Harris of Richmond. I share their concern about the order-making power in Clause 29. I referred to it very briefly last week when we debated the large group of amendments in the name ofthe noble Lord, Lord Ramsbotham. It gives the Government a wide power under which the inspectorate could be directed in ways that would be difficult for anyone to foresee at this stage.

When, on 28 March at col. 244, my honourable friend Nick Herbert raised objections in another place to this provision, the Minister, Fiona Mactaggart, argued, at col. 247, that at the moment the Government have the power to confer additional functions on many of the criminal justice inspectors by fiat. She said that one reason that the Government are seeking to include the provisions in the Bill is to obtain parliamentary scrutiny by consideration of

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any order that comes before either House. I agree with my honourable friend that we should be concerned about such a power being relegated to an order-making power, especially one that currently uses the negative procedure.

My brevity in speaking today should not be taken as any lack of support. I strongly support the noble Baronesses.

Lord Bassam of Brighton: I fully understand that concern has previously been expressed about the apparent breadth of the consequential amending power in Clause 29(3)—in particular that it might be used to alter the nature of the chief inspector’s inspection functions. I want to make clear that that has never been our intention. The clause relates only to any additional non-inspection functions that Ministers might wish to confer on the chief inspector in future. In another place, we amended the wording of subsection (1) to make that clear.

In the context of such hypothetical non-inspection functions, we consider it sensible to allow maximum flexibility to accommodate adoption by the inspectorate of new functions in the future. Such functions might relate to activities referred to in other legislation. For example, Schedule 1l(11) amends the Police Act 1996 to enable the new inspectorate to continue to contribute to the membership of police appeals tribunals. Consequential amendments to the present provision might also be needed—for example, to make further arrangements under Schedule 9 in respect of staffing or expenditure consequent on additional functions.

The power to make such consequential amendments, in so far as it is used to amend primary legislation, will be subject to the affirmative procedure, as stated in Clause 47(5)(b), so parliamentary scrutiny of its use in that respect is guaranteed. As the power relates only to non-inspection functions, we do not consider it appropriate to add a consultation requirement relating to bodies which are to be inspected.

Amendment No. 142 seeks to add the body or bodies which are to be inspected by the chief inspector to the list of bodies that must be consulted before Ministers direct the chief inspector to carry out an inspection. Such a direction may be in respect of any specific part or aspect of the courts, criminal justice or immigration enforcement systems, or any specific matter falling within the scope of the chief inspector’s duties.

That power is intended for use in particular in situations where significant under-performance by a part of one of the inspected systems is causing ministerial and public disquiet or concern, or to commission an investigation by the chief inspector of a serious incident relating to the areas of work inspected—such as that recently carried out by the Chief Inspector of Probation in the case of Rice. We do not consider that it would be appropriate for Ministers to be required formally to consult the body which was to be subject to such an inspection or investigation. In practice, Ministers are likely to take the advice of senior officials, including the chief of the body concerned, when deciding what action to

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take. To go further than that would risk damaging the flexibility and independence which are crucial in such interventions.

Amendment No. 145 adds the body or bodies which are to be inspected by the chief inspector to the list of bodies that must be consulted by the chief inspector on his proposed inspection programme and inspection framework.

We indeed intend that the chief inspector shall consult the inspected bodies on the inspection programme. Accordingly—I am sure that this will bring some cheer—I am happy to accept Amendment No. 145 in principle. We would envisage a provision whereby the chief inspector was under a duty to consult on the inspection programme with the bodies that he proposes to include in that programme and we will bring forward such an amendment at Report.

I trust that, having heard that, the noble Baroness will feel able to withdraw her amendment and that Members of the Committee will work with us to achieve what we jointly want in the spirit of Amendment No. 145.

3.45 pm

Lord Dholakia: I have a particular interest in this matter because, when HMI used to carry out inspections, it was very keen on consulting bodies such as the Commission for Racial Equality on the impact on racial equality. Can the Minister confirm that the provision is in no way intended to inhibit the consultation of bodies such as the Commission for Racial Equality, so that the racial element in inspection is fully aired and examined?

