New Clause 2

Part of Police Reform and Social Responsibility Bill – in a Public Bill Committee at 1:00 pm on 17 February 2011.

Alert me about debates like this

Photo of Nick Herbert Nick Herbert Minister of State (Ministry of Justice and Home Office) , The Minister for Policing and Criminal Justice 1:00, 17 February 2011

Good afternoon, Mr Chope. I accept that that issue is important, and I understand why the hon. Gentleman has raised it.

First, on the hon. Gentleman’s point about the number of criminal justice Bills, it is worth noting that the last Government presided over 50 such Bills, which was equivalent to creating a new crime every day between 1997 and 2010. There is, of course, a difference in approach, because the Protection of Freedoms Bill that my right hon. Friend the Home Secretary will be piloting through this House is seeking to do the opposite; to look at where we can deal with unnecessary legislation and burdens and protect liberties. It is a fundamentally different approach. This police and crime Bill does not create new criminal offences; it seeks to secure greater accountability of policing. We are not introducing criminal justice Bills in the same way that the previous Government did.

I will not let the hon. Gentleman’s description of police and crime panels as “toothless” go. He is repeating this, but we had an extensive debate about police and crime panels during which I noted that the panels now have powers of veto in two key areas, as well as a lot of other powers. It is not possible to say that a body is toothless when it has the power of veto over a proposal made by a democratically elected figure, which the police and crime commissioner is. That is simply an inappropriate description. It is valid to argue that it should have more powers, but to say that it is toothless actually takes a rhetorical attack on police and crime panels rather too far.

The hon. Gentleman raised the issue of what he has called a code of practice on the operational independence of chief constables, and that has been an important debate in the Committee. I will not rehearse our discussion, but I will respond to what he is trying to secure through this new clause. First, I reiterate my commitment on Second Reading to introduce what I then called a protocol to govern this relationship. I said on 13 December:

The Chairman of the Committee suggested that a memorandum of understanding might be the means by which that”— in other words, operational independence—

“could be achieved. That is a good idea and the Government have already said that we will sit down with ACPO once the Bill is enacted and agree an extra-statutory protocol—I am sure that we can discuss these issues as the Bill makes progress--that will set out the terms of agreement to ensure that operational independence is protected. There is agreement between us and ACPO--it is important that the Opposition understand this—that we should not seek to define operational independence in the Bill. That is a matter for case law.”—[Official Report, 13 December 2010; Vol. 520, c. 769.]

So although the terms “memorandum of understanding”, suggested by the Select Committee on Home Affairs, and “protocol”, which I proposed, having  discussed the matter with ACPO, have been used interchangeably—I may, myself, have used the term “memorandum of understanding”—it is the proposal for an extra-statutory protocol to which I committed myself on Second Reading. I was clear then that what I envisaged was that we should negotiate that with ACPO once the Bill was enacted. I see no reason why we should not begin work on this protocol. Indeed, I have already invited ACPO to do so. It is important that we make progress with this.

I accept the force of the hon. Gentleman’s argument that this is something in which Parliament will take an interest during the progress of the Bill. I also understand the force of his argument that this is something that Parliament will wish to debate when it is agreed. I take both of those points. I cannot commit now to an absolute deadline for when this document will be agreed. I cannot commit to that, because it requires us to sit down with ACPO and others. I just draw to his attention the fact that the memorandum of understanding in Northern Ireland—governing the new policing arrangements—has been under discussion for 11 years. I appreciate that that is Northern Ireland and there are particular sensitivities, but it is still not agreed. I do not want to be unrealistic and set an artificial timetable that cannot be met.

I accept the spirit in which the hon. Gentleman tabled the new clause—that it would help the Government to make progress. It would be helpful to everyone if we could make progress with the protocol and that is what I am saying to ACPO as well. I made the concession to have such a protocol precisely because I wished to reassure ACPO, and others considering the proposals, that we were serious about ensuring operational independence.

We need to be careful about the content of the protocol and giving further clarification. I hold to what I said, which is that we are not seeking to define operational independence in the document. It is right that we maintain the basic architecture, as we do in the Bill, that chief constables have control and direction of their forces. That is restated in the Bill and we do not seek to define operational independence. The hon. Gentleman mentioned Chris Sims, the chief constable of the West Midlands force. In his evidence to us, he confirmed that he did not wish to see operational independence defined. I believe that that is still the view of ACPO.

So we need to be careful about how much detail such a protocol should have. The protocol should clearly define, for the benefit of the parties concerned, their roles and responsibilities in a way that makes it easier to understand—rather than having to simply read the legislation—and which also draws on historical precedent. For example, such a document might use the words “operational independence”, which are not actually used in any legislation about control and direction. As to whether the protocol should go into any greater detail, that is highly questionable. We would then trespass into the area of seeking to define a relationship and a mode of operation that has been debated for many years in the courts. Ultimately, should there be a breakdown, that would have to be settled in the courts and I do not think we would get anywhere by that.

The various different parties would like clarity—as much clarity as we are able to give them. Those parties are not just the chief constable or the police and crime  commissioner. There are others in this new relationship too. The police and crime panels should have clarity about what their role is and what it is not. There are some who still believe that a police and crime panel should be about scrutinising a force. The protocol would have to remind police and crime panels that their job, as set out in the Bill, is to scrutinise the police and crime commissioner and his actions. The protocol, therefore, is intended to be a clarification of the responsibilities and working arrangements of the new bodies.

Another party to that relationship is the Home Office, and central Government. What is the role of the Home Office in the new landscape and of other agencies that form a part of the new national landscape; for example, the national crime agency? Once we start to consider that they too will be involved—the national crime agency is not involved yet as we have not introduced the legislation to create it, though we have announced that we wish to create it—I hope that the hon. Gentleman will see that this is not a document that will be drafted overnight. Equally, it is clearly a document that we need to have in place before 2012, because that is when those offices will take over and the elections will be held. That is in well over a year’s time, of course. I am not suggesting that it should take that length of time to agree, but it would be unwise of us to be pushed into an artificial timetable to draw up this document.

There is also the question of the extent to which the document is affected by debate in this place and in the other place. I want the hon. Gentleman to understand that I am not dismissing what he is saying. It is desirable that Parliament should debate this and that something should be available for further stages of consideration of the Bill. I am realistic about not committing to an artificial timetable that I might not be able to deliver on, because it does not involve only the Government. That is the point.

Finally, we could further consider whether the protocol should be a statutory code of practice. This is not statutory guidance that then becomes part of the definition of operational independence itself. That would be a real problem. We need to be clear on what this is not. We can come to whether there should be statutory approval of the protocol in due course, but we are not yet at a place where we can decide that. I am trying to recognise the force of the points that the hon. Gentleman makes; I am not dismissing them and I accept that he is making them in good faith. I want to make rapid progress with ACPO in drawing up this protocol. I recognise that it wants the protocol, too, and that it would be helpful to further consideration if we had a draft, but I cannot commit to a firm timetable at this point. Also, this should not be a statutory document subject to statutory approval before we have discussed the nature of the document further with the various parties. This is an ongoing debate, not the end of the debate.