Clause 30 - Suspension of senior officers
Police Reform Bill [Lords]
5:15 pm
Mr Norman Baker (Lewes, Liberal Democrat)
I beg to move amendment No. 250, in page 29, line 24, leave out 'proposal' and insert
'degree of alleged inefficiency or ineffectiveness'.
Mr Win Griffiths (Bridgend, Labour)
With this it will be convenient to consider the following amendments: No. 251, in page 29, line 30, after 'proposal', insert
'and the degree of alleged inefficiency or ineffectiveness'.
No. 256, in clause 31, page 31, line 8, after 'necessary', insert
'in the light of the degree of alleged inefficiency or ineffectiveness'.
Mr Norman Baker (Lewes, Liberal Democrat)
The amendments would ensure that any suspension is based on the
''degree of alleged inefficiency or ineffectiveness''
and no other reason. The Minister will recognise that the power to suspend is serious and will lead in many cases to the termination of the employment of a chief constable or the Commissioner of Police of the Metropolis, depending on the case. It is questionable whether a power of suspension is needed to deal with what are essentially management or personnel matters. They are distinct from disciplinary or conduct issues, for which there is already a power to suspend if, for example, a chief constable is investigated for alleged disciplinary offences or a sufficiently serious crime.
The issue is not whether suspension is appropriate, but whether the grounds for suspension should be extended—as the Bill does—on the grounds of alleged inefficiency or ineffectiveness. I have some concerns about that, as the power could be somewhat draconian. It also questions the criteria that are used to decide whether a chief constable's actions constitute ineffectiveness. Would it be ineffective if, for example, a chief constable did not employ community support officers when neighbouring forces were doing so and the Home Office's police standards unit had decided that it was appropriate? Notwithstanding the Minister's previous promise that chief constables would not be compelled to do so, could such a decision be interpreted as ineffectiveness? If so, it would merit suspension.
The extension of the power is not a solitary measure: it must be seen in the context of the other powers that the Bill makes available to the Home Secretary—powers to set national plans, to direct new regulations, to prescribe the way in which individual officers and forces work and to intervene in the running of local police units at basic command level. The Minister will be aware of yesterday's written answer to me, which demonstrates that considerable micro-management of basic command units is already in place in respect of street crime. The wider context of the totality of powers must be taken into account.
I am particularly worried about the phrase ''maintenance of public confidence'' in lines 30 and 31. What is public confidence? Its lost will result in the suspension of a senior officer. Let us suppose that the Home Secretary loses confidence in a senior officer and makes his view public in a national newspaper. He might overtly criticise a chief constable based somewhere in the country. If the Home Secretary took that step—in my view, it would be erroneous and unprofessional—it would have the effect of reducing and eroding public confidence in the particular officer. In other words, the public at large would say that the Home Secretary made the criticism and there cannot be smoke without fire. Hence the Home Secretary could himself cause the loss of public confidence in a senior officer and then say, ''Lo and behold, confidence has been lost; this merits the suspension of the officer''. It is a circular process, made possible by the clause.
A police authority or the Secretary of State could also interpret loss of public confidence as the failure of
a chief constable to conduct his force operationally in an appropriate way. To return to an earlier example, if a chief officer sincerely believes that it is appropriate to undertake an experiment to turn a blind eye to personal users—not dealers—of cannabis, but other chief officers take a different view, it could be a matter on which the Home Secretary decides that he has lost confidence in the chief constable of that particular patch because he is not cracking down on the law. The Home Secretary might say that soft drugs are serious because they lead on to hard drugs—MPs have often argued that—and because the chief constable takes a different view operationally and wants to focus more on burglary, the Home Secretary might announce his loss of confidence in him. In other words, the Home Secretary could pass judgment on a chief constable's operational decision, leading to suspension.
The Minister might say that that is not his or his ministerial colleagues' intention in proposing the clause at all. I am happy to concede that: the Minister might well resile from it, but we have to assess the framing of legislation and the possibilities that flow from that. We are not in the business of second guessing or interpreting what individual Ministers might do today, let alone in 10 or 20 years' time. I contend that the Bill as drafted will allow the course of action that I have elucidated to be followed.
The test of public confidence is essentially subjective, and that worries me. If a chief constable or senior officer is guilty of a criminal act, presumably they can be tried and dealt with accordingly. If they are accused of inefficiency and ineffectiveness, it will at least involve Her Majesty's Inspectorate of Constabulary in an examination of how a force is run. Will the Minister's police standards unit comment on that?
The test of public confidence is much more subjective and therefore arbitrary, and it should not be used as the basis of a suspension. There is also the issue of what happens when a chief officer is suspended. Let us say that the Home Secretary or the police authority decides that there is a lack of public confidence, or even that there is a prima facie case that a chief constable is being inefficient, and he is then suspended. Because the test of public confidence is written into the clause, the very fact that the chief officer has been suspended will automatically lead to an erosion of public confidence in him.