Lord Bassam of Brighton: I cannot immediately envisage circumstances that would disturb the arrangement which the noble Lord describes, so I am happy to give that assurance.

Baroness Henig: I thank my noble friend for his explanation and for the move that he has made on Amendment No. 145. There is not entirely a meeting of minds on the other amendments. None the less, at this point we are very happy with what has been said. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 141 not moved.]

Clause 29 agreed to.

[Amendment No. 142 not moved.]

Clause 30 agreed to.

Clauses 31 and 32 agreed to.

[Amendment No. 142A not moved.]

Clause 33 agreed to.

Schedule 9 [Her Majesty's Chief Inspector for Justice, Community Safety and Custody]:

Baroness Henig moved Amendment No. 143:

The noble Baroness said: I very much hope that the Government will accept Amendment No. 143, although I hope I am not pushing my luck too far. The amendment relates to the inspection of police authorities, because the Bill provides for police authorities to be subject to inspection by the new inspectorate. This is something of a departure, because currently police authorities can be inspected only in respect of their best-value duties. I strongly welcome the principle of this, as I know do my colleagues in the Association of Police Authorities, because it is right that police authorities should, like other public bodies, be subject to open and transparent inspection.

Clearly, the new single inspectorate will be a different creature from the existing bodies, but equally, as now, I am sure the inspectors willinclude among their ranks existing practitioners, ex-practitioners and professionals. Her Majesty’s Inspectorate of Constabulary is very much made of former and serving police officers. Although there has been some recent diversification, involving a number of lay inspectors, it still mostly comprises ex-police officers. Although I have the greatest respect for Her Majesty’s Inspectorate of Constabulary—indeed, I always found it to be an invaluable source of advice and expertise when I was a public authority chairman—I am sure the Committee will agree that it would be inappropriate for the public authority, whose job it is to oversee and scrutinise police forces, to be inspected by a body made up mostly of persons who were, or are, members of those forces.

I had the interesting experience last year of being involved in a prototype inspection of a public authority. I know that HMIC colleagues, who had been rather dubious about including public-authority input, quickly realised during that exercise that such involvement was essential. My amendment therefore aims simply to ensure that, in any inspection of a public authority, the inspection team should include individuals with knowledge, expertise and experience of public authority issues. This is a sensible and essential step, and I commend the amendment to the Committee. I beg to move.

Baroness Harris of Richmond: I warmly support the amendment proposed by the noble Baroness, Lady Henig. As she said, it is absolutely right that we should have open and transparent inspection for police authorities, which we have long wanted, with the means to the end being how we achieve it. Many police authority members have gained expert knowledge over the years since the Association of Police Authorities was formed. I would warmly welcome long-serving police authority members being specially trained to undertake peer review. It is, after all, in their and everyone’s interest that police authorities perform at optimum level.

Baroness Anelay of St Johns: I add my voice in support of the amendment. The noble Baroness, Lady Henig, has made a very practical proposal. These people have very broad experience of police

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matters through their service on police authorities. It would bring an extra dimension to inspections, without in any way undermining their independence and integrity. I hope that the Government are prepared to look kindly on this proposal.

Lord Dholakia: I, too, support the amendment. The noble Baroness, Lady Henig, and my noble friend Lady Harris of Richmond, with their vast police authority experience, can give an insight into how helpful this proposal would be to inspectors when local matters are investigated. At one time, I was a member of a police authority in Sussex, the county from which the Minister comes. In any inspections the inspectors always made sure that local members of the police authority were present and they were able to assist him on issues which would be of paramount importance to that party. I very much hope that the Minister will take on board this very important point.

Lord Bassam of Brighton: I shall prefigure my comments by saying that there may be some warmth in them, but, ultimately, I am afraid that there has to be rejection. However, I hope that that will not entirely colour Committee Members’ expectations of what I shall say. The paragraph to which this amendment has been tabled already imposes a general duty on the chief inspector to secure that there is available to him sufficient expertise and experience—which is the relevant part—relating to the systems and organisations falling within the scope of his duties.

