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Earl Russell: My Lords, it is typical of the way in which matters work here that I should begin an attempt to persuade people to vote against the Government by praising the noble Lord, Lord Carter. In the late 1980s the noble Lord, Lord Carter, discovered that there existed model clauses for how to draft a Bill. The phrase by which he detected that was that people were to leave public bodies if they became disabled or otherwise incapacitated to perform their duty. The words "disabled or otherwise" were, of course, quite redundant.

Here we have a model clause. I have seen it in more Bills dealing with the public services than I care to remember. That began with the Quality Assurance Agency against universities in 1992. It is still possible to persuade any academic to vote in favour of our party by saying that we divided the House against the creation of the Quality Assurance Agency. No further argument is needed.

We have a model clause designed to deal with failure. By what the Minister will, I am sure, assure me is a coincidence, these model clauses designed to deal with failing forces, failing schools, failing hospitals, always come in at precisely the moment of financial stringency, when one has that sickening realisation that, however hard one tries with the money available, one cannot possibly succeed.

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The suspicion exists in the minds of many public servants that clauses like this are designed to pass the buck. The noble Lord, Lord Corbett, said that the measure was designed to deal with failure. I agree with him. Some of us are born failures; some of us achieve failure; and some of us have failure thrust upon us. Those who suffer this clause will believe that they belong to the third category.

7 p.m.

Earl Ferrers: My Lords, I retain a great concern about the clause for many of the reasons given. I agree with the noble Lord, Lord Corbett, that it is to be used in theory only when something goes wrong; and no one ever wants anything to go wrong. But it was Archbishop Fisher who said once that there is no unreasonable argument that cannot be proved reasonable by reason.

The Government are giving powers to the Home Secretary to intervene over policing matters which have always been the responsibility of local policing authorities. I had occasion to mention earlier the problems we had in 1994 when we introduced a police Bill. The row was over whether one appointed people to the police authority. It was not the Home Secretary taking powers. Subsection (2) of new Section 41A states that the Secretary of State may direct the chief officer of the police. Those are huge powers. Subsection (4) states that the Secretary of State may direct the chief officer of police of the force in question to do various things.

The Police Service has always run on the tripartite view of the milkmaid's stool with three prongs: the Home Secretary; the chief constable; and the local authority. But for the Home Secretary from Whitehall to direct the actions not of police authorities but of chief constables gives huge power to the centre. With regard to the police Bill in 1994 there was such a row over who should be members of the police authority that I found myself obliged to take back all eight clauses. That was merely a question of who was to sit on the authority. There was no question about whether the Home Secretary should direct people. That would have been intolerable.

I suggest to noble Lords that this is not the right thing to do. Local police authorities must be responsible for their local policing.

Lord Rooker: My Lords, perhaps noble Lords will forgive me if I repeat much of what I said in the earlier debate on Amendment No. 42. It may be convenient for some noble Lords to treat Clause 5 in isolation but, frankly, they cannot get away with that. I have made a set of proposals, including the new clause, Amendment No. 42, which alters the position. We are not in Committee. It is not the day that the Bill was published.

Having listened to some noble Lords talking about police authorities, anyone would think that all was right, that the police authorities are doing a fantastic

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job and that we are simply interfering with their day-to-day activities. No noble Lord pointed out that the clause is activated only if there is failure. It operates only under the procedures set out in the new clause, Amendment No. 42. It is a last resort. No one has talked about that last resort. The last resort is a failure and a breakdown of policing in a local area or force. No one has addressed that issue. They have all said, "We do not like this measure. It is interference".

Clause 5, as drafted, operated by the procedures under the new clause, Amendment No. 42, operates only where there is a breakdown. No noble Lord from any party asked, "What do we do if there is a breakdown?". Under the procedures in the government amendment, the chief of police and the beloved police authority will have already had one, two, three or four opportunities to put right the failure. What do noble Lords seek today? They seek to let them carry on, to have a fifth chance to fail their communities. That is the reality of removing Clause 5 and ignoring the amendments brought forward by the Government since Committee stage. Noble Lords shake their heads but that is what they seek: a fifth chance of failure, letting down local communities. That is the reality that we face, with noble Lords refusing to accept any alternative but to leave out Clause 5. Without Clause 5 the remaining provisions will go.