It may well be that an investigation clears the chief officer, and he may be found to have acted entirely properly. However, public confidence will have been eroded by the suspension and so the other test, which is in clause 30, will kick in. Perhaps the Minister will say that when an officer is wrongly suspended and subsequently reinstated, no further action will be taken, and that the Home Secretary and the police authority will defend that chief constable, notwithstanding the loss of public confidence in him. The matter is a minefield, or a hornet's nest, or some other metaphor that I can come up with if you wish me to, Mr. Griffiths.
The clause is not well worded. That is why the amendments that my colleague and I tabled seek to link any suspension to a
''degree of alleged inefficiency or ineffectiveness''.
Those are words that the Minister and the Bill have used, and they are acceptable to the officials who drafted the legislation. It is a somewhat more—although not entirely—objective test than that of public confidence. If the Minister is not prepared to tie suspension to that, he is effectively saying that although there is no alleged inefficiency or ineffectiveness, the Secretary of State will be right to suspend a chief constable if public confidence has been eroded. That is an intolerable argument to pursue, and I hope that the Minister considers the amendments seriously.
Mr Nick Hawkins (Surrey Heath, Conservative)
Conservative Members agree with the hon. Member for Lewes on the inelegance of the drafting. He is on to a rather good point; it would be helpful to have additional clarification. I do not propose to repeat what he said, but we will listen with great interest to whether the Minister has any plans to deal with the issue, if not in the way that the hon. Member for Lewes suggests, then through some Government amendments. The hon. Gentleman is right that if the matter is left as it is, there is great danger that there will be significant problems along the lines of those that he set out.
Mr John Denham (Minister of State (Police, Courts and Drugs), Home Office; Southampton, Itchen, Labour)
I was not entirely clear whether the hon. Member for Lewes understood the way in which the clause works. I mean no disrespect, but I think that on occasion he did not. Towards the end of his remarks, he said that the Secretary of State would be able to suspend a chief officer even if there were no allegation of inefficiency or ineffectiveness. That is not in the Bill.
The provisions quite clearly have a sequential effect, the first stage of which is that the police authority or the Secretary of State considers whether to exercise the powers requiring a chief officer to step down on the basis of inefficiency and ineffectiveness. In other words, before the powers in the clause to suspend can kick in, and before the future of the chief officer's career is brought into doubt, there has to be sufficient doubt about the effectiveness and efficiency with which the force is being managed. Certainly, the Secretary of State or the police authority would say whether they were seriously considering whether to exercise those powers. Given that a process is under way, how does one deal with the circumstances in which it is necessary to take additional action for the benefit of the force? The test of public confidence is clearly right. Inefficiency and ineffectiveness will be resolved through the processes that we discussed earlier, but the clause is about whether some earlier action to maintain public confidence is necessary.
It is right that a different test from that for efficiency and effectiveness will be considered on the basis of existing legislation and other clauses under the Bill. It is a high threshold. The Secretary of State or the police authority would have to decide that the maintenance of public confidence makes such a decision necessary. In effect, suspension must be
essential to maintain confidence. Such at test is not light. It removes the ability to use such powers willy-nilly. As with all such measures, the provisions are subject to administrative laws. I am describing circumstances in which either the police authority or the Secretary of State—or both—have thought it necessary to use the powers to require an officer to step down, retire or resign. The clause offers a way of dealing with that interim period.
Mr Patrick Mercer (Newark, Conservative)
I endorse what the hon. Member for Lewes said. I had the opportunity at the weekend to speak to Stephen Green, the chief constable of Nottinghamshire. He commented on the powers and said that he had the gravest concern about the words ''maintenance of public confidence''. That officer has 30 years' experience and one of the sharpest minds in the constabulary. He is doing a wonderful job in Nottinghamshire. He said that that phrase was ''inexact, impossible to measure'' and may lead to the removal of an officer such as himself because of political convenience.
Mr John Denham (Minister of State (Police, Courts and Drugs), Home Office; Southampton, Itchen, Labour)
I, too, have high regard for the chief constable of Nottinghamshire. I have spent time with him, examining various policing operations in and around the city of Nottingham. I can only restate that many people, when publicly discussing the Bill, have looked at the power of suspension as though it was completely unrelated to other measures in the Bill and as though the Secretary of State or the police authority could say, ''Something has happened. We do not like it very much. We will suspend you and then we shall think about what to do next.''
The clause deals with the police authority or the Secretary of State
''proposing to consider whether to exercise its power under subsection (2) to call upon the chief constable to retire or to resign''.
That point must be reached before the suspension provision comes into play, and that has been missed in the public discussion. An arbitrary and subjective power to suspend would not be attractive to the Committee, nor is it what we are proposing. While the power to retire or resign should rest on the tests of inefficiency and effectiveness as it has done for a long time—although not qualified by legislation, none the less such tests must be met—the question of suspension should be properly judged in circumstances that take into account the maintenance of public confidence. The clause has been worded deliberately to set a high threshold. It does not say, for example, that the chief officer could be suspended because that may be beneficial for public confidence or because people would feel a little better about it.
