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Lord Borrie: The noble and learned Lord is, of course, correct in his interpretation of Clause 4. However, as I ventured to say earlier, the ability of the Secretary of State to make directions is solely dependent on there having been a report as to ineffectiveness or inefficiency. The noble Lord, Lord Elton, was not correct when he challenged me for saying that a short while ago.
The noble and learned Lord, Lord Mayhew, said that not only should the power to make directions be limited and fettered by there having to be an inspector's report on inefficiency or ineffectiveness in the whole or in part of the police force, but that it should be further fettered as to the precise nature of the directions. It seems to me that that goes a stage too far. It would be inappropriate that, beyond the powers of the inspectors to determine the facts as to inefficiency or ineffectiveness, they should also have an ability to veto the precise measures that, in accordance with broad government policy and Home Office policy, should follow on that support. I repeat, that seems to be a stage too far and thus the amendment is not one that we ought to accept.
Lord Waddington: The Minister gave me a most helpful assurance a short time ago. I commented on the extremely wide power contained in Clause 4 and received from him an assurance that it was certainly not the intention of the Secretary of State to use that power to require a police authority to tell a chief officer
that he had to recruit a given number of community support officers or to have as community support officers a given proportion of his force. That of course raises an important point which was mentioned earlier in the debate.We should legislate not only for the present Home Secretary; we must pass good legislation which would not allow any future Home Secretary to have wider powers than are proper in all the circumstances. Does the Minister agree that, although his assurance is most encouraging and I am grateful for it, I must be right to say that the wording of the last few lines of Clause 4 is so wide that in fact it would allow a future Secretary of State to require a police authority to tell a chief officer of police that he had to recruit community support officers? I should like the Minister to agree with me that, given the wording, that must be the case. If it be so, surely we should introduce an amendment, not necessarily incorporating the precise wording used in Amendment No. 28, which would prevent any future Home Secretary from using the power to do that which I certainly think would be quite improper.
Lord Mayhew of Twysden: Before my noble friend sits down, does he not agree that the point made by the noble Lord, Lord Borrie, is not entirely valid? That is because the wording used in Amendment 28 states,
- "in the opinion of the person making the report, are necessary",
Lord Waddington: My noble and learned friend asked me to comment before I resumed my seat, but I would not dream of contradicting him.
Lord Bassam of Brighton: I have found this to be an illuminating and helpful discussion. I am sure that when we come to study Hansard, we shall find it useful in directing us around this important part of the legislation.
The analysis of my noble friend Lord Borrie most closely reflects the Government's position. The clause seeks to be helpful by trying to retain a measure of flexibility. If we were to accept the amendment as it is, we would take out that flexibility. Perhaps a restriction of that flexibility is what the noble and learned Lord, Lord Mayhew of Twysden, wants to achieve. That is fine and that is how we understand the thrust of the amendment.
One or two other points need to be put on the record. The Secretary of State is not obliged to issue directions to a police authority where an HMIC report finds problems. He may use his judgment if he disagrees with HMIC for some reason, or if the problem that the HMIC report has quite properly identified can be fixed by less formal measures.
The Home Secretary is the person who will be held accountable by Parliament and the public for the performance of the police service. It is surely right that
he should be able to exercise some judgment as an accountable person. As the elected representative appointed as the Minister responsible for the police service, it would be unusual if he was bound always to take action simply on the basis of HMIC findings.If the flexibility required to put right a particular problem is not there, it will severely hamper any future Home Secretary's discretion—it will be fettered beyond peradventure—if he cannot use other means, other sources of information and other approaches to put right something identified as being less than effective.
Our argument is that if we are restricted only to the recommendations made by HMIC, we may well be missing a trick. It may be in extremis that we need to go beyond the HMIC recommendations, but there will be useful advice available. No doubt mature reflection will have been given to a problem by other organisations. ACPO is a reputable source of advice on all matters to do with the police service; surely it is important that we should take time to reflect on the views of the Association of Police Authorities—the Home Secretary may well want to do that—and the Audit Commission is a highly reputable body. Many Members of the Committee will have had contact with the Audit Commission and local government. The noble Lord, Lord Dixon-Smith, has had hands-on experience and knows very well the quality and weight of their advice. It is surely proper that the Home Secretary may want to reflect on what such organisations may say about an evident failure which has been properly identified in an HMIC report.
The Home Secretary may wish to take advice from the standards unit and other bodies in the police field. He may wish to take soundings from the Police Federation and the Police Superintendents' Association and weigh very carefully what they have to say before he gives careful consideration to HMIC recommendations and decides to issue directions. We need that kind of flexibility. If we do not have it, we will be ruling out other valuable sources of advice and reflection before a view is finally formed.
Before any of this can come into full effect, protocols will have to be hammered out and agreed with ACPO and the APA. There will be an understandable and transparent process.
I understand the strength of the amendment and some of the suspicion—there is always some suspicion of the Home Office, which is given full voice in your Lordships' House from time to time—but we are trying to improve the quality of the service and to make sure that it is effective. Where there have been failures and those failures have been properly identified, we want the Secretary of State to have some flexibility before he issues directions based simply on an HMIC report.
I hope that your Lordships' will reflect on those points before coming to a final view on this issue—perhaps not this evening but at some later stage. They are important considerations and I hope that the noble Lord will feel able to withdraw the amendment.
Lord Phillips of Sudbury: Before the Minister sits down, perhaps I may ask a question which I hope will help the Committee. The debate has got a little confused in that the existing Section 40 of the 1996 Act overlaps with 95 per cent of the clause in the Bill. I do not expect an instant reply. In winding up this part of the debate, the Minister spoke about the Home Secretary needing flexibility and needing the right to look at other sources of information, such as the Audit Commission and so on. But surely all of that prevails and is the case now under Section 40. If it is not, we have a problem.
9.45 p.m.
Lord Bassam of Brighton: To try to add clarification, I think that that is probably the case where we are looking at a whole force inspection. But it is perhaps not the case where we are looking at a part—we may be looking at a BCU or at a particular function in the policing service in a particular police area. That is the important point to reflect on. I shall not quibble about the percentage.
Lord Dixon-Smith: To have flexibility, or not to have flexibility? The problem is that the noble Lord, Lord Bassam, appears to have missed a word in the drafting of the Bill. If he looks at line 36 on page 3 he will see that the Secretary of State "may" direct the police authority to take such measures. He does not have to; he "may" do so. That introduces the discretion before we start. Presumably—
Lord Bassam of Brighton: Will the noble Lord give way? At the outset I underlined the use of the word "may". It is crucial. It is an important consideration. The Secretary of State will not have to; he "may". That is the core of the argument.
Lord Dixon-Smith: If that is the core of the argument, it gives the Secretary of State the power to consult whomsoever he pleases before exercising the power that he already has. The amendment does not restrict the Secretary of State unreasonably. The Secretary of State is already engaged in an optional process. My suspicion is that in 99 cases out of 100—probably in 101 cases out of 100—when a situation arises where the Secretary of State feels that some action is necessary he will use the existing machinery and will not need to use the powers in this Bill.
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