In imposing that duty, the Government fully recognise that inspection not only of police authorities but also of police operations, prisons, courts and offender management all involve specialist knowledge and an in-depth understanding of quite distinct cultures and working environments. In addition, they may require the importation of professional judgments and expertise from areas outside the criminal justice system—for example, healthcare in prisons or work with young offenders. That may be achieved by maintaining and developing expertise in the inspectorate’s staff through the use of professional advisers and perhaps by working jointly with other inspectorates, such as the healthcare inspectorate, wherever necessary or required.

Paragraphs 8, 11 and 12 of Schedule 9 strengthen the abilities and requirements for such joint working. In particular, paragraph 12(2) provides that inspections of police authorities must be carried out jointly with the Audit Commission. It would be at best an unnecessary encumbrance to make it a statutory requirement to involve in an inspection individuals representing the interests of particular inspected bodies. At worst, to require such persons to be part of the inspection team and regime could undermine the independence of the inspection process. I do not think that anyone wants to interfere with that independence; after all, it has been a much-hallowed value during our debates about the future of the inspectorate.

We expect that the managers of inspected bodies will continue to be engaged with closely by the

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inspectorate about emerging inspection findingsand be able to comment on inspection reports before they are published. But, ultimately, it must be for the chief inspector to decide the nature and degree of involvement of those inspected in the inspection.

We understand entirely the sentiments behind the amendment and recognise the need for expert and professional advice to be available to the inspectorate, but we do not want to fetter or interfere with the important independence that it must have in order to retain public credibility and for inspectorate reports to enjoy the respect they currently have. There is probably scope for further discussion outside the parameters of the debate on this amendment, but ultimately we have to resist it.

Lord Dholakia: The Minister talked about warmth at the start of his response to this amendment. If the inspectorate is independent, what is wrong with the inspector determining who would be the most useful people to assist it? Why should not members of a police authority with particular expertise assist in the process? What is the problem here?

Lord Bassam of Brighton: I agree with the noble Lord. There is nothing wrong with the inspectorate taking advice from a wide range of professionals and looking at other views, but to prescribe in the Bill that the inspector:

is unnecessarily inflexible and could, in certain circumstances, interfere with the independence of the inspectorate. As I explained, we do not rule out the involvement of those with knowledge and expertise of the work of police authorities—

Baroness Harris of Richmond: I am most grateful to the Minister for giving way. Where are the special people who know about police authorities to come from within the police inspectorate? The inspectorate will not know about police authorities; that is the whole point. Police authorities know best how to inspect themselves, and as I said earlier in supporting the amendment of the noble Baroness, Lady Henig, that can be achieved with a certain amount of training.

Lord Bassam of Brighton: At the outset I made the point that the inspectorate may require the importation of professional judgments from areas outside the criminal justice system. Police authorities are outside the criminal justice system as they are formed from a mix of elected councillors and appointees. I do not rule out those with knowledge providing advice to the inspectorate, should it think it appropriate during an inspection.

Baroness Henig: My noble friend will understand when I say that I am a little disappointed by some of what he has said. In inspections of local government there is an element of peer review. Indeed, when the

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Audit Commission undertakes inspections, the peer review is invaluable. I do not understand why it is not the same here.

Lord Bassam of Brighton: I do not rule out the involvement of an element of peer review. I sought to make clear that we do not feel it is appropriate to prescribe it in the Bill.

Baroness Henig: I thank my noble friend for that elucidation. No doubt we will want to discuss the issue in a more informal way because there may be some misapprehensions about what can be achieved through guidance or in a way other than on the face of the Bill. I understand that. I am not sure whether I go along with him on the undermining of independence. What he says is clear, but having taken part in an inspection last year I do not think that in any sense I undermined anyone’s independence. None the less, I think I understand the message here; at this stage I shall withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 144 and 145 not moved.]

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