Mr. Boris Johnson (Henley) rose—
Lady Hermon (North Down) rose—
Mr John Denham (Minister of State (Police, Courts and Drugs), Home Office; Southampton, Itchen, Labour)
I give way to the hon. Lady.
Lady Lady Hermon (North Down, UUP)
The unhappiness about the present drafting is based on the word ''satisfied''. The Minister knows that it is extremely difficult to challenge that in judicial review, unless it is wholly unreasonable. Therefore, it would be much better if the clause were reworded so that it stated, for example, that,
''there were reasonable grounds for believing that the maintenance of public confidence in the Metropolitan police required suspension.''
The concept of satisfaction is very hard to challenge in judicial review.
Mr John Denham (Minister of State (Police, Courts and Drugs), Home Office; Southampton, Itchen, Labour)
The hon. Lady raises an interesting point but, as she understands, I cannot give a commitment with regard to it at present—despite the fact that the hon. Member for Lewes is urging me to do so—as I would wish to take advice on the matter. At first sight, I am unsure that, in practice, at judicial review a major difference would be produced by using the wording that the hon. Lady has suggested rather than the current wording. I will consider her proposal. However, looked at as a whole, the test has a high threshold, and one that the Secretary of State would need to be able to sustain. I now give way to the hon. Member for Henley (Mr. Johnson).
Mr John Denham (Minister of State (Police, Courts and Drugs), Home Office; Southampton, Itchen, Labour)
I hope that I have responded to the points that have been raised. I will consider the hon. Lady's suggestion, but I do not wish to raise expectations that it might be successful on Report, because it is just a point that she has put to me in Committee.
Mr Norman Baker (Lewes, Liberal Democrat)
As always, I am grateful to the Minister for responding in detail. However, I have no reasonable grounds for thinking that I should be satisfied with his response.
The hon. Member for North Down (Lady Hermon) made a sensible suggestion, and I hope that the Minister will look at it. However, he has not really addressed the core issue, which is that the maintenance of public confidence is an arbitrary and subjective test and that, therefore it is, by definition, difficult to challenge.
The Minister also failed to address the point that, if a chief officer is suspended because somebody thinks that that is necessary for the maintenance of public confidence, that will have a prejudicial impact on the subsequent consideration of whether that officer should remain in post. When we debated an earlier amendment, the Minister ruled out involving independent parties in the consideration of an inquiry that is conducted under the auspices of the police authority, and now we face the possibility of the suspension of a chief officer because it is subjectively considered that public confidence has been eroded.
Under those circumstances, what chance would that officer have of an unbiased hearing, and what would be the relationship between those who thought that a suspension was appropriate, and those who subsequently discussed and decided whether that officer should retire or resign? The judging authorities are the police authority and the Home Secretary, so it seems to me that that is prejudicial, and it certainly creates a mood in the public mind, which it is then difficult to turn back.
The Minister has also failed to address the point that in the event that the somewhat drastic action was taken to suspend a chief officer for failing to maintain
public confidence—and if that is the reason, it should be stated—and that officer was miraculously cleared and it was decided to reinstate him, he would be placed in an almost intolerable situation, because he would be expected to carry on with his job knowing that the Home Secretary or the police authority had previously felt that public confidence in him was lacking.
Ms Vera Baird (Redcar, Labour)
I am sorry to interrupt, but to be frank, the hon. Gentleman has failed to get the point of the Minister's reply—although it may be that I have misunderstood the matter.
The decision to suspend due to a lack of public confidence would follow the police authority's decision to exercise its power to consider whether to dismiss someone. Therefore, it must have an initial apprehension that an officer is inefficient or ineffective before it considers whether the public has lost its confidence in him. In the light of a proposal to consider whether to ask him to resign, it might be in everyone's interest for him simply to stop performing his duties while the issues were considered, coldly and calmly. That is the key point. It might be in his interest to be taken out of duty while the issues were considered coldly and calmly. There would then be no difficulty about putting him back in. If the hon. Gentleman's test for suspending an officer that he were inefficient and ineffective, it would be difficult for him to go back in afterwards.
Mr Norman Baker (Lewes, Liberal Democrat)
I listened carefully to the hon. and learned Lady for whom have a great deal of respect in both this Committee and the Joint Committee on Human Rights. I also had respect for her predecessor, although that is probably not a popular thing to say in certain quarters of the Labour party these days.
With respect to the hon. and learned Lady, I did not misunderstand the Minister's point. He made his case quite well, but I hope that he recognises that my response is valid and consequential, notwithstanding the sequential test that he set out. If an officer is suspended for reasons of maintenance of public confidence, he is suspended by people who will be judge or jury on whether he should lose his job. That prejudices such consideration. If the officer is reinstated, he will have to return to office in the full glare of publicity because he has been suspended, which has many implications.
I am worried about the issue. The clause is not properly worded, and there are dangers. Several Opposition Members have made suggestions for improvement or raised concerns. I hope that the Minister will reflect on those. If he does not accept the amendment today, I hope that he recognises that the amendment and my comments have been well intentioned and reflect a genuine worry about the clause. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 30 ordered to stand part of the Bill.