The measure will be activated only after the police authority's own action plan to remedy the publicly acknowledged failure. So there is a publicly acknowledged failure of policing in either an area or a function of a police force. The police authority will then have another opportunity to come forward with its own action plan before Clause 5 is activated. The chief officer will come forward to the police authority with his own extra action plan to deal with that failure before Clause 5 operates.

What do noble Lords expect? It is failure after failure, with the Home Secretary, not the police authorities, being held accountable before the House of Commons. My noble friend Lord Corbett is right. In his heart, the noble Lord, Lord Fowler, knows he is right. We never noticed a police authority carrying the can as individuals. They are not democratically elected. Someone spoke about the democratically elected. None of us is elected. None of us has to face the electorate having said, "No, we shall settle for failure". That is what it means. Doing nothing means settling for failure. We say that the measure is a last resort, a longstop to a longstop.

In those circumstances—with narrowly defined areas and following all the reports that we would require—I cannot believe that people with the experience of life that your Lordships have would say, "Let it go. Do not do anything". The noble Lord, Lord Dholakia, referred to the noble Lord, Lord Phillips. I do not want to misquote the noble Lord, Lord Phillips, in any shape or form. I was struck by what the noble Lord said in debate. He was open and honest enough to say in Committee, "Yes, I accept the failure and then it is up to the electorate to do something about it". When Members of another place have the Home

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Secretary at the Dispatch Box it is not good enough to say, "We cannot wait. We want action in our area now. We have a failure". Nothing would be done behind closed doors. Everyone concerned would know that there was a failure of policing. I do not accept the noble Lord's argument.

I am told that the Home Secretary can order what local commanders can do only after the failure of the local action plans put forward by the police authority and the chief constable without the Home Secretary interfering. So what do noble Lords want? Is it the status quo? That cannot be acceptable. I challenge any noble Lord to say, "It's all working perfectly". It simply cannot be argued.

The noble Lord, Lord Elton, said that I camouflaged Clause 5. He did so in the nicest way; I do not take it as personal criticism. Clause 5 on its own in the Bill is not acceptable to the Government, as we discussed in Committee. That is why we have come forward with a package, including Amendment No. 42, setting out how Clause 5 will operate. It would not operate other than under the rules set out in the new clause we want to insert.

We are not camouflaging Clause 5; we are giving more direction to the tank commander—to use the earlier analogy—who cannot work the tank without operating under the rules set out in the amendment. It is no good noble Lords going through the Division Lobby saying "We didn't like Clause 5". The debate is not about Clause 5. It is about Clause 5 and the rest of the package brought forward by the Government to the House at this stage of the Bill, following four days in Committee. Clause 5 is not on offer on its own, and noble Lords know that. It is on offer with a package of amendments, including Amendment No. 42, which I am moving today on behalf of the Government.

I cannot answer the detailed questions such as that about the Downing Street crime summit. Perhaps I may put it this way. It did not get going until the Prime Minister spent his time on the matter. Someone had to do something. It was not done under statute; under the force of a piece of legislation such as this; nor under the force of a Minister saying "Go forth and do this, that and the other". With chief constables and others called into Downing Street, that would not be strictly necessary.

Is that what we are to be forced to do each time there are perceived problems in areas of policing: to have a Downing Street summit behind closed doors without any accountability to this House in the way that we have set out in the clauses and the amendments? Surely it is better to have a more open and transparent process and not to have to leave the matter to Prime Ministerial summits. That is not sensible good governance.

I feel for the noble Earl, Lord Ferrers, for having to take back eight clauses in 1994. I shall not take back any clauses. The measure will come back from the other place, so this will not be the end of the debate. The other place will know that this debate was not about Clause 5. I refuse to accept that. It is about Clause 5 and the rest of the package specifying how

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Clause 5 will operate. It is about a last resort; a long stop to the long stop. It is about the Government—I hope with Parliament's support—trying to achieve something where there is openly acknowledged failure of policing in our communities. I beg the House not to throw it out.

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